Navigating the Flow of Water Permitting By Aileen Driscoll, MS, MPA, PWS, CESSWI
Construction within Indiana waterways can trigger the need for a variety of environmental permits, depending on the project type and location. Regardless of the project size, if you’re planning work in a wetland, stream, or open water feature, it is likely you’ll need a Section 404 Permit from U.S. Army Corps of Engineers (USACE), a Section 401 Water Quality Certification (WQC) from the Indiana Department of Environmental Management (IDEM), or an isolated wetland permit from IDEM depending on how the waterway is classified.
Section 404 and Section 401 are components of the Clean Water Act that authorize USACE to regulate the placement of fill materials in Waters of the U.S. (aka jurisdictional waters) and authorize states to certify or deny those USACE permits, respectively. For those waterways that don’t fall within the seemingly ever-evolving definition of Waters of the U.S. (aka isolated wetlands), IDEM may still have regulatory authority via the State Regulated Wetland Law.
The first step to determine if you need one of the above permits or certificates is to see if there is a waterway present within your project area and to delineate its boundaries.
For streams, Section 404 and Section 401 only regulate placement of fill material below the ordinary high-water mark (OHWM) elevation of a stream. While it is frequently apparent whether there is a stream in your project area, OHWM determinations are technical decisions best left to the professional judgement of an experienced delineator to ensure compliance with the current USACE guidance. The delineator will also determine the flow regime of the stream (ephemeral, intermittent, or perennial). Keep in mind, what looks like a “ditch” to you, may meet the USACE definition of a stream. Most activities below the OHWM elevation will trigger the need for a permit, though there are ways to design around or above this elevation to avoid the need for permits.
.
For wetlands, it may or may not be apparent whether there are any in your project area. It is not as straightforward as identifying areas with standing water. For an area to be considered a wetland, it must be dominated by wetland vegetation, exhibit specific indicators of sustained wetland hydrology, and contain soils that exhibit certain color profiles at specific depth ranges. Under normal circumstances, if an area doesn’t meet all three criteria, then it is not considered a wetland. Once wetland presence is confirmed, an experienced delineator can mark the wetland boundaries. Any activity within those boundaries is regulated under Section 404 and Section 401, or Indiana’s State Regulated Wetland Law.
Open water features are waterways that neither meet the definition of a stream or wetland. Some open water features are regulated waterways, while others are not. The regulatory status of an open water feature can depend on a variety of factors; including but not limited to the site conditions prior to the open water construction and whether it is connected to other waterways. Regulatory determinations for open water features may rely on information beyond the project site.
The waterways identified on-site are documented in a wetland delineation report. If activities below the OHWM, outside wetlands, and open water features can be avoided, then a Section 404 and 401 or State Regulated Wetland permit is not needed.
If waterway impacts cannot be avoided, then the permitting process begins using
the developed wetland delineation report. The ever-evolving Waters of the U.S. definition mentioned earlier comes into play in determining whether an identified waterway is regulated under Section 404 and also Section 401[ME1] [KG2] , or not. The current high-level interpretation of the definition is that ephemeral streams (those that only flow when it rains) are not included in the current definition, and wetlands that are not physically abutting an intermittent or perennial stream are not included in the current definition. These waterways may not fall within the current definition of Waters of the U.S., but documentation is still needed from USACE and IDEM stating no permit is required before project activities can commence in the waterways (aka approved jurisdictional determination). During this process, IDEM may determine a waterway that isn’t regulated under Section 404 falls under the State Regulated Wetland Law and still requires a state level permit. Depending on the project impacts and the project timeline, it may be more beneficial to skip the approved jurisdictional determination, assume for permitting purposes that all waterways are jurisdictional, and submit a permit application.
USACE in Indiana has two established general permits for projects with minimal impacts: Nationwide Permits [ME3] [KG4] and the Regional General Permit. Each permit type has conditions a project must meet to fall within the scope of said permit. IDEM has issued a Water Quality Certification (WQC) for the USACE Regional General Permit and for certain project types within the Nationwide Permits. The WQCs contain additional conditions a project must meet to fall within the scope of the WQC. If a project does not meet the conditions of a USACE general permit and cannot be modified to do so, then a USACE Individual Permit is required. This is an extensive process that should be avoided if possible. Similarly, if a project does not meet the conditions of a general IDEM WQC, then a site-specific WQC is required. A permitting specialist can assess the waterway impacts associated with your project and determine which permit type and level will apply.
A key aspect of this permitting process is demonstrating that waterway impacts have been avoided and minimized to the fullest extent practicable. This occurs during design and construction. If proposed waterway impacts exceed the level deemed acceptable by USACE and IDEM, the agencies may require mitigation to offset the unavoidable impacts. Mitigation can take the form of designing, constructing, and monitoring a new jurisdictional wetland, isolated wetland, stream restoration, or forested riparian buffer along a stream. In Lieu Fee credits and wetland banking credits may also be available
to purchase in certain areas of the state.
Section 404 permits and Section 401 WQCs are commonly required for construction projects throughout Indiana. The process can take many paths depending on site conditions, project design, and project timelines. Remember to check your site for waterways early on in your project development to help guide you through the right processes!
