Why have a local wetlands ordinance? Simple. It gives your community control over a valuable local resource above and beyond the very limited protection given by the permit program run by the US Army Corps of Engineers under Sec. 404 of the Federal Clean Water Act. If local control means anything, it means having the power to go beyond the federal minimum. But a local ordinance has to respect constitutional restrictions against uncompensated "takings" of private property; and it has to fit within a state's statutory framework for planning and zoning.
While it draws on ordinances from other states, the model is written specifically with Indiana in mind. It is a classic zoning ordinance. It presumes that certain values are to be protected by clear standards and that exceptions may be made only through the due process mechanism of appeal to a board of zoning appeals. In this respect it is a "lawyer's ordinance." It does not use the "balancing tests" so beloved by some professional planners. The objective is to protect wetlands, not to provide a legal excuse for destroying them.
The model was first written in 1990 by Michael Walter, a licensed Indiana attorney (#1543-17) who helped draft an earlier version adopted in 1989 by the City of Auburn. (A similar ordinance was later adopted by the City of LaPorte.) The model is subject to periodic revision. Presenting the model to the public DOES NOT constitute legal advice. Each community should adjust the content and format to its own special situation.
In drafting the model, the author's objective has been to give local planning bodies the option of red-penciling what they wish to omit rather than to burden them with deciding what they might need to add. Please keep in mind that other parts of local land use ordinances may require amendment in order to avoid conflict with a wetlands ordinance. Finally, remember that courts and the Indiana General Assembly can quickly shift the legal ground on which things stand; so don't imagine that you can adopt the model by bolting it on to your existing planning and zoning ordinance like a boiler plate. The model is a basis for discussion and debate, and it should not be adopted without careful review by a lawyer.
A Note About Format:
The model's format is based on a typical codification system used by Indiana cities and towns. Here's a sample breakdown:
Communities using a different system should adjust the code references accordingly. Note also that the model is arranged so that the Comprehensive Plan and the Zoning Code are amended by a single ordinance. Some communities might prefer to do this with separate ordinances. But remember that your Comprehensive Plan is the basis of your Zoning Code. If your Comprehensive Plan doesn't say anything about wetlands and wetlands policy, it definitely should be amended to lay a proper legal foundation for wetlands zoning.
A MODEL WETLANDS ORDINANCE FOR INDIANA COMMUNITIES
BE IT ORDAINED that the Comprehensive Plan of the City/Town/County of __________ be amended to add the following findings of fact and policy statement:
The wetlands of the City/Town/County of __________ are a valuable natural resource requiring careful management to maintain their usefulness to public health, safety and welfare.
In their natural state, wetlands serve to control flooding and water pollution, buffer shorelines and stream banks against erosion and maintain supplies of potable ground water.
Wetlands also provide high-quality wildlife habitat and offer opportunities for recreation, scientific study and natural resource education.
Wetlands are subject to significant development constraints because of poorly-drained subsoils and the need for constructed drainage and storm water management systems to compensate for loss of natural wetlands functions.
In a well-planned community, wetlands offer the benefits of open space and natural separation of land uses.
It is the policy of the City/Town/County of __________ to avoid or minimize damage to wetlands, to permit reasonable economic use of wetlands in ways that are compatible with sound wetlands conservation practices; to encourage development not dependent on a water-related location to be sited in upland areas; to allow wetlands losses only when unavoidable; to promote development at adjacent upland sites that will have minimal or no adverse impact on wetlands; and to coordinate the planning and zoning process with federal and state programs designed to preserve, protect or enhance wetlands values.
BE IT FURTHER ORDAINED that the Zoning Ordinance of the City/Town/County of __________ be amended to add the following subchapter:
000.000 WETLANDS CONSERVATION
000.010 GENERAL PROVISIONS
The purpose of this subchapter is to prevent harm to the human and natural environment from water pollution, increased flooding and loss of ground water supply that may result when natural wetlands are drained, filled or otherwise subjected to uses incompatible with public health, safety and welfare. This purpose is consistent with the Comprehensive Plan of the City/Town/County of __________. This subchapter is intended to achieve this purpose by:
(1) Providing a method of identifying wetlands within the planning and zoning jurisdiction of the City/Town/County of __________;
(2) Establishing regulations that permit reasonable economic use of wetlands consistent with sound wetlands conservation practices;
(3) Guiding development adjacent to wetlands to prevent harm to wetlands and protect property from potential flood damage; and
(4) Establishing procedures to assure compliance with the Federal Clean Water Act (33 U.S.C. Sec. 1251 et seq.) and with state regulations that may affect wetlands.
