Federal, State, and Local Frameworks for Waterway Management

Several of the significant federal laws addressed to wetlands and drainage have been discussed previously, particularly in the chapter addressing Water Quality. "By and large the chief federal regulatory act concerning wetlands is the Clean Water Act." 20 Noteworthy for the present discussion is the definition of "wetlands" contained within regulations to assist in implementation of Section 404 of the Clean Water Act. "Wetlands" are "those 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. Wetlands gene rally include swamps, marshes, bogs and similar areas."²¹

Another significant federal enactment is the Rivers and Harbors Act. Beginning in the 1960s, the Army Corps determined it should protect wetlands for ecological reasons if those wetlands are within or affect the navigable waters of the United States.²²

A third significant federal enactment is the Farm Bill of 1985²³ which placed some enforcement authority to conserve wetlands in the U.S. Department of Agriculture. The "Swampbuster" provisions of the bill provided for the denial of Department of Agriculture Benefits to farmers who drain or clean wetlands to grow crops.²⁴

Under the Clean Water Act, the Administrator of the Environmental Protection Act has the ultimate authority to determine the geographic scope of "waters of the United States." This authority extends to the 404 regulatory program administered by the Army Corps of Engineers.²⁵ A Memorandum of Agreement between the Corps and the EPA defines the Corps administration of the Section 404 program.²⁶

Authority exercised through Section 404 of the Clean Water Act by the Environmental Protection Agency and the Corps of Engineers overlaps the authority of the U.S. Department of Agriculture and the U.S. Fish and Wildlife Service regarding wetlands regulated under the Food Security Act. In January 1994, a Memorandum of Agreement was entered by the four federal agencies to provide a consistent procedure for wetlands delineations. The procedure is used by the U.S. Department of Agriculture under the Food Security Act for purposes of the Clean Water Act.²⁷


State Legislation and Rules

As with federal legislation, many of the statutes and rules discussed in the chapter addressing Water Quality also have pertinence to wetlands and drainage. A few of the enactments are also discussed in the chapter pertaining to Water Quantity. Several of these laws are also reviewed below, however, from the slightly different context of this chapter.

Wetlands

The Water Pollution Control Board may adopt rules which restrict "the polluting content of any waste material and polluting substances discharged or sought to be discharged into any streams or waters of Indiana." 28 The Board's authority extends to all waters of the state.²⁹

The Indiana Department of Environmental Management is responsible for the review of projects requiring Section 401 water quality certification under the Clean Water Act.³⁰ Section 401 requires an applicant to obtain certification from a state that the discharge of dredged or fill materials will not violate the water quality standards of the state. The Army Corps of Engineers cannot complete its processing of the permit until the state provides Se ction 401 certification or waives the right.³¹

Indiana's water quality standards include policies of maintenance of existing uses and nondegradation of water quality in waters of the state. Prohibited are projects whose impacts would cause or contribute to a polluted condition or which would adversely impact water quality. ³² Issuance by IDEM of Section 401 water quality certification indicates the project complies with Indiana's water quality standards.

Section 305(b) of the Clean Water Act requires states to report to Congress every two years on their activities and the progress they have made toward meeting the goals of the act. According to the Indiana 1992-1993 305(b) Report, Indiana through its 401 Water Quality Certification Program, obtains approximately three acres of wetlands for every acre of wetlands lost. The actual, effective mitigation ratio is probably much less. The Indiana Department of Environmental Management hopes to follow-up on approved mitigation plans and when necessary, enforce the correct execution of these plans. To date, the program does not have a monitoring component that ensures compliance with mitigation requirements or to monitor the quality of reconstructed wetlands. ³³

In 1992, the Indiana Department of Environmental Management denied Section 401 water quality certification for nine general ("nationwide") permits of the Army Corps. Most significant to wetlands issues were the denials of Nationwide Permit 26 and Nationwide Permit 18. Nationwide Permit 26 may be applied to projects in isolated wetlands of less than one acre, and Nationwide Permit 18 includes discharges into specified aquatic sites, some of which include wetlands. More than 80% of the projects reviewed by IDEM for Section 401 water quality certification involve wetlands less than one acre. ³⁴

