Bill to eliminate wetlands law amended to cut regulation with scalpel, not ‘meat cleaver’

A bill that would have eliminated the state’s law regulating wetlands was amended Wednesday morning to tackle the issue of wetlands regulation surgically, rather than with a “meat cleaver.”

The bill, which has been the subject of heated debate, initially proposed repealing the state’s environmental program protecting wetlands, which would have left more than 80% of the state’s wetlands unprotected. Authors claimed the program created unnecessary red tape and was costly for landowners. 

‘Last line of defense’:New bill would strip protections for many of Indiana’s wetlands

Environmentalists and good government experts alike staunchly opposed the legislation, pointing out that wetlands play a crucial role in mitigating flooding and water quality. They also were concerned that bill authors have close ties to the building industry.

After several iterations of amendments seeking compromise, the House Environmental Affairs Committee voted in favor of one Wednesday that would:

  • Not require a wetlands permit for developing on land that has been used as cropland in the last five years, or in the last 10 years if the U.S. Army Corps of Engineers has found there is no federally-protected wetland on the property
  • Exempt wetlands created by an ephemeral stream, a temporary stream caused by runoff or rain
  • Not require a permit for maintaining drainage tiles or field tiles in a Class I wetland, which are ranked the lowest quality wetlands by the state
  • Allow landowners in a Class II or III wetland, the two highest quality wetlands in the state, to maintain drainage or field tiles if they meet certain conditions and obtain a general operating permit
  • Require landowners to pay less for wetlands mitigation by changing the required ratios. In many cases, landowners developing a wetland have to either purchase mitigation credits or rebuild a wetlands elsewhere at a high ratio. This amendment sets and reduces those ratios at 1:1 for Class I wetlands, 1.5:1 for Class II wetlands and 2:1 for forested Class II wetlands. 
  • Urges the establishment of an interim study committee to evaluate the effects of wetlands on construction costs, flood prevention, water pollution and groundwater resources

Some lawmakers cited this amendment as an accomplishment for addressing issues brought up by bill authors and those in favor of SB 389 while still maintaining some level of wetlands regulation under the Indiana Department of Environmental Management. 

“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,” said Rep. Harold Slager, R-Schererville, while introducing the amendment to the committee.

Rep. Douglas Gutwein listens to speakers as the House meets Monday, Feb. 15, 2021, inside the temporary chamber at the Government Center South in Indianapolis.

Not everyone was in favor of the amendment, however. Democrat and Republican representatives voted in favor of the bill passing out committee, but said they may change their minds on the House floor. 

Rep. J.D. Prescott, R-Union, said it was a matter of “taking what he could get.”

“Senate Bill 389 in its original form was a much stronger bill, a better bill,” Prescott said in committee. “IDEM is an agency that has been out of control and we need to make sure we reign them in.”

Opponents of the bill saw the amendment as a step in the right direction, although the it is still more stringent than they would like.

“It’s clearly a step toward our interests … but you know, we were coming from a full repeal,” said Mike Leppert, who’s representing the Conservation Law Center and the American Society of Landscape Architects in opposition to the bill. “This is the kind of amendment that would have been concerning if it were the original version of it, but its certainly a lot better than what was on the table before.”

Bill author Sen. Chris Garten, R-Scottsburg, issued a statement Wednesday afternoon saying that he appreciates Chairman Gutwein’s work on SB 389, and is currently educating himself on the potential effects of the amendment.  

“I am encouraged that all authors, sponsors, and co-sponsors of this bill are committed to drafting a finished piece of legislation that creates a fair and equitable wetlands statute that continues to recognize and protect Indiana’s natural resources,” he said in the statement.

Other bill authors Sens. Mark Messmer, R-Jasper, and Linda Rogers, R-Granger, were not immediately available for comment about the changes to SB 389.

Wetlands regulation in Indiana

Farming and development has pushed out much of Indiana’s original wetlands, causing the state to lose 85% of its wetlands in the last century.

But these natural resources soak up excess water and help to prevent flooding, as well as filter out pollutants and provide habitat for local wildlife. Experts also say many of Indiana’s wetlands help recharge state groundwater resources, which provide drinking water to almost two thirds of Hoosiers. 