This subchapter is adopted under the authority of Indiana Code 36-1-3-1 et seq. (Home Rule), Indiana Code 36-7-4-600 et seq. (Local Planning and Zoning - 600 Series - Zoning Ordinance) and Indiana Code 36-9-2-10 through 36-9-2-12 (General Powers Concerning Transportation and Public Works) which relate to the powers of a local unit of government to regulate watercourses as defined in Indiana Code 36-9-1-10.
Words used in this subchapter are intended to have their common-sense meanings unless defined otherwise. The definitions and rules of construction that apply to the rest of the Zoning Ordinance are intended to apply to this subchapter unless a different definition or rule is provided for.
(1) Adverse Impact
(3) Fill Material
(4) Hydrophytic Vegetation
P.B. Reed, Jr., "National List of Plant Species that Occur in Wetlands" (North Central - Region 3), Biological Report 88(24), (Washington, DC: U.S. Fish & Wildlife Service, 1988).
(5) National Wetlands Inventory (NWI)
(6) Natural Water Storage Capacity
(7) Ordinary High Water Mark
(8) Overlay District
(9) Periodic Maintenance
(10) Practicable Alternative
(D) WETLANDS OVERLAY DISTRICTS
(1) The Wetlands (W) Districts established by this subchapter are overlay districts.
(2) No development may take place in a Wetlands (W) District without an improvement location permit.
(3) Only uses that are permitted by right or by special use permit [special exception] may be placed in a Wetlands (W) District. All other uses are prohibited.
(4) Property located in a Wetlands (W) District is exempt from the provisions of any local ordinance requiring the control or cutting of weeds or the control or cutting of other vegetation over a certain height.
(1) This subchapter does not apply to:
(a) artificially-constructed ponds, drainage ditches, storm water collection basins, gravel pits, stone quarries or waste treatment lagoons, except to the extent that such uses are restricted or prohibited in a Wetlands (W) District;
(b) wetlands or portions thereof for which federal permits for fill were issued prior to the adoption of this subchapter or prior to the extension of the planning and zoning jurisdiction of the City/Town/County of __________over the areas for which the permits were issued; or to
(c) any area or use excluded from local planning and zoning jurisdiction by federal or state law.
(2) Subparagraph (1)(b) of this section notwithstanding, if a wetland has been divided by the discharge or placement of fill material, the separated parts shall be considered a single wetland.
(3) Wetlands of different National Wetlands Inventory (NWI) classifications that are hydrologically linked shall be considered a single wetland.
(4) In the event of a conflict between the provisions of this subchapter and those of any other part of the Zoning Ordinance that governs the management of flood hazard areas, the more restrictive provision shall take precedence.
(F) COORDINATION WITH FEDERAL AND STATE AGENCIES
No application made under this subchapter for an improvement location permit, special use permit [special exception] or variance shall be accepted unless the applicant first obtains all necessary federal and state permits, approvals, waivers or letters of non-applicability. This includes Water Quality Certification from the Indiana Department of Environmental Management (IDEM) under Section 401 of the Federal Clean Water Act.
000.020 WETLANDS (W) DISTRICT
(1) A Wetlands (W) District is any wetland area other than those exempted in subsection 010(E)(1) at least one (1) acre in size that appears on the most current National Wetlands Inventory (NWI) map or maps published by the U.S. Fish and Wildlife Service for areas subject to the planning and zoning jurisdiction of the City/Town/County of __________. The most current edition of the applicable NWI map or maps and any subsequent revisions thereto are hereby adopted by reference and declared to be part of this subchapter. A Wetlands (W) District must also meet the standards of the 1987 U.S. Army Corps of Engineers Wetlands Delineation Manual (Technical Report Y-87-1, January 1987) applied according to the procedures set forth below.
