Section 327 IAC 17-1-3 - DefinitionsAuthority: IC 13-18-3-1; IC 13-18-22-2; IC 13-18-22-7
Affected: IC 13-18-3; IC 13-18-4; IC 13-18-22
Sec. 3.
The following definitions apply throughout this article:
(1) "Class I wetland" means an isolated wetland described by one (1) or both of the following: (A) At least fifty percent (50%) of the wetland has been disturbed or affected by human activity or development by one (1) or more of the following: (i) Removal or replacement of the natural vegetation.(ii) Modification of the natural hydrology.(B) The wetland supports only minimal wildlife or aquatic habitat or hydrologic function because the wetland does not provide critical habitat for threatened or endangered species listed in accordance with the Endangered Species Act of 1973 (16 U.S.C. 1531 et seq.) and the wetland is characterized by at least one (1) of the following: (i) The wetland is typified by low species diversity.(ii) The wetland contains greater than fifty percent (50%) areal coverage of nonnative invasive species of vegetation.(iii) The wetland does not support significant wildlife or aquatic habitat.(iv) The wetland does not possess significant hydrologic function.(2) "Class II wetland" means either of the following: (A) An isolated wetland that is not a Class I or Class III wetland.(B) A type of wetland listed in subdivision (3)(B) that would meet the definition of Class I wetland if the wetland were not a rare or ecologically important type.(3) "Class III wetland" means an isolated wetland: (A) that: (i) is located in a setting undisturbed or minimally disturbed by human activity or development; and(ii) supports more than minimal wildlife or aquatic habitat or hydrologic function; or(B) unless classified as a Class II wetland under subdivision (2)(B), that is of one (1) of the following rare and ecologically important types: (xviii) Wet floodplain forest.(4) "Clean Water Act" refers to: (A)33 U.S.C. 1251 et seq.; and(B) regulations adopted under 33 U.S.C. 1251 et seq.(5) "Compensatory mitigation" means the restoration or creation of wetlands to offset or compensate for a loss of wetlands resulting from an authorized wetland activity. Wetlands enlargement, enhancement, and preservation may be considered compensatory mitigation on a case-by-case basis, particularly for Class III wetlands.(6) "Dredged material" means material that is dredged or excavated from an isolated wetland.(7) "Exempt isolated wetland" means the following: (A) An isolated wetland that is a voluntarily created wetland unless: (i) the wetland is: (AA) approved by the department for compensatory mitigation purposes in accordance with a permit issued under Section 404 of the Clean Water Act or IC 13-18-22; or(BB) reclassified as an SRW under IC 13-18-22-6 (c); or (ii) the owner of the wetland declares, by a written instrument: (AA) recorded in the office of the recorder of the county or counties where the wetland is located; and(BB) filed with the department; that the wetland is to be considered in all respects to be an SRW. (B) An isolated wetland that exists as an incidental feature in or on any of the following: (ii) A lawn or landscaped area of a commercial or governmental complex. (vi) A manmade drainage control structure. (C) An isolated wetland that is a fringe wetland associated with a private pond.(D) An isolated wetland that is, or is associated with, a manmade body of surface water of any size created by: (iii) excavating and diking; dry land to collect and retain water for or incidental to agricultural, commercial, industrial, or aesthetic purposes.(E) An isolated wetland that is a Class I wetland with an area, as delineated, of one-half (1/2) acre or less.(F) An isolated wetland that is a Class II wetland with an area, as delineated, of one-fourth (1/4) acre or less.(G) An isolated wetland that is located on land: (i) subject to regulation under the United States Department of Agriculture wetland conservation rules, also known as Swampbuster (16 U.S.C. 3801-3862), because of voluntary enrollment in a federal farm program; and (ii) used for agricultural or associated purposes allowed under the rules referred to in this clause.(H) For purposes of clause (B), an isolated wetland exists as an incidental feature: (i) if: (AA) the owner or operator of the property or facility described in clause (B) does not intend the isolated wetland to be a wetland;(BB) the isolated wetland is not essential to the function or use of the property or facility; and (CC) the isolated wetland arises spontaneously as a result of damp soil conditions incidental to the function or use of the property or facility; and (ii) if the isolated wetland satisfies any other factors or criteria established in rules that are: (AA) adopted by the board; and(BB) not inconsistent with the factors and criteria described in this clause. (I) The total acreage of Class I wetlands on a tract to which the exemption described in clause (E) may apply is limited to the larger of the following: (i) The acreage of the largest individual isolated wetland on the tract that qualifies for the exemption described in clause (E).(ii) Fifty percent (50%) of the cumulative acreage of all individual isolated wetlands on the tract that would qualify for the exemption described in clause (E) but for the limitation of this subdivision. (J) The total acreage of Class II wetlands on a tract to which the exemption described in clause (F) may apply is limited to the larger of the following: (i) The acreage of the largest individual isolated wetland on the tract that qualifies for the exemption described in clause (F).