Also pertinent to wetlands management at the state level is legislation pertaining to water rights and providing for water resource management. "Water in a natural stream, natural lake, or another natural body of water in Indiana that may be applied to a useful and beneficial purpose" is a "natural resource and public water of Indiana" subject to control and regulation for the public welfare.³⁵ The Indiana Natural Resources Commission is charged with the management of the state's water resources, including surface waters. ³⁶ "Surface waters" includes those in streams, lakes, ponds, swales, and marshes.³⁷ One of the responsibilities of the Commission, with public input, is to develop "plans and recommendations for the development, conservation, and use of the water resource to best serve the needs of the people of Indiana for beneficial uses."³⁸

Pursuant to the Flood Control Act,³⁹ the Department of Natural Resources exercises regulatory jurisdiction over wetlands located within floodways. For these purposes, a "wetland" is defined as a "transitional area between a terrestrial and deep water habitat (but not necessarily adjacent to a deep water habitat) where at most times the area is either covered by shallow water or the water table is at or near the surface and under normal circumstances," either:

(A) The area predominantly supports hydrophytes, at least periodically, or the substrate is predominantly undrained hydric solid, for example, peat or muck.
(B) The substrate is not a soil but is instead saturated with water or covered by shallow water some time during the growing season, for example, marl beaches or sand bars. ⁴⁰

Similarly, the Commission has exercised jurisdiction over wetlands within, but not outside, the shoreline of "public freshwater lakes."⁴¹ In an administrative proceeding, a definition of wetlands similar to that adopted by rule for floodways was used for public freshwater lakes.⁴²


Drainage

State legislation provides that drainage is largely controlled through county drainage boards. The Drainage Code is primarily concerned with excess water removal. 43 The focus of its impact is upon regulated drains.⁴⁴ The county surveyor is required to classify all regulated drains as being in need of: (1) reconstruction; (2) periodic maintenance; or (3) vacation. These classifications are themselves dependent upon the adequacy of the waterway to properly drain lands affected.⁴⁵

The Drainage Code does provide flexibility as to how the county may achieve proper drainage. Tiles may be deepened or widened, drains extended or courses changed, drainage basins and control dams constructed, erosion control and grade stabilization structures provided, or any other "major change to a drainage system that would be of public utility."⁴⁶

Utilizing this flexibility, counties have occasionally looked to wetlands as an element of drainage control. For example, the Steuben County Drainage Board has applied county drainage funds to purchase easements adjacent to a regulated drain in order to recreate wetlands that can store water and reduce downstream stormwater impacts.⁴⁷ Wetlands were also included in the purchase of 886 acres in southern Lake County adjacent to the Kankakee River as part of the North American Waterfowl Management Plan, and these wetlands can assist in the implementation of the wide levee concept and the multicounty watershed management efforts of the Kankakee River Basin Commission.⁴⁸

Until recently, however, the Drainage Code made no direct reference to wetlands or even to the broader environmental concerns posed by other waterway management programs. In 1995, Public Law 180 ⁴⁹ sought to provide advance coordination for a project to reconstruct or maintain a regulated drain. An "onsite field investigation" is to be performed by a team including representatives from the county, the Indiana Department of Natural Resources, the Indiana Department of Environmental Management, and if applicable, the local soil and water conservation district. Restrictions are placed upon terms the Department of Natural Resources may place on a permit governed by the Flood Control Act. For example, the DNR may not "require or recommend" placing a conservation easement at the site of the proposed work. The parties are encouraged to use negotiations to achieve an agreement as to permitting terms.

