House Environmental Committee Hears Testimony on Bill Seeking to Remove State Protections for Wetlands

The House Environmental Affairs Committee heard testimony before voting on the controversial Senate Bill 389 next week.
March 24, 2021

The House Environmental Affairs Committee heard testimony from witnesses on both sides of legislation that could decide the future of the state’s few remaining wetlands.

The controversial Senate Bill 389 seeks to repeal all state protections for wetlands in the state, a move that some said would provide regulatory relief to some business interests while others argued the bill would destroy Indiana’s precious wetlands and shift costs associated with mitigation to taxpayers.

The state Legislature passed the Isolated Wetlands Law in 2003 after a Supreme Court decision declared the U.S. Environmental Protection Agency did not have the authority to regulate every wetland throughout the country.

The law provides protections for some wetlands not covered by federal law, but also provides numerous exemptions for wetlands in use, like voluntarily created wetlands and wetlands that exist as incidental features in agricultural lands, ditches and other areas.

Under the law, activities on wetlands, like development, are allowed, but the area disturbed must be offset by creating more wetlands or paying the Indiana Department of Natural Resources to do that.

Some business interests like the Indiana Farm Bureau, Indiana Builders Association and Indiana Manufacturers Association said the mitigation requirements are overly burdensome and prevent landowners and workers in associated industries from making a living.

“Senate Bill 389 would help builders and developers bring product to the market at a price they can afford. The cost to property owners to mitigate isolate isolated wetlands can now be as much as $120,000 an acre, depending on the watershed, for what many see as wet spots on the piece of ground that do not serve any function of preventing flooding on site, but simply serve as an obstacle to maximizing the site to its utmost potential,” Rick Wajda, CEO of the Indiana Builders Association testified at the committee hearing.

The bill’s three main authors have direct ties to the building industry, especially the Indiana Builders Association.

Sen. Chris Garten is an IBA board member and owner of a countertop fabrication company in Jeffersonville; Sen. Linda Rogers is a former president of the IBA and owner of a home construction company in Granger; and Sen. Mark Messmer is an IBA member and co-owner of a plumbing, heating and cooling company.

Most of the 19 other state senators who co-authored the bill also have direct and indirect ties to the building industry.

Garten said the bill is an effort to question why Indiana is one of only eight states that has its own wetlands law. He said it would bring the state into compliance with a previous state law that prohibits the state from enacting rules that are more restrictive than federal rules.

“This bill is a chance for us to vet a government program that defines a wetland so broad and so ambiguous that literally the vast majority of ground in the state of Indiana can be defined as a wetland,” Garten testified as he introduced the bill to the committee. “To be crystal clear, and a little redundant, this bill does not conflict at all, in any way, or interfere with any federal regulation, any federal rule, any federal program, and, again, has zero effect on water quality in the state of Indiana.”

Garten said that actions that impact water quality in the state do not fall under state jurisdiction.

Wetlands trap and slowly release water, filtering it through sediment and vegetation before it reaches surface and groundwater systems.

Indiana Department of Environmental Management chief of staff Brian Rockensuess said the repeal of the state’s wetlands law could make filtering contaminants found in rainwater much more expensive.

“An acre of wetland holds 1 million gallons of water. Wetlands provide habitats, wetlands provide a filter for drinking water. Does it regulate drinking water? No. But when those contaminants are not being filtered through a wetland, those drinking water utilities are now going to have to put together ways to clean the water differently,” Rockensuess testified. “Eliminating this program allows 640,000 acres to be impacted. You multiply that times a million, that’s 640 billion gallons of water that could end up in your fields, your rivers, your streams — things that the state can’t afford.”

Matt Meersman, director of the St. Joseph River Basin Commission, said the repeal of state wetlands would lead to increased flooding, potentially costing cities and farmers millions of dollars more to deal with flooding issues.

“We found a direct connection between wetland loss and flooding issues. We’ve also found a connection between the cost of water management for our local governments and wetland loss,” said Meersman. “There was clear consensus that Senate Bill 389, as written, is terrible for us. It’s terrible for everything we’re trying to do with water management.”

St. Joseph County has experienced historic, widespread flooding within the last five years, once in 2016 and again in 2018.
Climate change has caused a shift in how much precipitation falls in the state and how it does so.

Since 1895, the average annual precipitation in the state has increased 5.6 inches, most of which falls in short, heavy rain events.

That shift has increased the risk of flooding around the state, a situation that could worsen if state wetland protections are eliminated.

Cities like South Bend, Mishawaka, Niles and Elkhart have had to invest millions of dollars in water management due to the increased flooding.

Meersman said the repeal of the wetlands law will cause real, crippling effects on communities in the commission’s area.

“This could potentially increase the amount of inundation that occurs in the city of Goshen, for example. I think the other impact that we’re looking at is the maintenance of our regulated drains, that, as we send more water at them, they cost more money to maintain. And that’s borne directly by landowners, the farmers that are draining their tiles to these drains. So, without the storage we have in the landscape, we’re going to spend more money on maintaining the ditches,” Meersman said.

Widespread elimination of wetlands for land development was attempted in the early 1900s in the Kankakee River Basin after the Civil War.

A large swath of wetlands known as the Grand Kankakee Marsh was drained and developed, and by 1922, most of the area was converted into agricultural fields.

The destruction of the wetlands led to increased flooding, and by the 1970s, the state and federal government decided to invest millions of dollars to restore the wetlands, a plan that will take decades to carry out.

“Nature is big business, and I believe that we should not devalue that. The cost of losing wetlands is not just the cost of the wetlands. It’s the cost to replace or reproduce the effects that are generated by wetlands,” testified John Ketzenberger, director of government relations at the Nature Conservancy. “There is a common-sense agreement to be found, but until that is, we remain opposed.”

The House Environmental Affairs Committee will vote on the bill Monday, March 29.

House Environmental Committee Hears Testimony on Bill Seeking to Remove State Protections for Wetlands