§ 13-18-22-6 — Compensatory mitigation

(a) Except as otherwise specified in
subsections (b), (c), (e), (f), and (h), compensatory mitigation shall be
provided in accordance with the following table:
(b) The compensatory mitigation ratio shall be lowered to one to one
(1:1) if the compensatory mitigation is completed before the initiation
of the wetland activity.
(c) A wetland that is created or restored as a water of the United
States may be used, as an alternative to the creation or restoration of an
isolated wetland, as compensatory mitigation for purposes of this
section. The replacement class of a wetland that is a water of the
United States shall be determined by applying the characteristics of a
Class I, Class II, or Class III wetland, as appropriate, to the replacement
wetland as if it were an isolated wetland.
(d) The off-site location of compensatory mitigation must be:
(1) within:
(A) the same eight (8) digit U.S. Geological Service hydrologic
unit code; or
(B) the same county;
as the isolated wetlands subject to the authorized wetland activity;
or
(2) within a designated service area established in an in lieu fee
mitigation program approved by the department.
(e) For purposes of satisfying subsection (a), compensatory
mitigation may consist of:
(1) one (1) or a combination of the following:
(A) Creation or restoration of a wetland by the permittee.
(B) Bank credits.
(C) In lieu fee credits; or
(2) a combination of creation or restoration and preservation
methods such that:
(A) creation or restoration of a wetland by the permittee
accounts for at least a one to one (1:1) ratio of mitigation; and
(B) preservation of a wetland by the permittee, under
subsection (h), accounts for any remaining mitigation required
under subsection (a).
(f) An exempt isolated wetland:
(1) may be considered a created or restored wetland for purposes
of subsection (e)(1)(A) and (e)(2)(A); and
(2) if so considered, shall receive compensatory mitigation credit
as follows:
(A) A Class I wetland may be enhanced to a Class II wetland by
the permittee and used for mitigation credit for impacts to Class
II wetland at the following ratios:
(i) One to one (1:1) if the enhancement occurs prior to
impacts.
(ii) Two to one (2:1) if the enhancement occurs after
permitting.
(B) If the mitigation wetland is the same or a higher
classification than the impacted wetland, the mitigation wetland
credit ratio is one to one (1:1).
(C) Except as provided in clause (A), if the mitigation wetland
is a lower classification than the impacted wetland, then
mitigation credit shall be given in accordance with the
following ratios:
(g) An exempt isolated wetland that is used to provide
compensatory mitigation under subsection (f) becomes state regulated
wetland.
(h) A nonexempt, Class II or Class III isolated wetland that is not
impacted and that is protected with a deed restriction or conservation
easement:
(1) may be preserved for purposes of subsection (e)(2)(B) so long
as the nonexempt, Class II or Class III isolated wetland is the
same or a higher classification as the impacted wetland; and
(2) if the condition in subdivision (1) is met, shall receive
compensatory mitigation credit as follows:
(i) Unless otherwise specified, compensatory mitigation provided
under this section must be protected with a restrictive covenant that is
recorded with respect to the property on which the mitigation wetland
is located.

Legislative History

As added by P.L.282-2003, SEC.38. Amended by P.L.241-2005, SEC.4; P.L.147-2015, SEC.12; P.L.160-2021, SEC.10; P.L.1-2024, SEC.9.