In 1996, the Indiana General Assembly gave new authority to county drainage boards to remove obstructions to a "drain" or "natural surface watercourse. ⁵⁰" The latter term is defined to include "an area of the surface of the ground over which water from falling rain or melting snow occasionally and temporarily falls in a definable direction."⁵¹ A person may petition to remove an obstruction. Upon the receipt of a petition, the county surveyor performs an investigation and reports to the drainage board as to the findings of the investigation.⁵² If the county drainage board finds an obstruction exists and its removal will "promote better drainage of the petitioner's land" and "not cause unreasonable damage to the land of the respondents," the drainage board is required to find for the petitioner. ⁵³

The "Flood Control Act of 1945"⁵⁴ is also concerned with drainage, at least from the perspective of providing for relief from activities which would increase the likelihood or intensity of flooding. "To prevent and limit floods, all flood control works and structures and the alteration of natural or present watercourses of all rivers and streams in Indiana should be regulated, supervised, and coordinated in design, construction, and operation according to sound and accepted engineering practices so as to best control and minimize the extent of floods and reduce the height and violence of floods." ⁵⁵ Floodway construction permits are not to be authorized for projects which would "[a]dversely affect the efficiency of or unduly restrict the capacity of the floodway." ⁵⁶


Mitigation Banking

Federal Guidance

The Army Corps of Engineers, Environmental Protection Agency, Natural Resource Conservation Service, Fish and Wildlife Service, and National Marine Fisheries Service have developed a policy guidance 57 for the establishment, use, and operation of mitigation banks. The purpose of mitigation banks is to provide compensation for adverse impacts to wetlands and other aquatic resources. The guidance helps clarify how mitigation banks may be used to satisfy mitigation requirements of the Clean Water Act Section 404 permit program and the wetland conservation provision of the Food Security Act.

The policy defines "mitigation banking" as the "restoration, creation, enhancement, and in exceptional circumstances, preservation undertaken expressly for the purpose of compensating for unavoidable wetland losses in advance of development actions, when such compensation cannot be achieved at the development site or would not be as environmentally beneficial." ⁵⁸ The objective of a mitigation bank is to provide for the replacement of the chemical, physical and biological functions of wetlands and other aquatic resources which are lost as a result of authorized impacts. Using appropriate methods, the newly established functions are quantified as mitigation "credits" which are available for use by the bank sponsor or by other parties to compensate for adverse impacts ("debits"). The guidance document became effective December 28, 1995.⁵⁹

State Guidance

In 1997, the Natural Resources Commission adopted a policy guidance directed to wetlands and habitat mitigation.⁶⁰ The purpose of the guidance is to establish a general framework for the assessment and determination of wetlands or habitat compensatory mitigation where a construction project is likely to reduce or degrade an existing wetland or habitat. The DNR will reference the document when making licensing determinations and when commenting upon federal licenses, such as comments to the U.S. Army Corps of Engineers relative to Section 404.

The document indicates it is not intended to establish inflexible mitigation standards, but rather was formulated with the understanding "each parcel of real estate is unique and offers both challenges and opportunities which are peculiar to the parcel."

The document reflects that compensatory mitigation procedure may be accomplished by various methods. The procedure is often defined in terms of a ratio of units replaced to units altered. In other words, three acres may be replaced or reconstructed for one acre adversely impacted or destroyed. This compensatory mitigation is described as a ratio of 3:1. The document suggests varying ratios depending upon the type and value of the wetland to be disturbed.


Local Ordinances

Several local units of government in Northwest Indiana are considering or have adopted wetland protection ordinances. Among them are Beverly Shores, Porter County, and LaPorte. 61

The LaPorte effort is illustrative. Ordinance No. 5-91 amended the municipal code in 1990 to create a wetlands conservation district and to provide for the protection of wetlands. The ordinance also sought to restrict the development and use of wetlands within the city limits. The city adopted the ordinance upon a finding that wetlands were "indispensable and fragile natural resources" and that "damaging or destroying wetlands threatens public safety and the general welfare." According to the ordinance, the City of LaPorte determined it was necessary to "ensure maximum protection for wetlands by discouraging development activities" in wetlands, as well as those activities in upland areas that "may adversely affect wetlands." The ordinance requires a permit from the Zoning Administrator and compliance with "other applicable regulations." The Zoning Administrator is also charged with enforcement.⁶²

The Highway Extension Research Project for Indiana Counties and Cities at Purdue University has developed a model stormwater ordinance that can be adopted by local governments. Among several issues addressed in the ordinance is retention or detention structures for new developments. Auburn, Indiana has adopted a wetlands ordinance to help preserve wetlands because of their retentive attributes.⁶³

Nonregulatory Wetlands Programs

A variety of initiatives can be pursued at the federal, state, and local level, as well as in the private sector, that do not involve regulatory actions. A few of the programs are reviewed here; however, for a more comprehensive listing which references more than 50 programs, see A SUMMARY OF WETLANDS CONSERVATION PROGRAMS IN INDIANA: AN ADDENDUM TO THE INDIANA WETLANDS CONSERVATION PLAN (June 1996) published by the Indiana Department of Natural Resources.

