Indiana Administrative Code › Title 327 - WATER POLLUTION CONTROL DIVISION › Article 17 - WETLAND ACTIVITY PERMITS › Rule 2 - General Permit for Minimal Impacts to State Regulated Wetlands › Section 2-2 - Applicability

Current through July 10, 2024
Authority: IC 13-18-3-1; IC 13-18-22-1; IC 13-18-22-7
Affected: IC 13-18-3; IC 13-18-4; IC 14-34
Sec. 2.
(a) This
				rule applies to persons proposing to undertake wetland activities in Class I
				and Class II SRWs that will have minimal impacts, as described in this
				rule.
(b) Wetland activities
				covered by this rule include the following:
(1) Activities related to the repair,
				rehabilitation, or replacement of any previously authorized, currently
				serviceable structure or fill or of any currently serviceable structure or fill
				authorized by this rule, 327 IAC 17-3, or 327 IAC 17-4, provided that the
				structure or fill is not to be put to uses differing from those uses specified
				or contemplated for it in the original permit or the most recently authorized
				modification. Minor deviations in the structure's configuration or filled area,
				including those due to changes in materials, construction techniques, or
				current construction codes or safety standards that are necessary to make
				repair, rehabilitation, or replacement are permitted, provided the adverse
				environmental effects resulting from the repair, rehabilitation, or replacement
				are minimal. As used in this subdivision, "currently serviceable" means usable
				as is or with some maintenance, but not so degraded as to essentially require
				reconstruction. A permit issued under this subdivision authorizes the repair,
				rehabilitation, or replacement of those structures or fills destroyed or
				damaged by storms, floods, fire, or other discrete events, provided the repair,
				rehabilitation, or replacement is commenced, or is under contract to commence,
				within two (2) years of the date of their destruction or damage. In cases of
				catastrophic events, such as tornadoes, this two-year limit may be waived by
				the commissioner, provided the permittee can demonstrate funding, contract, or
				other similar delays.
(2)
				Discharges of dredged or fill material, including excavation, into SRWs to
				remove accumulated sediments and debris in the vicinity of, and within,
				existing structures, for example, bridges, culverted road crossings, water
				intake structures, and the placement of new or additional riprap to protect the
				structure. The removal of sediment is limited to the minimum necessary to
				restore the wetland in the immediate vicinity of the structure to the
				approximate dimensions that existed when the structure was built, but cannot
				extend further than two hundred (200) feet in any direction from the structure.
				The placement of riprap must be the minimum necessary to protect the structure
				or to ensure the safety of the structure. All excavated materials must be
				deposited and retained in an upland area unless otherwise specifically approved
				by the commissioner under separate authorization. Any bank stabilization
				measures not directly associated with the structure will require a separate
				authorization from the commissioner.
(3) Discharges of dredged or fill material,
				including excavation, into SRWs, for activities associated with the restoration
				of upland areas damaged by a storm, flood, or other discrete event, including
				the construction, placement, or installation of upland protection structures
				and minor dredging to remove obstructions in a SRW. (Uplands lost as a result
				of a storm, flood, or other discrete event can be replaced without permit
				provided the uplands are restored to their original pre-event location. A
				permit issued under this subdivision is for the activities in SRWs associated
				with the replacement of the uplands.) The permittee should provide evidence,
				such as a recent topographic survey or photographs, to justify the extent of
				the proposed restoration. The restoration of the damaged areas cannot exceed
				the contours, or ordinary high water mark, that existed before the damage. The
				department retains the right to determine the extent of the preexisting
				conditions and the extent of any restoration work authorized by this permit.
				Minor dredging to remove obstructions from the adjacent wetland is limited to:
(A) fifty (50) cubic yards below the plane of
				the ordinary high water mark; and
(B) the amount necessary to restore the
				preexisting bottom contours of the wetland.