(ii) Thirty-three and one-third percent (33 1/3%) of the cumulative acreage of all individual isolated wetlands on the tract that would qualify for the exemption described in clause (F) but for the limitation of this subdivision.(K) An isolated wetland described in clause (E) or (F) does not include an isolated wetland on a tract that contains more than one (1) of the same class of wetland until the owner of the tract notifies the department that the owner has selected the isolated wetland to be an exempt isolated wetland under clause (E) or (F) consistent with the applicable limitations described in clauses (I) and (J).(8) "Isolated wetland" means a wetland that is not subject to regulation under Section 404(a) of the Clean Water Act.(9) "Notice of intent" means a notice submitted by a person proposing the wetland activity as a prerequisite to applicability of a general permit under either 327 IAC 17-2 or 327 IAC 17-3. This notice must contain the following information: (A) An identification of the wetlands to be affected by the wetland activity including the following: (i) The location of the tract and location of the wetlands on the tract. (ii) A delineation of all wetlands on the tract.(iii) A classification of all SRWs on the tract.(iv) A description of the proposed wetland activities and project at the site.(v) For the purpose of making the determinations at subdivision (7)(A) and (7)(K), section 4 of this rule, IC 13-18-22-2 (c), IC 13-18-22-10, and IC 13-18-22-11, the person proposing the activity shall disclose dates for the following: (AA) Actions that disturb or affect isolated wetlands under subdivision (1)(A) that occurred after January 1, 2004.(BB) Wetland activities exempted by subdivision (7)(E) or (7)(F) that occurred after January 1, 2004.(CC) Voluntary creations of isolated wetlands under subdivisions (7)(A) and (12).(DD) Restoration of isolated wetlands under IC 13-18-22-2 (c).(EE) Filling, draining, or elimination by other means of isolated wetlands not removed from the department's authority by IC 13-18-22-10.(FF) Wetland activities that occurred on land previously exempted by subdivision (7)(G) if: (aa) the land is no longer subject to; and(bb) the wetland activities were not in compliance with; the United States Department of Agriculture wetland conservation rules.(B) A compensatory mitigation plan to reasonably offset the loss of wetlands allowed, unless an exception to mitigation has been granted by the department under section 6 of this rule.(C) A statement signed by the applicant stating, "I certify under penalty of law that this document and all attachments were prepared under my direction or supervision in accordance with a system designed to assure that qualified personnel properly gather and evaluate the information submitted. The information submitted is, to the best of my knowledge and belief, true, accurate, and complete. I am aware that there are significant penalties for submitting false information including the possibility of fine and imprisonment for knowing violations.".(D) Correspondence from the United States Army Corps of Engineers (USACOE) that states that the wetland is not subject to regulation under Section 404(a) of the Clean Water Act.(10) "State regulated wetland" or "SRW" means an isolated wetland located in Indiana that is not an exempt isolated wetland.(11) "Tract" means any area of land that is: (A) under common ownership; and(B) contained within a continuous border.(12) "Voluntarily created wetland", for purposes of this article, means an isolated wetland that: (A) was restored or created in the absence of a governmental order, directive, or regulatory requirement concerning the restoration or creation of the wetland; and(B) has not been applied for or used as compensatory mitigation or another regulatory purpose that would have the effect of subjecting the wetland to regulation as waters by: (ii) another governmental entity.(13) "Waters" means the accumulations of water, surface and underground, natural and artificial, public and private, or a part of the accumulations of water that are wholly or partially within, flow through, or border upon Indiana. The term does not include any of the following: (A) An exempt isolated wetland.(C) An off-stream pond, reservoir, wetland, or other facility built for reduction or control of pollution or cooling of water before discharge. The term includes all waters of the United States, as defined in Section 502(7) of the federal Clean Water Act (33 U.S.C. 1362(7)), that are located in Indiana.
(14) "Waters of the United States" means waters described by 33 CFR 328.3(a)(3).(15) "Wetland activity" means the discharge of dredged or fill material into an isolated wetland.(16) "Wetlands" means areas that are inundated or saturated by surface or ground water at a frequency and duration sufficient to support and that, under normal circumstances, do support a prevalence of vegetation typically adapted for life in saturated soil conditions. The term generally includes the following: (17) "Wetlands delineation" or "delineation", for purposes of this rule, means a technical assessment of: (A) whether a wetland exists on an area of land; and(B) if so, the type and quality of the wetland based on the presence or absence of wetlands characteristics, as determined consistently with the Wetlands Delineation Manual, Technical Report Y-87-1 of the United States Army Corps of Engineers.Water Pollution Control Board; 327 IAC 17-1-3; filed May 25, 2005, 10:45 a.m.: 28 IR 2969; readopted filed Jun 15, 2011, 11:15 a.m.: 20110713-IR-327110193BFA; readopted filed Jun 29, 2017, 9:34 a.m.: 20170726-IR-327170225BFA;Filed 9/6/2018, 11:50 a.m.: 20181003-IR-327170278FRAReadopted filed 5/12/2023, 1:07 p.m.: 20230607-IR-327230079BFA