(a)As used in subsection (b)(1) with respect
to a stream, "total length" means the length of the stream, expressed in
miles, from the confluence of the stream with the receiving stream to
the upstream or headward extremity of the stream, as indicated by the
solid or dashed, blue or purple line depicting the stream on the most
current edition of the seven and one-half (7 1/2) minute topographic
quadrangle map published by the United States Geological Survey,
measured along the meanders of the stream as depicted on the map.
(b)A person is not required to obtain a permit from the department
for the following activities:
(1)A reconstruction or maintenance project (as defined in IC 36-9-27) on a stream or an open regulated drain if the total length
of the stream or open drain is not more tha
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(a) As used in subsection (b)(1) with respect
to a stream, "total length" means the length of the stream, expressed in
miles, from the confluence of the stream with the receiving stream to
the upstream or headward extremity of the stream, as indicated by the
solid or dashed, blue or purple line depicting the stream on the most
current edition of the seven and one-half (7 1/2) minute topographic
quadrangle map published by the United States Geological Survey,
measured along the meanders of the stream as depicted on the map.
(b) A person is not required to obtain a permit from the department
for the following activities:
(1) A reconstruction or maintenance project (as defined in IC 36-9-27) on a stream or an open regulated drain if the total length
of the stream or open drain is not more than ten (10) miles.
(2) A construction or reconstruction project on a state or county
highway bridge in a rural area that crosses a stream having an
upstream drainage area of not more than fifty (50) square miles
and the relocation of utility lines associated with the construction
or reconstruction project if confined to an area not more than one
hundred (100) feet from the limits of the highway construction
right-of-way.
(3) The performance of an activity described in subsection (c)(1)
or (c)(2) by a surface coal mining operation that is operated under
a permit issued under IC 14-34.
(4) Any other activity that is determined by the commission,
according to rules adopted under IC 4-22-2, to pose not more than
a minimal threat to floodway areas.
(5) An activity in a boundary river floodway to which section 26.5
of this chapter applies.
(6) The activities of a forestry operation that are:
(A) conducted in compliance with the Indiana Logging and
Forestry Best Management Practices Field Guide published by
the department of natural resources; and
(B) confined to a waterway that has a watershed not greater
than ten (10) square miles.
(7) The removal of a logjam or mass of wood debris that has
accumulated in a river or stream, subject to the following
conditions:
(A) Work must not be within a salmonid stream designated
under 327 IAC 2-1.5-5 without the prior written approval of the
department's division of fish and wildlife.
(B) Work must not be within a natural, scenic, or recreational
river or stream designated under 312 IAC 7-2.
(C) Except as otherwise provided in Indiana law, the following
apply to logs that are crossways in the channel:
(i) Free logs must be relocated and removed from the flood
plain. A free log includes a log that is still attached to a root
system that is no longer in the ground.
(ii) Affixed logs must be cut, relocated, and removed from
the flood plain. An affixed log includes a log that is still
attached to a root system that is still in the ground. If the root
system is still in the ground, the log must be cut so as to allow
the root system to remain in the ground. However, cutting and
removing the affixed log is not required if, in the opinion of
the individual removing the log, the cutting and removing
would create an unreasonable risk of bodily harm to the
individual.
Logs may be maintained in the flood plain if properly anchored
or otherwise secured so as to resist flotation or dislodging by
the flow of water and placement in an area that is not a wetland.
Logs must be removed and secured with a minimum of damage
to vegetation.
(D) Isolated or single logs that are embedded, lodged, or rooted
in the channel, and that do not span the channel or cause flow
problems, must not be removed unless the logs are either of the
following:
(i) Associated with or in close proximity to larger
obstructions.
(ii) Posing a hazard to agriculture, business, navigation, or
property.
(E) A leaning or severely damaged tree that is in immediate
danger of falling into the waterway may be cut and removed.
The root system and stump of the tree must be left in place.
(F) To the extent practicable, the construction of access roads
must be minimized, and should not result in the elevation of the
flood plain.
(G) To the extent practicable, work should be performed
exclusively from one (1) side of a waterway. Crossing the bed
of a waterway is prohibited.
(H) To prevent the flow of sediment laden water back into the
waterway, appropriate sediment control measures must be
installed.
(I) Within fifteen (15) days, all bare and disturbed areas must
be revegetated with a mixture of grasses and legumes. Tall
fescue must not be used under this subdivision, except that low
endophyte tall fescue may be used in the bottom of the
waterway and on side slopes.
(J) A logjam or mass of wood debris that is removed from a
river or stream may be burned so completely as to eliminate the
risk that the resulting ash and remnants will not cause another
logjam, unless a local ordinance specifies otherwise.