The dredging may not be done primarily to obtain fill for any
				  restoration activities. The discharge of dredged or fill material and all
				  related work needed to restore the upland must be part of a single and complete
				  project. This permit cannot be used in conjunction with subdivision (11) to
				  restore damaged upland areas. This permit cannot be used to reclaim historic
				  lands lost, over an extended period, to normal erosion processes. Any work
				  authorized by this permit must not cause more than minimal degradation of water
				  quality or increase flooding. A permit issued under this subdivision authorizes
				  the repair, rehabilitation, or replacement of any previously authorized
				  structure or fill that does not qualify for the
				  327 IAC 17-1-7(3)(B)
				   exemption for maintenance.
(4) Fish and wildlife harvesting
				devices and activities, such as duck blinds. A permit issued under this
				subdivision does not authorize impoundments and semi- impoundments of waters of
				the state for the culture or holding of motile species.
(5) The use of devices designed to measure
				and record scientific data, such as the following:
(A) Staff gauges.
(B) Water recording devices.
(C) Water quality testing and improvement
				devices.
(D) Similar
				structures.
(6) Survey
				activities including core sampling, seismic exploratory operations, plugging of
				seismic shotholes and other exploratory-type boreholes, soil survey, sampling,
				and historic resources. The following are not authorized under this
				subdivision:
(A) Discharges and structures
				associated with the recovery of historic resources.
(B) Drilling and the discharge of excavated
				material from test wells for oil and gas exploration. However, the plugging of
				such wells is authorized.
(C) Fill
				placed for roads, pads, and other similar activities.
(D) Permanent structures.
The discharge of drilling mud and cuttings may require a
				  permit under 327 IAC 5.
(7) Activities required for the construction,
				maintenance, and repair of utility lines and associated facilities in SRWs as
				follows:
(A) The construction, maintenance, or
				repair of utility lines, including outfall and intake structures and the
				associated excavation, backfill, or bedding for the utility lines, in all SRWs,
				provided there is no change in preconstruction contours. As used in this
				clause, a "utility line" means any:
(i) pipe
				or pipeline for the transportation of any gaseous, liquid, liquescent, or
				slurry substance, for any purpose; and
(ii) cable, line, or wire for the
				transmission for any purpose of electrical energy, telephone, and telegraph
				messages, and radio and television communication. Material resulting from
				trench excavation may be temporarily side cast (up to three (3) months) into
				SRWs, provided that the material is not placed in such a manner that it is
				dispersed by currents or other forces. The commissioner may extend the period
				of temporary side casting not to exceed a total of one hundred eighty (180)
				days, where appropriate. In wetlands, the top six (6) inches to twelve (12)
				inches of the trench should normally be backfilled with topsoil from the
				trench. Furthermore, the trench cannot be constructed in such a manner as to
				drain SRWs, for example, backfilling with extensive gravel layers, creating a
				french drain effect. For example, utility line trenches can be backfilled with
				clay blocks to ensure that the trench does not drain the SRWs through which the
				utility line is installed. Any exposed slopes and stream banks must be
				stabilized immediately upon completion of the utility line crossing of each
				SRW.
(B) The
				construction, maintenance, or expansion of a substation facility associated
				with a power line or utility line, provided that the activity does not result
				in the loss of greater than one-half (½) acre of SRWs.
(C) The construction or maintenance of
				foundations for overhead utility line towers, poles, and anchors in all SRWs,
				provided the foundations are the minimum size necessary and separate footings
				for each tower leg (rather than a larger single pad) are used where
				feasible.
(D) The construction of
				access roads for the construction and maintenance of utility lines, including
				overhead power lines and utility line substations, in SRWs, provided the
				discharges do not cause the loss of greater than one-half (½) acre of
				SRWs. Access roads shall be the minimum width necessary. Access roads must be
				constructed so that the length of the road minimizes the adverse effects on
				SRWs and as near as possible to preconstruction contours and elevations, for
				example, at grade corduroy roads or geotextile/gravel roads. Access roads
				constructed above preconstruction contours and elevations in SRWs must be
				properly bridged or culverted to maintain surface flows. As used in this
				clause, "utility line" does not include activities that drain a SRW, such as
				drainage tile or french drains; however, the term does include pipes conveying
				drainage from another area. For purposes of this clause, the loss of SRWs
				includes the filled area plus SRWs that are adversely affected by flooding,
				excavation, or drainage as a result of the project.
