04 wetland legislation

The New Isolated Wetlands Regulatory Program: 

The New Isolated Wetlands Regulatory Program

Introduction: 

Introduction Legislation highlights Goals Exemptions Types of Permits Mitigating wetland loss Rule process WPCB Responsibilities Key dates Discussion Items Definitions Permit review Classification

Goals: 

Goals Promote a net gain in high quality isolated wetlands; and Assure that compensatory mitigation will offset the loss of isolated wetlands allowed by the permitting program.

Exempt Isolated Wetlands: 

Exempt Isolated Wetlands There are 13 different situational exemptions including: 6 types of incidental features 3 dealing with private ponds, man made water bodies, and pollution control structures 2 size exemptions (½ acre for Class I & ¼ acre for Class II) 2 dealing with agricultural land (in addition to the ag. incidental feature and activity exemptions)

Size Exemption Limits: 

Size Exemption Limits The number of size exemptions on a particular tract is limited. For Class I this limit is either: the total acreage of the largest individual isolated wetland on the tract < ½ acre, or 50% of the cumulative acreage of all individual isolated wetlands on the tract < ½ acre For Class II this limit is either: The total acreage of the largest individual isolated wetland on the tract < ¼ acre, or 33 1/3% of the cumulative acreage of all individual isolated wetlands on the tract

Size Exemption Limit Example: 

Size Exemption Limit Example Delineate all the wetlands on the tract. Remove from consideration: Connected wetlands Class 2 wetlands larger than ¼ acre Class 1 wetlands larger than ½ acre Calculate Class 2 exemption: Identify the largest Class 2 still under consideration (0.14 acres). Sum the acreage of all Class 2 wetlands still under consideration (0.33 acres) and divide by 3 (0.11 acres). Take the larger of the two, in this case 0.14 acres. Calculate Class 1 exemption: Identify the largest Class 1 still under consideration (0.22 acres). Sum the acreage of all Class 1 wetlands still under consideration (0.87 acres) and divide by 2 (0.44 acres). Take the larger of the two, in this case 0.44 acres.

Exemption Exceptions: 

Exemption Exceptions An isolated wetland that may have otherwise been exempt is NOT exempt if: the wetland is used for compensatory mitigation; or the owner of the wetland declares that it is a state regulated wetland

Activity Exemptions: 

Activity Exemptions de minimis activities Surface coal mining Clean Water Act section 404(f) activities (normal agriculture, maintenance, etc.)

Types of Permits: 

Types of Permits General Permit No site specific conditions Analogous to the USACOE’s Nationwide Permits Minimal impacts to Class I or Class II Class I Wetland Permit No site specific conditions Required for impacts to Class I State Regulated Wetlands (SRW) not covered by the minimal impact general permit Class II & Class III Wetland Permit Can have site specific conditions Required for more than minimal impacts to Class II and any impact to Class III Cannot be required for a Class I

Permitting Timeframes: 

Permitting Timeframes Completeness review GP & Class 1 Class 2/3 & 401 Number of Days Allowed Completeness is presumed after 15 days. Presumptive permit issuance after review period expires. Review

Mitigation: Avoidance, Minimization, and Compensation: 

Mitigation: Avoidance, Minimization, and Compensation General Permit Avoidance/minimization not required Compensatory mitigation may be required Class I Wetland Permit Avoidance/minimization not required Compensatory mitigation may be required

Mitigation: Avoidance, Minimization, and Compensation: 

Mitigation: Avoidance, Minimization, and Compensation Class II Wetland Permit Avoidance: without reasonable alternative (local decision) reasonably necessary or appropriate (local decision) Minimization not required Compensatory mitigation may be required

Mitigation: Avoidance, Minimization, and Compensation: 

Mitigation: Avoidance, Minimization, and Compensation Class III Wetland Permit Avoidance: without reasonable alternative (local decision) reasonably necessary or appropriate (local decision) Without practical alternative Minimization is required Compensatory mitigation may be required

Compensatory Mitigation Location: 

Compensatory Mitigation Location Off-site location must be: within the same county, or the same 8-digit watershed

Compensatory Mitigation Ratios: 