(2) The National Wetlands Inventory (NWI) shows only the general location of wetlands. Precise delineation shall be made by the applicant for an improvement location permit or approval of a development plan through the performance of a full field survey applying the standards of the 1987 U.S. Army Corps of Engineers Wetlands Delineation Manual. All permit applications for development in a Wetlands (W) District or on a tract containing or abutting a Wetlands (W) District shall be accompanied by a scaled drawing showing the wetland boundary. The applicant shall submit evidence documenting the results of the delineation survey to the Zoning Administrator. The Zoning Administrator shall verify the accuracy of the delineation and may make adjustments to it.
(3) The Zoning Administrator may waive the delineation requirement if he/she determines that a development will have no adverse impact on a Wetlands (W) District.
(4) In determining the accuracy of the boundary delineation or whether a development will have an adverse impact on a Wetlands (W) District, the Zoning Administrator may seek the advice and assistance of appropriate federal and state agencies and qualified private experts.
(5) Because the Zoning Administrator may incur extraordinary costs in verifying the accuracy of an applicant's boundary delineation, the Plan Commission may set reasonable fees for verification over and above the basic fee for an improvement location permit or application for approval of a development plan.
(6) When requested by the applicant, the Zoning Administrator shall perform the delineation, employing such experts as needed. The applicant shall be charged for the costs incurred.
(7) Anyone aggrieved by the Zoning Administrator's determination of the Wetlands (W) District boundary may appeal the determination to the Board of Zoning Appeals.
(8) In applying for an improvement location permit or approval of a development plan, the applicant consents to allow the Zoning Administrator and agents and employees of the Zoning Administrator's office to enter upon the applicant's land for the purpose of performing their duties under this subsection.
(B) PERMITTED USES
The following uses are permitted by right, provided they do not involve erecting a building or structure, opening an excavation, depositing or discharging fill material, dredging, earth moving, extending existing drainage systems or creating new drainage systems:
(1) Agricultural uses, except animal feed lots, but including general farming, grazing, gardening, sustained-yield forestry in accordance with a management plan approved by the State Forester, nurseries and the erection and maintenance of wire agricultural fences;
(2) Hunting, trapping and fishing, where not otherwise prohibited by law;
(3) Parks, when left in a natural state, wildlife and nature preserves, recreational uses, including swimming, boating, natural-surface hiking and bridle paths and educational and scientific uses;
(4) Uses incidental to the enjoyment of residential property; and
(5) Maintenance and repair of existing streets, roads, highways and public utilities, provided that such uses are not enlarged and that such maintenance or repair is done in such a way that avoids or minimizes adverse impacts on wetlands.
(C) SPECIAL USES [Note: Some communities use the term "Special Exceptions."]
The following special uses may be permitted by special use permit [special exception] in accordance with subchapter _______ of the Zoning Ordinance, provided that all required federal and state permits have been obtained prior to filing the application for the special use permit:
(1) Structures accessory to permitted uses, provided that they do not obstruct water circulation, threaten water quality, create erosion hazards or disrupt significant wildlife habitat. Such structures include, but are not limited to:
(a) temporary structures not intended for human habitation or sheltering livestock;
(b) boat anchorages, moorings and piers;
(c) walkways, benches, informational displays, directional signs, foot bridges and observation decks; and
(d) residential wells.
(2) Enhancement of wetlands to improve wildlife habitat in accordance with a plan approved by the Indiana Department of Natural Resources.
(3) Public infrastructure, other than buildings and electrical substations, but including public utilities, streets, roads and bridges, provided that:
(a) there is no practicable alternative route outside the wetland;
(b) the public need cannot be met by existing facilities or the modification thereof;
(c) the proposed facility is designed to allow the unimpeded circulation of water in the wetland, control runoff from paved surfaces in accordance with paragraph 4, below, and otherwise minimize adverse impacts on the wetland;
(d) any filling, excavating or draining must be necessary for the construction and maintenance of the proposed facility and done in a way that minimizes adverse impacts on the wetland;
(e) erosion control measures are taken in accordance with the U.S. Department of Agriculture Natural Resource Conservation Service Field Office Technical Guide; and
(f) underground utilities are installed in watertight conduits.
