In House Bill 1383, the Indiana General Assembly has updated Indiana’s State Wetland (or “Isolated Wetland”) program to provide clarity in distinguishing between Class II and Class III wetlands that have been disturbed or impacted by human activities.  Broadly speaking – the Class III designation has been reserved for the most ecologically valuable and rare wetlands, especially those that have not been impacted by human activities and development whereas Class II wetlands were of less ecological value or had more significant impacts. 

Questions arose when rare types of wetlands had been impacted by human activities – and the changes made to the definitions in Ind. Code §13-11-2-25.8 by HB 1383 make it clear which types of wetlands will always be Class III wetlands and which wetlands will only be downgraded to Class II if they have been disturbed by development.  Wetland classifications are important to anyone seeking to develop in areas that potentially contain wetlands because the classification determines how much mitigation will be required before a permit will be granted to impact the wetlands.  Currently, Class I wetlands are exempt (and no mitigation is required).  Class II wetlands (unless they are small enough to be exempt) and Class III wetlands require higher levels of mitigation, with Class III forested wetlands requiring the highest levels of mitigation and compensation.

Additionally, prior to HB 1383, Class II wetland were considered exempt if their areas are less than three-eighths of an acre by definition (see Ind. Code §13-11-2-74.5).  However, the prior wetland law did not require a permit if the Class II wetland was less than three-fourths of an acre and is located within the boundaries of a municipality.  To erase confusion – rather than saying such wetlands within municipalities do not require a permit, the definition of exempt Class II wetlands was clarified to include these Class II wetlands less than ¾ of an acre within municipalities.  The practical effect is the same – but the regulatory scope is now clear.

HB 1383 has provided greater flexibility to allow permittees to address how they will provide replacement and mitigation for any wetlands that they may impact.  The current law only allows onsite or offsite compensatory mitigation or the payment of in lieu fees for the Indiana Stream and Wetland Mitigation Program.  The new bill allows permittees to meet their obligation through a combination of creation [of new wetlands], restoration [of old wetlands], or permanent preservation of wetlands.  Creation or restoration of at least one acre will be required for each acre lost through permitting, but the remaining obligation can be met through enhancing other wetlands, by permanently protecting nearby wetland with a deed restriction.  This flexibility allows IDEM and permittees to actually protect high quality wetlands indefinitely into the future while ensuring that at least one acre of wetland is created/restored for each non-exempt Class II and Class III wetland taken through development.

This was the first bill signed by the Governor in the 2024 legislative session on February 12, 2024, and it will become effective on July 1, 2024.

Categorized: News

Tagged In: Environmental, Environmental Law, HB 1383, Indiana, Isolated Wetland, Wetland