Activities authorized by clauses (A) through (C) may not
				  exceed a total of one-half (½) acre loss of SRWs. SRWs temporarily
				  affected by filling, flooding, excavation, or drainage, where the project area
				  is restored to preconstruction contours and elevation, are not included in the
				  calculation of permanent loss of SRWs. This includes temporary construction
				  mats, for example, timber, steel, and geotextile, used during construction and
				  removed upon completion of the work. Where certain functions and values of SRWs
				  are permanently adversely affected, such as the conversion of a forested
				  wetland to a herbaceous wetland in the permanently maintained utility line
				  right-of-way, mitigation will be required to reduce the adverse effects of the
				  project to the minimal level. Mechanized land clearing necessary for the
				  construction, maintenance, or repair of utility lines and the construction,
				  maintenance, and expansion of utility line substations, foundations for
				  overhead utility lines, and access roads is authorized, provided the cleared
				  area is kept to the minimum necessary and preconstruction contours are
				  maintained as near as possible. The area of SRWs that is filled, excavated, or
				  flooded must be limited to the minimum necessary to construct the utility line,
				  substations, foundations, and access roads. Excess material must be removed to
				  upland areas immediately upon completion of construction. Access roads used for
				  both construction and maintenance may be authorized, provided they meet the
				  terms and conditions of this rule. Access roads used solely for construction of
				  the utility line must be removed upon completion of the work and the area
				  restored to preconstruction contours, elevations, and wetland
				  conditions.
(8)
				Return water from upland, contained dredged material disposal area. The
				dredging itself may require a permit under IC 13-18-22-1. The return water from
				a contained disposal area is administratively defined as a discharge of dredged
				material, even though the disposal itself occurs on the upland and does not
				require an IC 13-18-22-1 permit.
(9) Activities in SRWs associated with the
				restoration of former wetlands, the enhancement of degraded wetlands and
				riparian areas, the creation of wetlands and riparian areas, and the
				restoration and enhancement of streams and open water areas as follows:
(A) The activity is conducted on any of the
				following:
(i) Nonfederal public lands and
				private lands, in accordance with the terms and conditions of a binding wetland
				enhancement, restoration, or creation agreement between the landowner and the
				U.S. Fish and Wildlife Service (FWS).
(ii) Reclaimed surface coal mine lands
				subsequent to reclamation bond release and termination of OSM/IDNR jurisdiction
				under the Surface Mining Control and Reclamation Act and IC 14-34. The future
				reversion does not apply to streams or wetlands created, restored, or enhanced
				as mitigation for the mining impacts, or naturally due to hydrologic or
				topographic features, or for a mitigation bank.
(iii) Other public or private
				lands.
(B) Planting of
				only native species shall occur on the site.
Activities authorized by this subdivision include, to the
				  extent that a permit is required under IC 13-18-22-1, the removal of
				  accumulated sediments; the installation, removal, and maintenance of dikes and
				  berms; the construction of small nesting islands; the construction of open
				  water areas; activities needed to reestablish vegetation, including plowing or
				  discing for seed bed preparation and the planting of appropriate wetland
				  species; mechanized land clearing to remove nonnative invasive, exotic, or
				  nuisance vegetation; and other related activities. This subdivision does not
				  authorize the conversion of natural wetlands to another aquatic use, such as
				  creation of waterfowl impoundments where a forested wetland previously existed.
				  However, this subdivision authorizes the relocation of wetlands on the project
				  site provided there are net gains in aquatic resource functions and values. For
				  example, this subdivision may authorize the creation of an open water
				  impoundment in an emergent wetland provided the emergent wetland is replaced by
				  creating that wetland type on the project site. For enhancement, restoration,
				  and creation projects conducted under item (iii), this subdivision does not
				  authorize any future discharge of dredged or fill material associated with the
				  reversion of the area to its prior condition. In such cases, a separate permit
				  would be required for any reversion if not otherwise exempt under this article.