[NOTE: THE FOLLOWING PARAGRAPH IS BEING REVIEWED FOR POSSIBLE REVISION.]
(4) Storm water collection, provided that there is no practicable alternative site outside the Wetlands (W) District and that a wetland utilization plan is prepared by the applicant and approved by the Board of Zoning Appeals listing steps for monitoring surface and subsurface water quality and a schedule of periodic maintenance of the wetland while in use as a storm water collection facility; and further provided that net flow does not exceed the wetland's natural water storage capacity and that the storm water undergoes pretreatment as described in subparagraph (b) below to prevent silt, debris and chemical pollutants from entering the wetland.
(a) No special use permit [special exception] for storm water collection use of a wetland shall involve decreasing the wetland's natural water storage capacity or placing more than 25 percent of the surface area of a constructed collection basin in the Wetlands (W) District. No constructed collection basin shall occupy more than ten percent of the area of a Wetlands(W) District. The natural outflow from a Wetlands (W) District shall not be changed so as to increase or decrease the the normal pool elevation. Minor alteration of a wetland's contour may be permitted for the installation of facilities accessory to storm water inflow and outflow.
(b) Pre-treatment measures may include sedimentation basins, vegetated swales and buffer strips. Riprap made of natural rock may be used only where vegetation cannot control erosion. Storm drains may not discharge directly into a wetland. Lining of swales with paving materials shall not be permitted.
(c) No storm water collection facility shall be constructed within a forested wetland, but overflow into a forested wetland may be permitted.
(d) No more than one (1) constructed collection basin may be placed within a single Wetlands (W) District.
(e) Any portion of a Wetlands (W) District used for storm water collection shall remain part of the Wetlands (W) District.
(f) No special use permit [special exception] shall be granted for storm water collection use of a wetland subject to divided ownership unless the applicant first obtains and records an easement of use from the owners of all other affected properties.
(g) A contructed outflow to a regulated county drain requires approval of the county drainage board or appropriate joint drainage board and/or the county surveyor.
[THE FOLLOWING PROVISION IS OPTIONAL. IT IS INTENDED FOR COMMUNITIES WITH PLANNING AND ZONING JURISDICTION OVER DEVELOPED LAKEFRONT AREAS.]
(5) Maintenance of existing boat channels, provided that the applicant has received a permit from the Indiana Department of Natural Resources under Indiana Code 13-2-11-1 et seq. (Lakes Preservation) and that dredging will be limited as follows:
(a) dredging shall be located so as to minimize adverse impacts on vegetation;
(b) dredging shall not adversely change water circulation;
(c) the size of the dredged area shall be limited to the minimum required for boat ingress and egress; and
(d) dredged material shall not be disposed of within any lake, wetland or flood hazard area or in any manner that is unlawful or would constitute a public or private nuisance.
000.030 GENERAL DEVELOPMENT STANDARDS
In order to guide development outside a Wetlands (W) District to prevent harm to wetlands inside the district, the following standards are established:
(A) No building, structure, street, road, alley, driveway, parking area or paved surface shall be placed within 25 feet of the boundary of a Wetlands (W) District.
(B) No septic system shall be installed within 150 feet of the boundary of a Wetlands (W) District.
(C) The lowest ground floor elevation of all new buildings and extensions of existing buildings within 50 feet of the boundary of a Wetlands (W) District shall be at least two (2) feet above the ordinary high water mark.
(D) No soil storage pile shall be placed within 25 feet of the boundary of a Wetlands (W) District. Erosion from all soil storage piles placed within 200 feet of the boundary of a Wetlands (W) District shall be prevented by the placement of effective containment barriers around the piles. Soil loss from any construction site within 200 feet of the boundary of a Wetlands (W) District shall be controlled by measures described in the U.S. Department of Agricultural Natural Resource Conservation Service Field Office Technical Guide. Erosion control blankets, if required, shall be made entirely of biodegradable materials in order to avoid hazards to wildlife.
(E) No storm water runoff from a development shall be directed into a Wetlands (W) District except as provided in section 020(C)(4).
