Summary of New Indiana Wetlands Act Signed By Governor Holcomb


On April 29, 2021, Governor Eric Holcomb signed the Senate Registration Act 389 (“SEA 389”), which makes significant changes to Indiana’s Remote Wetlands program as well as lesser changes to the 401 program. water quality certification. SEA 389 received strong support during the legislative process after passing the Indiana Senate (29-19), passing the Indiana House (58-40), and receiving an approval vote in the Senate (31 -19) on April 14, 2021.

SEA 389 does the following:

  • Exempts development of cropland that has been used for agricultural purposes for the five years immediately preceding development (or 10 years if the U.S. Army Corps of Engineers has confirmed that the site contains no jurisdictional water) from the requirements of permit for isolated wetlands.
  • Exempt all Class I wetlands from state regulations. Class I wetlands are isolated wetlands that have been previously disturbed by human activity or that support only wildlife, aquatic habitat, or minimal hydrological function.
  • Exempt Category II wetlands that are not more than 3 / 8th of an acre (0.375) from the regulations. Class II wetlands are isolated wetlands that support moderate habitat or hydrologic functions, but lack the presence or habitat of rare, threatened or endangered species. If more than one Class II wetland is on a parcel, additional restrictions apply.
  • Exempt dredging and backfilling activities in Category II wetlands of no more than 3/4 of an acre located in a municipality.
  • Codifies that the maintenance of field tiles in a Class II or III wetland must be authorized by a general permit.
  • Codifies that wetland activity in an ephemeral stream does not require a permit unless a permit is required under the Federal Clean Water Act (“CWA”). An ephemeral stream means that surface water flows or accumulates only in direct response to precipitation such as rain or snow.
  • Codifies a “compensatory charge” program for compensatory mitigation in situations where impacts on Class II or III wetlands are required.
  • Reduces the statutory deadline for IDEM to issue or deny an isolated wetland permit from 120 to 90 days.
  • Reduces IDEM’s legal time frame for processing a Section 401 request from 120 days to 90 days. Failure to make a decision within 90 days constitutes a waiver of certification. However, the new law requires applicants to contact the agency to request a “pre-coordination” meeting 30 days before applying.
  • Establishes a 14-member “Indiana Wetlands Task Force” to study Indiana wetlands and report to the Indiana General Assembly by November 1, 2022 In particular, the working group will seek and develop recommendations on: 1) reducing the costs incurred by builders to comply with wetland regulations; (2) the benefits of foraging for isolated wetlands; (3) the role of isolated wetlands in carbon dioxide storage; (4) strategies to avoid the isolated impact of wetlands during development; (5) strategies to encourage the preservation of existing isolated wetlands; (6) improving the permitting process for isolated wetlands; (7) review and recommend improvements to mitigation ratios; and (8) review and recommend improvements to the current “instead of” compensatory mitigation program.

The Indiana Builders Association supported the legislation saying that “SEA 389 strikes a balance between reasonable regulation of owners with isolated wetlands on their property and protection of the environment.” The association also said the new law will make housing more affordable by reducing the cost of development. “Federal, state and local regulations now account for about 25% of the cost of a home. It’s not sticks or bricks, but government regulations, such as Indiana’s Remote Wetlands Program, pushing housing prices to levels that are becoming out of reach for many Hoosiers.

It is important to keep in mind that SEA 389 will not affect federal wetland regulation in Indiana. Landowners will continue to be required to comply with section 404 of the CFA with respect to federally regulated wetlands. In addition, a CWA Section 401 certification is still required from IDEM, demonstrating that the proposed infill of jurisdictional wetlands will not degrade or violate state water quality standards.

The new law is available on the Indiana General Assembly website at: http://iga.in.gov/legislative/2021/bills/senate/389#document-f33557a9.


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