Pared Wetlands Bill Removes Protections for Temporary Streams, Adds Exemptions for Croplands

Amendment to Senate Bill 389 excludes ephemeral streams from state protections, reduces mitigation ratios and provides further exemptions for croplands.
April 8, 2021

A bill seeking to revoke all state protections for Indiana wetlands has been significantly reduced in scope by the House Environmental Affairs Committee.

In its original language, Senate Bill 389 sought the repeal of all state wetland protections and permitting authorized by the Indiana Legislature in 2003.

An amendment passed unanimously by the House Environmental Affairs Committee preserves state protections of most wetlands and adds more exemptions for croplands, the permitting of which has often been cited by bill proponents as the main justification for the bill.

“So, what we've done in Amendment 24, fundamentally, is to not exclude any classes of wetlands from permitting or mitigation, but rather, to exclude certain types of situations we've run into from being considered a wetland,” Rep. Hal Slager said at the House Environmental Affairs Committee, where he introduced the amendment. “And the other thing that we did was to exclude an ephemeral stream from being considered a wetland, that's a temporary stream from runoff of rain. And, and we're having some problems there. So, rather than trying to take a meat cleaver to this, we were a little more surgical and prescriptive in just trying to identify the problem and working within that.”

The amendment would remove the last remaining legal protection in the state for ephemeral streams, or streams that flow only during and after rainfall and snow melt.

The Indiana Department of Environmental Management in September said it would not consider ephemeral streams as part of its federal Clean Water Act water quality certification.

IDEM commissioner Bruno Pigott said the decision was due to the Trump administration narrowing the list of waters protected by federal regulations in 2020.

The amendment would also reduce the mitigation ratios associated with wetland permitting activities.

Landowners who choose to develop wetlands, but are not exempt from the law through numerous codified exemptions, have to replace the wetlands they disturb or pay the Indiana Department of Natural Resources to do so through an in-lieu fee program, the rates of which are determined by the class of wetland being mitigated.

The bill also reduces the amount of time IDEM has to issue a wetland permit and encourages the Legislature to assign an interim study committee to study the maintenance and management of wetlands in Indiana.

Slager said the amendment was a “prudent” alternative to the original language of the bill.

“I understand that there may be a few little tweaks that we want to do as it relates to, for instance, cumulative issues. I think that needs a little deeper dive. In fact, a lot of this needs a little deeper dive, so we've also included some language to take this beyond this to a legislative study to see what else we might do. But rather than risking going too far, it is my opinion, and I'm not going to speak for anybody else. But my opinion, this is a prudent way to go forward,” Slager said.

The bill will now be heard by the full House of Representatives on April 12.

The Hoosier Environmental Council has advised its members to support the bill with the current amendment but to not support any future amendments if they seek to further weaken state protections for wetlands.

The HEC last week, along with dozens of other organizations and several city governments, sent letters to legislators asking them to consider policy changes instead of supporting SB 389.

Pared Wetlands Bill Removes Protections for Temporary Streams, Adds Exemptions for Croplands