000.040 NON-CONFORMING USES
Any building, structure or other use that does not conform to this subchapter is a non-conforming use and is subject to the following restrictions:
(A) A non-conforming use may be altered, enlarged or extended on a one-time-only basis, provided that:
(1) The lowest ground floor elevation of any addition to an existing building or structure is at least two (2) feet above the ordinary high water mark;
(2) The proposed alterations, enlargements or extensions, excluding improvments made solely to comply with the Americans With Disabilities Act and with state or local health, sanitary or safety codes or to assure safe living conditions, do not increase the value of the use by more than 40 percent of its pre-improvement market value, excluding the value of the land; and
(3) No extension of a non-conforming use that does not conform to the setback requirements of section 030(A) shall be constructed in the direction of a Wetlands (W) District.
(B) A non-conforming use that is damaged by accident, flood, fire, explosion, natural disaster or the public enemy may be restored to its original dimensions and condition provided that the damage does not reduce the value of the use, excluding the value of the land, by more than 40 percent of its pre-damage value.
000.050 BOARD OF ZONING APPEALS
A. The Board of Zoning Appeals may grant variances from the provisions of this subchapter, provided the applicant establishes that:
(1) The grant of the proposed variance complies with Indiana Code 36-7-4-918.4 (Variances of use from terms of zoning ordinance) and subsequent amendments thereto; and that
(2) The grant of the proposed variance will not adversely affect the water quality, volume of ground water supply or flood storage capacity of the Wetlands (W) District.
(B) Variances shall give the minimum relief necessary to alleviate the applicant's hardship.
(C) No variance shall permit storm water runoff from a street, parking area or roof of an industrial or commercial building to be directed into a Wetlands (W) District.
(D) Variances and special use permits [special exceptions] may be granted only if the applicant demonstrates that all required federal and state permits have been obtained.
(E) No variance or special use permit [special exception] shall allow construction or dredging to disturb waterfowl breeding areas during breeding season or fish spawning areas during spawning season.
(F) Whenever a variance or special use permit [special exception] is granted for a use that may alter the grade or contour of land in a Wetlands (W) District, the Board of Zoning Appeals shall require that, upon completion of the proposed construction, the applicant will restore the land as closely as possible to its original grade and contour.
(G) No variance or special use permit shall allow a net loss of wetland area. Where all or part of a wetland in a Wetlands (W) District would be destroyed or substantially altered by a proposed development, the Board of Zoning Appeals shall require mitigation by the applicant and his/her successors in interest according to the following standards:
(1) Acre-for-acre replacement of lost wetlands with constructed wetlands providing the same or superior environmental benefits.
(2) Replacement wetlands shall be located adjacent to the Wetlands (W) District in which the losses are sustained and shall become part of the Wetlands (W) District.
(3) Periodic maintenance of replacement wetlands shall be carried out by the applicant or by his/her successors in interest for a minimum of three (3) years to control erosion, remove nuisance vegetation and assure the establishment and survival of predominantly hydrophytic vegetation. Before applicant is released from monitoring:
(a) greater than fifty percent of the vegetation species of the replacement site must be hydrophytic;
(b) the hydrology of the replacement site must meet the wetland hydrology criteria contained in the U.S. Army Corps of Engineers Wetland Delineation Manual, Technical Report Y-87-1 (January 1987);
(c) the combined surface area coverage of reed canary grass (Phalaris arundinacea) and cattail (Typha spp.) must not be more than 15 percent; and
(d) the mitigation site must be free of the following exotic species: purple loosestrife (Lythrum salicaria); common reed (Phragmites australis); and water milfoil (Myriophyllum spicatum).
(4) The Board of Zoning Appeals may require the applicant to post a bond or other performance guarantee sufficient to assure the City/Town/County of __________ the satisfactory completion of replacement wetlands.
(5) If constructing replacement wetlands that will provide the same or superior environmental benefits is not feasible at a site adjacent to the Wetlands (W) District in which the projected losses would be sustained, the Board of Zoning Appeals may permit replacement at a ratio of no less than 2:1 in as close proximity as possible to the Wetlands (W) District.
(6) The Board of Zoning appeals shall require replacement of wetland losses even when the applicant has received federal or state approval for the proposed construction without mitigative conditions.
