Senate Environmental Committee Passes Bill Eliminating State Wetland Protections

Senate Bill 389 seeks to repeal a state law protecting Indiana wetlands since 2003.
January 26, 2021

A bill that would repeal state protections for Indiana’s diminishing wetlands passed the Senate’s Environmental Affairs Committee and is headed for consideration by the full Indiana Senate, despite opposition from the agencies in charge of protecting the state’s environment and natural resources.

Senate Bill 389, opposed by the Indiana Department of Environmental Management and Department of Natural Resources, seeks to repeal nearly two-decade-old state protections for Indiana wetlands that the bill’s proponents said are barriers to solving the state’s housing crisis.

Indiana only has about 15% of the total wetlands that it had before the state’s founding, meaning it has lost 4.7 million acres of wetlands to development since 1780.

Wetlands trap and slowly release water, filtering it through sediment and vegetation before it reaches surface and groundwater systems. Wetlands can reduce or prevent flooding and are home to many species of wildlife.

A Trump administration rule finalized in April 2020 redefined which waters fall under federal protection, leaving some bodies of water, like ephemeral streams and other isolated wetlands, under state jurisdiction.

In the months after the ruling, IDEM Commissioner Bruno Pigott said his agency would not regulate water bodies that were not considered “waters of the United States” during its permitting process.

Despite the change, farmers and developers testified to the committee that the wetland protections were putting the state’s builders and prospective homeowners at a disadvantage.

“[The WOTUS definition] change now puts Indiana at a competitive disadvantage from many other states across the country as it relates to the cost of development and what property owners can and cannot do with their property. Senate Bill 389 would align Indiana’s law with current federal law and no longer regulate certain defined isolated wetlands and ephemeral streams, thus potentially reducing the overall cost of development due to costly mitigation of these isolated wetlands,” said Rick Wajda, CEO of the Indiana Builders Association.

The bill was authored by three senators with ties to the land development and housing industry, Sen. Chris Garten, owner of Signature Countertops Inc. in Jeffersonville; Sen. Mark Messmer, chair of the Senate Environmental Affairs Committee and co-owner of Messmer Mechanical Inc., a plumbing, heating and cooling company; and Sen. Linda Rogers, owner of Nugent Builders in Granger.

Garten said that the rule would help alleviate the state’s housing crisis.

“I have sincere concerns that we are driving up the cost of building and development exponentially to a level that is preventing Hoosiers from owning a home. I think most can agree that home ownership is critical for improving societal norms and addressing basic needs. I’m unclear how one can reconcile advocating for affordable housing and in the same breath advocate for exponentially increasing the cost of an affordable home,” he said during the committee meeting.

The bill is opposed by many environmental and conservation groups in Indiana, like the Hoosier Environmental Council, the Central Indiana Land Trust and the Nature Conservancy in Indiana, who said the bill would lead to the destruction of more wetlands and wildlife and an increased flood risk for Hoosier communities.

The bill is also opposed by the Indiana Department of Environmental Management and the Indiana Department of Natural Resources, who said the bill would undermine years of work in flood prevention and water quality efforts, as well as increase flood risks and costs to the state, local governments and individual Hoosiers.

“IDEM is opposed to this bill taking away the state’s ability to protect our wetlands,” IDEM business and legislative liaison Erin Moorhous told the committee. “The cost of mitigation can be expensive, yet the cost associated with eliminating wetlands throughout the state is even higher and has long-term effects.”

Climate change has caused an increase in the amount of annual precipitation every year. According to the Purdue Climate Change Research Center, average annual precipitation has increased 5.6 inches since 1895. Rain is also falling in heavy downpours, leading to an increased risk of flooding as climate change worsens.

Moorhous said the costs of eliminating wetland protections will eventually trickle down to individual Hoosiers.

“Rainfall has continued to increase over the years, so any reduction in water storage can have a negative impact,” she said. “These flooding costs are borne by the citizens who must clean up flooded basements, cities that must reconstruct infrastructure and the state, which has provided assistance to these rebuilding efforts.”

The state has already experimented with eliminating wetlands during the late 1800s and early 1900s.

Wetlands along the Kankakee River between Lake and Starke Counties, unofficially called the Grand Kankakee Marsh, were drained over decades after the Civil War. By 1922, most of the wetlands were converted into agricultural fields, and only 1% of the marsh remained.

The destruction of the wetlands led to increased flooding along the Kankakee River Basin and a decrease in water quality.

In the 1977, a Kankakee River Basin Commission was created to restore 25,000 acres of wetlands. According to IDEM, the water quality has improved and flooding has decreased since that happened.

The bill still has long journey before it becomes Indiana law. It must first be considered by the Indiana Senate, where it will most likely be altered. If it is approved by the Senate, the bill then heads to the Indiana House of Representatives, where it will face more scrutiny.

Senate Environmental Committee Passes Bill Eliminating State Wetland Protections