The U.S. Fish and Wildlife Service has an active program in Northwest Indiana for the restoration of fish and wildlife habitat through cooperative agreements with private landowners. In what it deems the Fish and Wildlife Service Partners for Wildlife Program, wetlands restorations under this program have been performed as follows: (1) Lake County 400.5 acres (of a total of 472.5 acres for habitat restoration); (2) LaPorte County 30 acres (of a total of 44 acres of habitat restoration); and (3) Porter County 110.5 acres (of a total of 175.7 acres of habitat restoration). To be noted is that these figures include areas within the Kankakee River watershed as well as the Lake Michigan watershed. 64

Michigan City and the LaPorte County Health Department are participating in a program, funding by EPA, to demonstrate the wastewater treatment capabilities of wetlands. In the program, a wetland was designed and constructed to treat 450 gallons of wastewater daily, the approximate flow from a three bedroom house. From a septic tank, the wastewater is pumped into the wetland, which is lined with plastic and filled with two feet of gravel. Cattails, common reed, and bulrush have been planted in the wetland. The wastewater is pumped evenly over the wetland for treatment by the vegetation. A perforated pipe collects the water from the wetland and pumps the water to an infiltration field for discharge into the ground. Other constructed wetlands have also been approved by the LaPorte County Health Department to assist in the treatment of effluent from septic systems, and the process has proven effective if the homeowner follows directions for wetlands construction and maintenance. ⁶⁵

The Food Security Act of 1985 authorizes the Wetlands Reserve Program as administered by the Farm Services Agency. Through this program, eligible landowners can place land under a permanent or long-term easement to help protect wetlands. The landowner receives financial and technical assistance to implement restoration activities on the protected area. The program targets farmed wetlands, prior converted wetlands, wetlands farmed under natural conditions, riparian areas, and eligible buffer areas. The goal of the Wetlands Reserve Program is to enroll 330,000 acres by the end of 1995, and 975,000 acres by 2000.

County Soil and Water Conservation Districts (SWCDs) provide technical assistance to local agencies and individual landowners regarding wetland conservation. An SWCD is a sub-unit of state government responsible for soil and water conservation programs within its designated boundaries. Ordinarily, the boundaries are the same as the county boundaries. Five supervisors (three elected and two appointed) manage an SWCD. The supervisors evaluate local needs, set priorities, and develop program to meet soil and water conservation needs within the county. SWCDs are funded through state and county appropriation, SWCD money making activities, and private donations. ⁶⁶

Drainage Task Force Recommendations

Included earlier in this chapter is a discussion of the difficulties posed by seeking a balance between the needs for drainage and the desire to maintain biological diversity. A Drainage Task Force was established⁶⁷ to examine state and local laws regarding drainage and make recommendations to the legislators. The Task Force was comprised of representatives of county surveyors, state and federal regulatory agencies, agricultural interest group s, and environmental interest groups. This group met from June 1994 through September 1994, issuing a final report in October 1994. The report provided eight recommendations to the legislators. ⁶⁸

During the 1995 legislative session, two measures were introduced which pertained to county drainage officials and state regulatory agencies. One measure, SB 368, resulted in the establishment of an early coordination process among county drainage officials, the Indiana Department of Environmental Management, and the Indiana Department of Natural Resources. This process is discussed in an earlier section of this chapter directed to "Drainage." The other measure, SB 303, created a work group to prepare a handbook for recommended drainage practices.⁶⁹

The Indiana Department of Natural Resources selected an engineering firm to develop the drainage handbook with the assistance of the group. The handbook, titled INDIANA DRAINAGE HANDBOOK: AN ADMINISTRATIVE AND TECHNICAL GUIDE FOR ACTIVITIES WITHIN INDIANA'S DRAINAGEWAYS, was completed in 1996.