(7) The authorization of replacement wetlands shall not be used as a means of permitting avoidable losses of natural wetlands.
(A) The Zoning Administrator shall enforce the provisions of this subchapter in the manner and form and with the powers provided by the Zoning Ordinance and by the laws of the State of Indiana.
(B) In addition to the enforcement powers and penalties for violation described in Section_____ of the Zoning Ordinance, the Zoning Administrator, Plan Commission or Board of Zoning Appeals, pursuant to Indiana Code 36-7-4-1000 et seq. (Local Planning and Zoning - 1000 Series - Remedies and Enforcement) may institute civil proceedings in a court of competent jurisdiction to compel restoration of wetlands damaged in violation of this subchapter. Such action may also be instituted by anyone who is especially damaged by the violation of any provision of this subchapter.
If any part of this subchapter is found by the courts to be unconstitutional or invalid, that finding shall not affect the validity of this subchapter as a whole or of any part of the subchapter other than the part specifically declared to be unconstitutional or invalid.
Section 3. BE IT FURTHER ORDAINED that this ordinance shall be in full force and effect from and after the date of its passage and approval by the proper legal authorities of the City/Town/County of __________ and all necessary publication.
TEXT LAST REVISED ON SEPTEMBER 14, 2002.
FREQUENTLY ASKED QUESTIONS:
Q: Does a wetlands protection ordinance really have to be this complicated?
A: That depends on the degree of protection you want. At a minimum, every land use ordinance in Indiana should contain a provision requiring developers to identify wetlands and obtain the necessary permits or waivers from the U.S. Army Corps of Engineers required under Section 404 for wetlands "adjacent" to "waters of the United States" and Water Quality Certification from the Indiana Department of Environmental Management under Section 401 for the same. For delineated "non-adjacent" or "isolated" wetlands, the ordinance should require Section 402 approval from IDEM.
Q: Has anyone adopted a "minimum protection" ordinance like that?
A: Yes. Porter County did it in 1993. The advantage of such an ordinance is that it gives local enforcement authorities the power to treat a violation of federal permit law as a violation of local rules. The disadvantage is that it means that local wetlands protection varies with changes in the federal rules and Corps of Engineers enforcement policies. A 1995 Bloomington ordinance requires identification of wetlands on building sites as one of several possible "environmental constraints" on development.
Q: Does the State of Indiana require permits to drain or fill wetlands?
A: Before the U.S. Supreme Court's decision in Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers, 511 U.S. 159 (January 9, 2001), the answer was no, unless the wetlands were located in a floodway, in which case a floodway construction permit from the Indiana Dep't of Natural Resources was (and still is) required. Following the "SWANCC" decision, the Indiana Department of Environmental Management assumed jurisdiction of isolated wetlands under the Section 402 (NPDES) program.
Q: How does the Indiana Dep't of Environmental Management exercise control over wetlands?
A: Under Section 401 of the Federal Clean Water Act, states have to issue "Water Quality Certification" before the Corps of Engineers can issue a Section 404 permit. IDEM's Office of Water Management has WQC responsibility for Indiana. On Sept. 23, 2003, the Indiana Supreme Court held unanimously in the case of IDEM v. Twin Eagle, LLP that IDEM has jurisdiction over isolated wetlands under Section 402 of the Clean Water Act.
Q: Is a 25-foot "buffer zone" enough to protect a wetland?
A: Probably not, but other models use it and it probably can withstand a legal challenge. The "buffer zone" issue was the most contentious problem we had to deal with in 1989 in Auburn. Your author would have preferred a buffer of around 75-100 feet, a width supported by a University of Georgia study (Wenger & Fowler, 2000) available in pdf format at http://www.cviog.uga.edu/pprs/note1-01.pdf (see also Gloucester, MA, wetlands ordinance, below). Some development interests wanted no buffer at all. 25 feet was a compromise. The important thing to remember from a legal standpoint is to base your numbers on evidence that's rationally related to your objective to "promote public health, safety and welfare," and to put that evidence in the record of your public hearings. Don't overreach, but don't be intimidated, either.
Q: How does allowing a wetland to be farmed square with saving it?
