Indiana Gov. Eric Holcomb will soon have to decide whether a bill that eliminates protections for an entire class of wetlands and drastically reduces state protections for most remaining wetlands should become Indiana law.
The controversial Senate Bill 389, which began as a bill seeking to revoke all state protections for Indiana’s few remaining wetlands, made its way through the Legislature shedding, then regaining, drastic reductions to state protections in place since 2004.
The version of SB 389 that passed the Indiana House of Representatives and Senate more than halves the amount of wetlands protected by the Isolated Wetlands Law, a bill that defined which wetlands were regulated by the state and established a way for landowners to be able to develop their land while still preserving the state’s crucial wetlands.
The current bill was authored in the Senate by three members of the Indiana Builders Association, which supports the bill and stands to profit from reduced development costs that occur if wetland protections are removed. The bill is also supported by other powerful lobbying organizations like the Indiana Farm Bureau and the Indiana Chamber of Commerce, a fact likely to influence the governor’s decision.
The current version of the bill is being touted by proponents as a “middle ground” between a total repeal of all state protections for wetlands and the maintaining of current profit-reducing wetland protections.
“When it left [the Senate], we voted on a full repeal of the current wetland statute in hopes that we reach some middle ground through further vetting of this through conversations with stakeholders, [Indiana Department of Environmental Management] and our fellow other chamber members alike. It came back in that place. I think we have found a middle ground,” said coauthor Sen. Chris Garten before the final vote on the bill.
On the other side of the bill is a coalition of dozens of environmental groups, conservation groups, hunting organizations, city governments and their departments, regional river basin commissions and religious organizations that argues the bill would be disastrous for the state’s wetlands and would cause a damaging ripple effect to the environment, to wildlife and to infrastructure susceptible to flooding.
The group says it would cost millions of taxpayer dollars to mitigate the potential consequences of the bill.
The two sides disagree on the impact an absence of state protections for Indiana’s wetlands would have on Hoosiers and on wildlife.
SB 389’s proponents have used the language in the Isolated Wetlands Law describing wetland types to determine the potential impact of their loss.
Wetlands in Indiana are currently designated as one of three classes, determined by its hydrologic function and how much wildlife it supports.
Indiana state law assigns Class I wetland classification to wetlands where at least 50% of the land has been disturbed or affected by human activity or development and supports “minimal” wildlife or hydrologic function. Class III wetlands are minimally disturbed by human activity and support “more than minimal” wildlife or hydrologic functions. Class II wetlands are defined as not being either Class I or Class III.
According to IDEM, of the 800,000 acres of wetlands left in Indiana, about 425,000 acres are classified as Class I; 250,000 acres are Class II; and between 10,000 and 20,000 acres are Class III. The remaining 100,000 or so acres of Indiana wetlands are protected by federal law.
Garten argued that, based on the legal definition, the elimination of protections for Class I wetlands would have little effect on flooding, hydrologic functions or wildlife habitats.
“Let's take a moment and educate ourselves about how we define class ones. If you go down to the very last line of the Class I definition, the wetland does not possess significant hydrologic function,” Garten said. “If flooding was the issue, that would be a significant hydrologic function. If it has a significant hydrologic function, it's not a Class I wetland. So, it's very important to note that a wetland or wetlands are not the same.”
Experts from multiple scientific disciplines, including wetland scientists, hydrologists, soil chemists, ecologists and urban planners disagree. They say the loss of wetlands in Indiana, a possibility if protections are removed, would result in a ripple effect across the state.
FLOODING ALREADY AN ISSUE
While wetlands make up only about 4% of the state, they provide a habitat for 50% of animal species with small or declining populations.
Besides wildlife, wetlands also serve important water management functions. Wetlands trap and slowly release water, filtering it through sediment and vegetation before it reaches surface and groundwater systems.
The St. Joseph River Basin Commission and Maumee River Basin Commission, groups representing a total of 13 northeastern and eastern Indiana counties, oppose the bill.
St. Joseph River Basin Commission director Matt Meersman testified to the House Environmental Affairs Committee about the effect reduced wetlands protections would have on the seven Indiana counties the commission serves.
“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,” Meersman testified.
Over the past 125 years, the amount of average annual precipitation in the state has increased by 5.6 inches. The precipitation is falling in short amounts of time, leading to an increase in flood risk across most of the state.
Without Indiana’s wetlands, local governments would have to spend millions of dollars to replicate the natural functions performed by wetlands, including water filtration and water management to prevent flooding, Meersman said.
Those functions are already being tested in some parts of the state, including the St. Joseph River Basin, where multiple historic floods have stricken the area within the past five years.
The St. Joseph River at South Bend has experienced historic crests regularly since the turn of the century. The river there has experienced 21 of its 25 historic crests within the past 25 years, according to National Weather Service records.
Several communities have already spent millions of taxpayer dollars to improve their infrastructure to deal with the increased flooding resulting from climate change, with some taking on hundreds of millions in dollars in loans from the state and federal government, even with wetlands still in place.
Rep. Maureen Bauer, who represents Indiana House District 6, said South Bend has spent nearly $6 million since 2018 to fix infrastructure damaged by flooding and will bid for $2 million in infrastructure projects.
“Indiana will always be at risk for flooding,” Bauer told the House. “Data tracked by the National Weather Service ranked Indiana second in flood-related deaths behind Kentucky. Most of those deaths in 2020 were while driving as a result of flooded roadways. Wetlands absorb excess rain. The problem is Indiana has lost 85% of its original wetlands, which is why a bipartisan Legislature decided to act nearly 20 years ago. Protecting our wetlands is a way to be a more resilient state in times of natural disaster. Wetlands are our last line of defense.”
Under the 2004 law Bauer referenced, landowners could receive permits to develop wetlands on their property, but would be required to replace the wetlands in order to preserve their functions or pay the Indiana Department of Natural Resources to do so through the in-lieu fee program.
The class of the wetland determines how much land a landowner would have to mitigate or how much they would have to pay to get that done.
But not all of the state’s wetlands were guaranteed protection under the 2004 law. The Isolated Wetlands Law has multiple exemptions for wetland permits, including for farming, maintenance and other activities.
SB 389 upends the 2004 law, eliminating all permitting requirements, including mitigation requirements, for Class I wetlands and providing numerous exemptions for Class II wetlands. The bill also removes all state protections for streams that flow only during and after rain or snowmelt, called ephemeral streams.
The bill would maintain most protections for Class III wetlands, which are important, but only make up about 2.5% of the state’s total wetlands and would establish a 14-member wetlands taskforce to research and develop strategies for the remaining wetlands.
Sen. Susan Glick said she thinks landowners need a seat at the table, but not at the expense of the environment.
“I'm not in favor of destroying a system that purifies our water, that protects our aquifer, that takes areas of this state which are flood prone and makes them dangerous for building for living,” she said before the final vote. “You're destroying something that [has taken nature] hundreds of thousands of years to create.”
Gov. Holcomb will have to decide whether the economic benefit of SB 389 outweighs the cumulative costs to local governments and Indiana’s natural resources.