Sec. 6. (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.

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.