A: In order to avoid an unconstitutional "taking" of private property, any zoning must leave the owner with a reasonable economic use. Farming is such a use. Besides, commericial development, not farming, is the main threat to Indiana's wetlands. A farmed wetland can be restored. A wetland buried under a shopping mall is gone forever.
Q: Why doesn't the model mention public hearings?
A: Indiana planning and zoning law requires the ordinance itself to be the subject of notice and public hearing before the local plan commission. An application to the Board of Zoning Appeals for a special use permit [special exception] or a variance from any provision of local zoning rules also requires notice and a public hearing.
Q: How does the U.S. Supreme Court's decision in Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers, 511 U.S. 159 (January 9, 2001), affect wetlands regulation?
A: It makes state and local protection even more important. The ruling has made the Corps run scared about regulating "isolated" wetlands, which comprise most of Indiana's remaining wetlands. IDEM now uses its Section 401 and 402 powers to protect isolated wetlands, and its right to do so has been upheld by the Indiana Supreme Court. But if the legislature decides to limit IDEM's power, local zoning may be the only way to protect many Indiana wetlands.
Q&A LAST REVISED ON OCTOBER 1, 2003.
Here are some other model ordinances that your community may wish to examine. Where a URL is given without a live link, use your browser's "edit" feature to copy and paste it in the location bar:
1. David G. Burke et al., "Protecting Nontidal Wetlands," published 1988 by the American Planning Assn., 122 S. Michigan Ave., Suite 1600, Chicago, IL 60603-6107. Planning Advisory Service Report #412/413, 76 pages with commentary. $40.00. Order from Planners Book Service, phone: (312) 786-6344; fax: (312)431-9985; URL: http://www.planning.org/bookservice . This model leans toward "performance standards" and "balancing tests" as opposed to hard-and-fast "thou shalt nots," but it quotes generously from ordinances already in force.
2. "Model Stream & Wetland Protection Ordinance for the Creation of a Lowland Conservancy Overlay District: A Guide for Local Officials," published 1988 by the Northeastern Illinois Planning Commission, 222 S. Riverside Plaza, Suite 1800, Chicago, IL 60606, phone: (312)454-0400; fax: (312)454-0411; URL: http://www.nipc.cog.il.us 48 pages with commentary. $2.00 plus handling. This is a combined wetlands/floodplain ordinance that also covers flood-prone "depressional areas." It contains some very tough recommendations for vegetated buffers and filter strips.
3. Jon A. Kusler & Teresa Opheim, "Our National Wetland Heritage: A Protection Guidebook," 2nd ed., published 1996 by the Environmental Law Institute, 1616 P St.,N.W., Suite 200, Washington, DC 20036. phone: (202) 939-3800; fax: (202) 939-3868; URL: http://www.eli.org 152 pages. $29.95. ISBN 0-911937-65-X. Appendices contain examples of existing wetlands protection ordinances and model wetlands ordinances.
4. Jennifer Chichester, "Dutchess County, NY Model Ordinance for Wetland, Waterbody and Watercourse Protection," published Sept. 1997. $25.00. Order from Dutchess County Environmental Management Council, firstname.lastname@example.org URL: http://www.dcemc.org/wetlandordinance.htm
5. Salem, NH, Wetlands Conservation Ordinance, adopted 1987 and subsequently amended.
6. Massachusetts Association of Conservation Commissions Model Wetlands Protection Bylaw/Ordinance. This non-zoning approach adopted by many Massachusetts communities provides for generous buffers. The model was revised in February 2002.
7. Georgia Department of Community Affairs Model Wetlands Protection Ordinance, 1997. Financed with a grant from EPA, this model contains a great deal of technical information. It is similar in many ways to the author's model, but is a little more cautious on the subject of buffer zones. Originally posted at http://www.epa.gov/region4wet/wetpro.html , the model is no longer available there. The copy linked to here was retreived from the Internet Archive.
OTHER MODELS LAST REVISED ON MARCH 26, 2002.
More Information About Wetlands:
Mike Walter's Wetlands Page
Wetlands Regulation Center
National Wetlands Inventory
Richard B. Winston's Wetland Links