Indiana Stream and Wetland

Mitigation Program (IN SWMP)

Indiana’s In-Lieu Fee Mitigation Program

June 2017

Kankakee

Middle Wabash

Upper White

Whitewater-East Fork White

Lower White

Upper Ohio

Ohio-Wabash Lowlands

Calumet-Dunes St. Joseph River

Maumee

Upper Wabash

±

Indiana Stream and Wetland Mitigation ProgramService Areas

IN SWMP Service Areas:

Calumet-Dunes

St. Joseph River

Maumee

Upper Wabash

Kankakee

Middle Wabash

Upper White

Whitewater-East Fork White

Lower White

Upper Ohio

Ohio-Wabash Lowlands

Permits the Program will sell credits for:

• Army Corps of Engineers – regulations under:– Section 10 Harbors Act

– Section 404 of Clean Water Act (CWA)

• Indiana Dept of Environmental Management –regulations under: – Section 401 Water Quality Certifications (CWA)

– Indiana Isolated Wetlands Law

• Indiana DNR Division of Water: – For construction in a floodway, public freshwater lake

or navigable waterway

Compensatory Mitigation

• Compensatory mitigation means the restoration, establishment, enhancement, and/or in certain circumstances preservation of aquatic resources for the purposes of offsetting unavoidable adverse impacts which remain after all appropriate and practicable avoidance and minimization has been achieved. – 3 types of mitigation are allowable:

(1) Mitigation Bank credits,

(2) In-Lieu Fee Program credits, and

(3) Permittee-Responsible Mitigation/Restoration project

Compensatory Mitigation and Permitting Process

Proposed Compensatory

Mitigation

1. Mitigation Bank Credits2. In-Lieu Fee Credits3. Permittee Responsible

MitigationRatio

Proposed Impact

Avoid

Minimize

Permitted Impact

Perm

it D

ecis

ion

Co

mp

en

sato

ry M

itig

atio

n P

lan

What is “in-lieu fee” mitigation?

• Permittee provides funds to an in-lieu-fee (ILF) sponsor (must be a public agency or non-profit natural resource organization).

• Typically sponsor collects funds from multiple permittees and pools the financial resources.

• Sponsor builds and maintains a larger mitigation project than permittee-responsible mitigation projects.

• MUST FOLLOW 2008 Federal Mitigation Rule

In-Lieu Fee Mitigation

• In-lieu fee program: restoration, establishment, enhancement, and/or preservation of aquatic resources through funds paid to a governmental or nongovernmental natural resource management organization.

• Permittee purchases credits from ILF sponsor

• Sponsor builds and maintains larger mitigation projects than permittee-responsible mitigation projects after impacts are authorized.– MUST FOLLOW 2008 Federal Mitigation Rule

Indiana Stream & Wetland Mitigation Program • Reduce Public’s Regulatory Burden

• Finding suitable mitigation sites

• 11 Watershed-Based Service Areas

• Consolidate Mitigation • Gain Efficiencies

– Consolidate w/other conservation• Increase Ecological Significance• Prioritization of potential projects per

CPF

Mitigation Project Selection: Compensation Planning Framework

Mitigation Project Selection: Compensation Planning Framework

• CPF includes a “Statewide Prioritization Strategy” for project selection1) Must Replace Lost Functions & Services

2) Re-establishment / Rehabilitation / Establishment / Enhancement / Preservation.

3) Within or Adjacent to Other Priority Conservation Areas

4) Address identified threats within the watershed/SA

• Each Service Area has more specific priorities

• All projects will require real estate restrictions

IN SWMP Mitigation Projects

Sponsor/DNR will identify several potential mitigation projects for advance credits sold

*Corps Letter of Permission Process* 1. Develop/submit a Conceptual Project Plan & JD

– Corps & IRT review & approval

2. Develop/submit a Mitigation Project Plan & Design– Corps & IRT review, approval; Permits acquired

3. Construction of project4. Monitoring & Maintenance 2008 Mitigation Rule

Each Mitigation Plan is an amendment to the Instrument

Accountability

• ILF Projects must have

same accountability as a mitigation bank

• All proposed projects are public noticed by the Corps (Lead District for given project)

• Submit annual program reports and project specific performance monitoring reports

Program Management

• Indiana DNR is the Program Sponsor

• Sponsorship entails:

– Identification of projects

–Project planning & approval

–Contracts for construction

–Credit sales and tracking of credits

–Regular reporting to the Corps• Formal annual reports & informal monthly updates

Program Management

• Indiana NRF to serve as the Fiscal Agent –Deposits / Expenditures

– Tracking all funds

– Federal rule requires funds be used only for the ILF program projects (up to 15% for administrative costs are allowable)