This is why the state regulates them. Since the early 2000s, Indiana has protected “isolated wetlands,” or wetlands that aren’t connected to surface water such as streams or rivers. Isolated wetlands represent about 80% of the state’s wetlands. The other 20% are regulated federally under the Clean Water Act. 

Cliff Chapman, executive director of the Central Indiana Land Trust, shows off footbridges built for visitors to the wetlands at Meltzer Woods on Friday, Jan. 22, 2021, in the Shelbyville, Ind. nature preserve. A bill put forward this legislative session would repeal the state-regulated wetlands law, which protects wetlands throughout the state.

Builders who want to develop an area with a wetland must acquire a permit from IDEM and mitigate the wetland they will be affecting. To do this, they can either create a replacement wetland or pay a fee for the Department of Natural Resources to do that work for them. 

The process can be costly. Wetlands delineation alone is in the thousands of dollars, and mitigation ratios can be high. If a landowner is planning to destroy a highly forested wetland, for example, they may have to mitigate it at a ratio of 4:1 — this means if they destroy one acre, they have to mitigate at least four. In the end, the process can be in the tens of thousands of dollars. 

Wetlands bill:Authors of bill to eliminate Indiana’s wetlands protections have ties to building industry

SB 389 supporters, which include builders associations and some farmers, say the process casts an unnecessary and expensive burden on landowners. 

An IndyStar investigation found many of the lawmakers behind the bill have close ties to the building industry. All three bill authors run companies that are members of the Indiana Builders Association, and two are current or former board members.

A change in pace

SB 389 appeared to be fast-tracked in the first leg of the session, gaining a hearing in the Senate Environmental Affairs Committee just days after the bill was posted and voted out of committee within its first hearing.

But the House Environmental Affairs committee is taking it slower.

The bill was heard on March 22 and given two hours of testimony about proposed amendments. In that hearing, committee chairman Rep. Doug Gutwein, R-Francesville, made it clear that lawmakers would have at least a week to evaluate proposed amendments and the issue at hand. Instead, they received more than two weeks as lawmakers negotiated a slew of potential amendments. 

“The bill comes flying out of the Senate committee with only a very extremely limited picture being painted,” Leppert said. “The House took a different approach from the beginning and explained to us they weren’t going to do things that way.”

That said, the negotiations process has been rocky. Before the bill’s first hearing in the House last month, IDEM said it was surprised by amendments that didn’t match the legislation they thought they had negotiated.

Wetlands bill:The state thought it had reached a compromise on wetlands bill. Then it was blindsided.

In the hearing, several environmentalists spoke against those proposed amendments, saying they would still endanger wetlands that play a role in absorbing and filtering Indiana’s water. 

A broken tile farm drainage pipe lies at Meltzer Woods on Friday, Jan. 22, 2021, in the Shelbyville, Ind. nature preserve.

Indra Frank, director of Environmental Health and Water Policy for the Hoosier Environmental Council, said those amendments offered limited options.

“It’s about how much Indiana wetlands should be protected. The original bill says we protect none of them,” Frank said. “(These amendments say) we should protect almost none of them … or we protect just a few.”

After that hearing, lawmakers went back to the table and came up with the current amendment that was approved Wednesday morning.

But a big problem during the process, Leppert said, is that much of the amendment negotiations have been done without input from the 90 organizations that oppose the bill. 

Many of these same organizations signed on to a letter primarily authored by Jill Hoffmann, executive director of the White River Alliance. 

The letter suggests policy alternatives to SB 389, such as changing Indiana’s wetlands classifications from the Classes I, II and III it has today to align with classification from the U.S.  Army Corp of Engineers, which regulates federally protected wetland, and assign mitigation ratios that way. 

It also suggests exempting areas used for cropland in the last five years, a change made in the bill’s most recent amendment, or creating tax incentives for landowners to preserve existing wetlands. 

Leppert, who was representing a conservation organization back in the early2000s when this wetlands law was initially passed, said at the time it was viewed as a defeat by the conservation community.

Now, they’re fighting to keep it intact.

“It’s just ironic,” he said, “that we’re trying to defend the law that wasn’t good enough 18 years ago.”

Contact IndyStar reporter London Gibson at 317-419-1912 or lbgibson@gannett.com. Follow her on Twitter @londongibson

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IndyStar’s environmental reporting project is made possible through the generous support of the nonprofit Nina Mason Pulliam Charitable Trust.