				  For restoration, enhancement, and creation projects conducted under items (i)
				  and (ii), this subdivision also authorizes any future discharge of dredged or
				  fill material associated with the reversion of the area to its documented prior
				  condition and use, that is, prior to the restoration, enhancement, or creation
				  activities if a permit is otherwise required under this article for such
				  reversion activities. The reversion must occur within five (5) years after
				  expiration of a limited term wetland restoration or creation agreement or
				  permit, even if the discharge occurs after a permit issued under this
				  subdivision expires. This subdivision also authorizes the reversion of wetlands
				  that were restored, enhanced, or created on prior-converted cropland that has
				  not been abandoned, in accordance with a binding agreement between the
				  landowner and NRCS or FWS (even though the restoration, enhancement, or
				  creation activity did not require an IC 13-18-22-1 permit). The five-year
				  reversion limit does not apply to agreements without time limits reached under
				  item (i). The prior condition will be documented in the original agreement or
				  permit, and the determination of return to prior conditions will be made by the
				  federal agency or appropriate state agency executing the agreement or permit.
				  Before any reversion activity, the permittee or the appropriate federal or
				  state agency must notify the commissioner and include the documentation of the
				  prior condition. Once an area has reverted to its prior physical condition, it
				  will be subject to whatever regulatory requirements are applicable at that
				  future date.
(10) Discharges of dredged or fill material
				and maintenance activities that are associated with moist soil management for
				wildlife performed on federally-owned or managed property, state-owned or
				managed property, and local government agency-owned or managed property, for
				the purpose of continuing ongoing, site-specific, wildlife management
				activities where soil manipulation is used to manage habitat and feeding areas
				for wildlife. Such activities include the following:
(A) The repair or maintenance of
				dikes.
(B) Plowing or discing to
				impede succession, prepare seed beds, or establish fire breaks.
Sufficient vegetated buffers must be maintained adjacent to
				  all open waterbodies, streams, et cetera, to preclude water quality degradation
				  due to erosion and sedimentation. This subdivision does not authorize the
				  construction of new dikes, roads, water control structures, et cetera,
				  associated with the management areas. This subdivision does not authorize
				  converting wetlands to uplands, impoundments, or other open waterbodies.
(11) New construction,
				agriculture, and mining activities. The following activities are authorized:
(A) New construction activities associated
				with the construction or installation of new facilities or structures.
				Typically, these include residential, commercial, industrial, institutional,
				and recreational activities. These activities include:
(i) filling and grading;
(ii) dredging;
(iii) stormwater, sediment, and erosion
				control activities; and
(iv) roads,
				infrastructures, and utilities; provided the individual and cumulative impacts
				are minimal.
(B)
				Agriculture and mining activities. These include work or discharges of dredged
				or fill material associated with the following:
(i) Buildings or work pads.
(ii) Stock piling of material.
(iii) Staging, loading, and unloading
				areas.
(iv) Roads.
(v) Land leveling.
(vi) Berms, dikes, dams, and ditch
				construction.
(vii) Drainage
				facilities.
(viii) Erosion and
				water control activities. This subdivision does not affect those agricultural
				and mining activities that are exempt in accordance with
				327 IAC
				17-1-7.
(C) Discharges of dredged or fill material
				authorized by this subdivision are limited to one-tenth (0.1) acre or less of
				SRWs.
(D) Authorization of
				activities under this rule does not substitute for any separate authorizations
				required by other local, state, or federal requirements.
(E) Activities that the department determines
				to have the potential to cause unacceptable adverse impacts on aquatic
				resources or other public interest factors are not authorized by this
				subdivision.
(F) The department may
				on a case-by-case basis require a 327 IAC 17-3 or 327 IAC 17-4 permit. The
				department will notify the applicant that the project does not qualify for a
				general permit under this rule and instruct the applicant on the procedures to
				seek authorization under the 327 IAC 17-3 or 327 IAC 17-4 permit. The
				department may also require a 327 IAC 17-3 or 327 IAC 17-4 permit for any:
(i) after-the-fact applications; or
(ii)  unauthorized activity;
or both, regardless of whether or not the discharge meets the
				  area limitation specified in clause (C).