–May require hiring an accountant

• Fits into the Foundation’s mission

Credit Sales

Developer Wants To Use Credits

See if Credits are Available in USACE

RIBITS

Contact DNR IN SWMP to confirm credit availability

Permit Application

Mitigation Plan

ILF Credits

AvoidMinimize

Mitigation Reqmt

Contingent Permit Approval

Developer Purchases Credits

DNR Issues Credit Sale Letter

Final Permit Developer Submits Credit Sale Letter

Mitigation Fulfilled

Program Management

Indiana DNR

Program Administration, Tracking & Reporting

Credit

Sales

IN NRF

Fiscal Agent

Mitigation

Projects

Planning/ Approval

RestorationMonitoring/

Reporting

Indiana DNR / Consultants

Admin

Fee

Project

Funds

Credit Sales

• In-lieu fee programs sell “Advance Credits”– Each service area will have a specific allotment of

advance wetland and stream credits available

• ILF projects will generate Released Credits to fulfill Advance Credits that have been sold

• 2008 Mitigation Rule allows 3 growing seasons after credit sale for construction to begin

Requested Advance Credit Allocation

• Subject to approval by the Corps & IRT…

• Wetland Credits:

– 75 wetland credits in most of the service areas

– 85 and 100 credits in 2 of the 11 service areas

• Calumet-Dunes and Upper White respectively

• Stream Credits:

– 37,500 in most service areas

– Upper White service area; DNR requesting 50,000

Credit Price Components

Project Component Wetland Stream

Land Acquisition/Protection 20-50% 20-35%

Engineering Design/Project Management 1-5% 1-5%

Financial Assurances 1-5% 1-5%

Construction 10-20% 25-40%

Monitoring / Adaptive Mgm’t 3-15% 2-10%

Long Term Management 15% 15%

Contingencies 5-10% 5-10%

IN SWMP Administration Fee 15% 15%

DRAFT Credit Pricing• Pricing is dependent upon anticipated

mitigation required within that service area based upon 2009-2015 USACE mitigation data.

Service Area Stream Credit Price Wetland Credit Price

Calumet-Dunes $500 $65,000

St. Joseph River (Lake MI) $600 $105,000

Maumee $400 $65,000

Kankakee $450 $80,000

Upper Wabash $400 $65,000

Middle Wabash $400 $80,000

Upper White $450 $65,000

Whitewater-East Fork White $350 $65,000

Lower White $400 $65,000

Upper Ohio $350 $65,000

Ohio-Wabash Lowlands $350 $65,000

IN SWMP & Partnerships

• IN SWMP will be looking to partner with other conservation programs/funding sources

• IN SWMP Program/Project Restrictions– Not likely on lands acquired with federal $$$

– All projects will require real estate restrictions

– Legal Drains will be tricky…

• Ownership of IN SWMP projects

– DNR, land trusts, local govt parks dept.

– Long-term maintenance funding post-release

Considerations: • ALL mitigation projects will require Corps and IRT

review and approval

• ILF portion of a larger conservation project will have to be clearly defined and delineated from portions funded with other funding sources

• Restrictions on use during establishment and monitoring period

• “Preservation alone will likely be infrequent”

– Priority in Calumet-Dunes SA

– Must meet conditions as required in 2008 rule

Contractors & ILF

• DNR will conduct site selection

• IDOA Division of Public Works – Pre-certification required through IDOA PW

– Category: Wetland, Stream and Upland Restoration and Mitigation

• DNR will likely have on-call contractors– Wetland delineations?

– Land appraisals & surveys?

– Maintenance?

– Other to be determined…

IDNR DIVISION OF WATER PERMITS

•Construction in a Floodway – Flood Control Act (IC 14-28-1)

•Construction on a Public Freshwater Lake – Lake Preservation Act

(IC 14-26-2)

•Construction in a Navigable Waterway – Navigable Waterways Act

(IC 14-29-4)

DNR ILF Rules• The Natural Resources Commission formally

adopted 312 IAC 9.5 on July 15, 2014.

• Rule establishes an option for an in-lieu fee to mitigate for adverse impacts to fish, wildlife and botanical resources for construction in a floodway, public freshwater lake or navigable waterway

– DNR permit staff will determine appropriateness of proposed mitigation

• Gives applicants a third option for mitigation

DNR ILF Program Policy

• Non-rule policy is under development by DNR– Site specificity consideration

• Being developed in parallel with the in-lieu fee program for Section 404 and 401 permits– Funds will be kept separate

• Will include credit pricing and fee structure– Will account for full costs of mitigation project

Any Questions?

Carl Wodrich Director of Ecological Services

Indiana Department of Natural ResourcesDivision of Land Acquisition

317-232-1291cwodrich@dnr.IN.gov

IN SWMP Mitigation Specialists: Brad Baldwin (North) – 317-234-9702 bbaldwin@dnr.IN.gov

David Carr (South) – 317-234-9703 dcarr@dnr.IN.gov

http://www.in.gov/dnr/heritage/8340.htm