Compensatory Mitigation Ratios

Road map: 

Road map Legislation highlights Goals Exemptions Types of Permits Mitigating wetland loss Rule process WPCB Responsibilities Key dates Discussion Items Definitions Permit review Classification

WPCB Responsibilities: 

WPCB Responsibilities Adopt general permit rules by February 1, 2005 Adopt classification rules by February 1, 2005 Adopt individual permit rules by June 1, 2005 Designate, via rule, outstanding state protected wetlands Rescind, via rule, outstanding state protected wetland status

Key Dates: 

Key Dates 1/1/2004 Certain wetland losses grandfathered 2/1/2005 Adopt rules for: a) part of the Class I definition; b) general permits 6/1/2005 Adopt rules for Class II and Class III Wetland Permits 1/1/2004 Unauthorized disturbance from this point on does not cause a change in class 6/1/2004 Application form, notice of registration 11/1/2004 EQSC Report 8/10/2004 Send § 7 notice of draft rule language to LSA 9/1/2004 Publish 2nd notice 11/10/2004 Preliminary adoption hearing and board action 1/1/2005 Publish preliminary adopted rules and 3rd notice if req. 2/1/2005 Final adoption hearing and board action

In the Meantime…: 

In the Meantime… Consistent with the statutes, IDEM shall: issue individual permits for wetland activities determine the class of wetlands for Class I wetlands, issue permits that are: Simple, streamlined & uniform Without site specific conditions

Road map: 

Road map Legislation highlights Goals Exemptions Types of Permits Mitigating wetland loss Rule process WPCB Responsibilities Key dates Discussion Items Definitions Permit review Classification

Definitions: 

Definitions Proposed process… Identify: What terms need to be defined? Categorize: Can we group the terms together by subject? Prioritize: Which terms must be defined by rule and which could be defined in non-rule policy? Develop: How should we word the definitions?

Permit Review: 

Permit Review Reasons for approval/denial of a permit Scope of the general permit General conditions Waiver of compensatory mitigation requirement Permitting projects with both isolated and federally jurisdictional wetlands Process for local “reasonable alternative” and “reasonably necessary or appropriate” decisions

Classification: 

Classification Class I Class II Class III

Class III Isolated Wetlands: 

An isolated wetland that is located in a setting undisturbed or minimally disturbed by human activity or development And that supports more than minimal wildlife or aquatic habitat or hydrologic function Class III Isolated Wetlands One of 18 rare or ecologically important types, e.g., fen, dune, swale, forested swamp. Unless it is: Significantly disturbed, or Low quality.

Rare or Ecologically Important Examples: 

Rare or Ecologically Important Examples Pipewort Pond, Elkhart Co., Muck flat & Sand flat Yost Pond, LaGrange Co., Acid Bog Oak Ridge Park Lake Co. Shrub Swamp Ritchey Woods, Hamilton Co., Seep

Class I Isolated Wetlands: 

At least 50% of the wetland has been disturbed or affected by human activity or development by: Removal or replacement of the natural vegetation Modification of the natural hydrology The wetland supports only minimal wildlife or aquatic habitat or hydrologic function because the wetland does not provide critical habitat for federally threatened or endangered species; and The wetland is characterized by at least one of the following: The wetland is typified by low species diversity; The wetland contains greater than 50% areal; coverage of non-native species of vegetation; The wetland does not support significant wildlife or aquatic habitat; The wetland does not possess significant hydrologic function. Class I Isolated Wetlands Rare & Important Class I

Significantly Disturbed Examples: 

Significantly Disturbed Examples Removal/replacement of natural vegetation, Miami Co. Modification of the Natural hydrology, Allen Co.

Low Quality: 

Low Quality Low Species Diversity, Marion Co. Non-native invasive ► species, Steuben Co.

Class II Isolated Wetlands: 

Class II Isolated Wetlands Rare & Important Class II Not a Class I or Class III wetland; or Would meet the Class I definition if the wetland were not a rare and ecologically important type.

Summary: 

Summary Legislation highlights Goals Exemptions Types of Permits Mitigating wetland loss Rule process WPCB Responsibilities Key dates Discussion Items Definitions Permit review Classification