(K) A person removing a logjam or a mass of wood debris from
a river or stream under this subdivision without obtaining a
permit:
(i) may use the means that the person believes to present the
lowest risk of physical injury to individuals performing the
removal work; and
(ii) may, subject to clause (G), use mechanical equipment
appropriate to the task of removing the logjam or mass of
wood debris.
(L) A person removing a logjam or a mass of wood debris from
a river or stream under this subdivision must comply with the
following:
(i) Section 404 of the federal Clean Water Act (33 U.S.C.
1344).
(ii) IC 13-18-22 (state regulated wetlands).
(c) Except for an activity under subsection (b), a person who desires
to:
(1) erect, make, use, or maintain a structure, an obstruction, a
deposit, or an excavation; or
(2) suffer or permit a structure, an obstruction, a deposit, or an
excavation to be erected, made, used, or maintained;
in or on a floodway must file with the director a verified written
application for a permit. The permit application must be accompanied
by a nonrefundable minimum fee of two hundred dollars ($200).
(d) A permit application filed under this section:
(1) must set forth the material facts concerning the structure,
obstruction, deposit, or excavation; and
(2) must be accompanied by plans and specifications for the
structure, obstruction, deposit, or excavation.
(e) This subsection does not apply to the state or a county, city, or
town. A person who files a permit application under this section must
provide:
(1) documentation of the person's ownership of the site where the
proposed work will be performed; or
(2) an affidavit from the owner of the site where the proposed
work will be performed expressly authorizing the performance of
the proposed work on that site.
(f) A person who applies for a permit under this section may file an
amendment to the person's permit application. The director may
approve a permit application amendment filed under this subsection
only if the permit, as amended by the amendment, would meet the
requirements of this section.
(g) Two (2) or more persons may jointly apply for a permit under
this section.
(h) A person described in subsection (c) must receive a permit from
the director for the work before beginning construction. The director
shall issue a permit only if, in the opinion of the director, the applicant
has clearly proven that the structure, obstruction, deposit, or excavation
will not do any of the following:
(1) Adversely affect the efficiency of or unduly restrict the
capacity of the floodway.
(2) Constitute an unreasonable hazard to the safety of life or
property.
(3) Result in unreasonably detrimental effects upon fish, wildlife,
or botanical resources.
(i) In deciding whether to issue a permit under this section, the
director shall consider the cumulative effects of the structure,
obstruction, deposit, or excavation. The director may incorporate in and
make a part of an order of authorization conditions and restrictions that
the director considers necessary for the purposes of this chapter.
(j) The following apply to a permit issued under this section:
(1) Except as provided in subdivisions (2) and (3), a permit is
valid for two (2) years after the date of issuance of the permit.
(2) A permit issued to:
(A) the Indiana department of transportation or a county
highway department in connection with a construction project,
if there is any federal funding for the project; or
(B) an electric utility for the construction of a power generating
facility;
is valid for five (5) years from the date of issuance of the permit.
(3) A permit issued to a quarrying or aggregate company for the
excavation of industrial materials, including:
(A) clay and shale;
(B) crushed limestone and dolostone;
(C) dimension limestone;
(D) dimension sandstone;
(E) gypsum;
(F) peat;
(G) construction sand and gravel; and
(H) industrial sand;
is valid for the duration of the permitted project, subject to
periodic compliance evaluations.
However, a permit issued under this section expires if construction is
not commenced within two (2) years after the permit is issued.
(k) The holder of a permit issued under subsection (j)(3) shall notify
the commission of the completion of the permitted project within six
(6) months after completing the permitted project.
(l) The following apply to the renewal of a permit issued under this
section:
(1) A permit to which subsection (j)(1) applies may be renewed
one (1) time for a period not to exceed two (2) additional years.
(2) A permit to which subsection (j)(2) applies may be renewed
one (1) time for a period not to exceed five (5) additional years.
(m) The director shall send a copy of each permit issued under this
section to each river basin commission organized under:
(1) IC 14-29-7 or IC 13-2-27 (before its repeal); or
(2) IC 14-13-9, IC 14-30-1 (before its repeal), or IC 36-7-6
(before its repeal);
that is affected.
(n) The permit holder shall post and maintain a permit issued under
this section at the authorized site.
(o) For the purposes of this chapter, the lowest floor of a building,
including a residence or abode, that is to be constructed or
reconstructed in the one hundred (100) year flood plain of an area
protected by a levee that is:
(1) inspected; and
(2) found to be in good or excellent condition;
by the United States Army Corps of Engineers shall not be lower than
the one hundred (100) year frequency flood elevation plus one (1) foot.
[Pre-1995 Recodification Citation: 13-2-22-13(d), (e), (f),
(h).]