Bill further rolling back Indiana wetland protections is first to land on governor’s desk

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Gov. Eric Holcomb speaking at Purdue University, Wednesday, July 20, 2022 (Peter Blanchard/IBJ)

Republican state lawmakers quietly fast-tracked a contentious bill that will further strip protections on some Indiana wetlands. It’s the first piece of legislation to head to the governor’s desk this session.

The Senate approved the measure 32-17 on Tuesday — with eight Republicans joining the opposition. It’s not clear where Gov. Eric Holcomb stands on the bill, however.

House Bill 1383 reduces wetland protection by shifting some Class III wetlands — which are currently protected — down to Class II, which have far fewer safeguards.

The rush happened despite significant pushback to the bill.

Sen. Rick Niemeyer, R-Lowell, who sponsored the bill, said it ensures “significant, isolated wetlands” are protected in Indiana, “but without needlessly driving up the costs of buying a home, operating a business or farming.”

“I believe in wetlands … but we also need some clarity for property owners when they’re trying to do something with their property and they get pushed back for six months to a year before they can go forward, and it costs them a lot of money,” Niemeyer said. “I don’t think it’s going to take away a lot of wetlands, and it might change some classifications in the state of Indiana that need to be changed. But (those wetlands) don’t meet the qualifications of what level they’re in now.”

Representatives from the Indiana Builders Association said it’s a compromise to prevent permitting delays. Rick Wajda, the association’s CEO, said about a quarter of the cost associated with homebuilding is tied to local, state and federal regulatory costs.

But environmental groups worry it does more than clarify existing law.

“Indiana cannot afford to lose more wetlands,” said Indra Frank, Director of Environmental Health and Water Policy for the Hoosier Environmental Council (HEC). “Wetlands provide essential functions like soaking up stormwater, reducing flooding and replenishing our aquifers.”

A ‘fast’ process

HB 1383 advanced from the House chamber in a 64-30 vote on Jan. 23 and was quickly heard by the Senate environmental committee Jan. 31 instead of waiting for all bills to switch chambers.

More than a dozen people testified on the bill in the Senate committee, most of them against the proposal.

Advocates, wetland scientists, environmental attorneys and others pointed out the loss of wetland protection in the bill and the importance of wetlands to Indiana’s water resources.

Still, the committee voted 7-2, along party lines, to pass the bill onto the full Senate.

Democrats repeatedly asked why the bill was being rushed, but members of the supermajority did not provide an answer.

Speaking from the Senate floor on Tuesday, Niemeyer acknowledged the bill moved “fast” but attributed such to the quicker pace in the short session: “This was such an important bill that needed to be done.”

Sen. Chris Garten, R-Charlestown, additionally held that the bill “went through every single legislative process that any other bill that will get passed or signed into law will go through.”

“There was not one step skipped,” he continued. “There was not one committee hearing missed, and there was not anything considered null and void. It went through every legal process that this body has.”

Multiple Democrat attempts to amend the bill were also unsuccessful.

“Why would we do something that is going to increase the chances of Indiana flooding or being at greater risk of drought — removing the free and best way that we can recharge our groundwater, purify our water?” asked Sen. Shelli Yoder, D-Bloomington. “That’s a conservative, conservationist mindset to preserve what we have left of our wetlands.”

Builders, environmental consultants and staff at the Indiana Department of Environmental Management (IDEM) helped draft the legislation last summer. Two IDEM water regulators have since told the IndyStar that experts in the wetlands program were not included in drafting the legislation, though.

Rolling back more protections

Indiana’s wetlands are grouped into three tiers by the state. Only the highest ranked Class III wetlands receive full protections. Class II wetlands have fewer protections, and Class I has none. That system went into effect in 2022.

The change after the General Assembly passed SEA 389, which significantly rolled back state wetland protection. The HEC contends that — since the law took effect — 75% of the wetland acres impacted by construction have been lost with no mitigation or replacement of their lost function.

Compounding that loss of wetland protections, the U.S. Supreme Court ruled in 2023 that federal protections for wetlands under the Clean Water Act only apply to those with a continuous surface connection to federally protected waterways that make them “indistinguishable” from those waters.

The ruling now allows states to further strip away regulations that currently keep developers from repurposing wetlands for commercial use.

Environmental groups and experts note that wetlands are vital for soaking up excess nutrients in soil — especially elements like nitrogen and phosphorus, which are common ingredients in fertilizer that can leach from farmland — and preventing them from creating problems elsewhere.

Wetlands also catch and hold excess stormwater, reducing flooding on that landscape. Additionally, they help cleanse underground aquifers. That’s important, given that about 70% of Indiana residents rely on groundwater for at least part of their drinking water supply, according to the Indiana Department of Environmental Management.

The Indiana Department of Natural Resources emphasizes, too, that wetlands provide a habitat for half of Indiana species with small or declining populations.

Scientists and environmental advocates further emphasize that less pristine wetlands still contain hundreds of thousands of gallons of water per acre. That water is filtered, retained during droughts and diverted during floods.

But Garten argued Indiana’s recent wetland laws have helped mitigate — not reduce — wetlands. He expressed frustration, too, about ongoing debate over wetland definitions, which he chalked up to “emotional debates and emotional arguments based on nothing but emotion.”

“We’re not talking about ponds. We’re not talking about rivers. We’re not talking about Lake Michigan,” Garten said. “We’re talking about land that doesn’t have to be wet. But we are calling it a wetland. Someone, make this make sense for me.”

The Indiana Capital Chronicle is an independent, not-for-profit news organization that covers state government, policy and elections.

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18 thoughts on “Bill further rolling back Indiana wetland protections is first to land on governor’s desk

  1. Once the wetlands are gone, they are gone – period. We can figure out other ways to support and stimulate housing and industry, but once this resource is gone, it’s too late. If Holcomb signs this, he will be caving to business interests and not supporting what is best for Indiana in the long run.

    1. The wetlands are not quite gone. The poor sucker that ends up buying the “developed” property will still have to deal with the drainage and will most likely have a high probability of flooding. Or even worse, the water that’s no longer retained is now somebody else’s problem, so why would the developer care?

    2. I am all for protecting the environment. However, Indiana generally requires developers to preserve wetlands elsewhere or contribute to a wetland mitigation bank. This process usually requires developers to double the impact in a positive way for any wetlands they decide to build on. For example, if 1 acre is disturbed, then 2 acres need to be added elsewhere in the state, where it will have even more protections and less likelihood of development, given it is a larger designated wetland tract. It is not a perfect process, but to believe that once the wetlands are gone, they are gone – is somewhat misleading. On the site being developed, yes. But it’s not a use it and lose it process.

    3. JJ D, as a water resource scientist I can tell you mitigation banks only contribute a fraction of the benefit of natural (in place) wetlands. It’s not the same. Mix in future drainage issues like already mentioned and you see why total protection is important.

  2. “It was Thoreau who in writing of the destruction of the forests exclaimed, ‘Thank heaven they cannot cut down the clouds.’ Aye, but they can!…If men in their greed cut forests that preserve and distill moisture, clear fields, take the shelter of trees from creeks and rivers until they evaporate, and drain the water from swamps so that they can be cleared and cultivated, they prevent vapor from rising. And if it does not rise, it cannot fall. Man can change and is changing the forces of nature. Man can cut down the clouds.”
    Gene Stratton Porter one of our state’s early environmentalists and best selling author wrote this in the early 1900’s and nothing has changed.

    1. This is the entire Republican attitude to Indiana in one bill – use it up completely because there is no future worth investing or caring about.

  3. Laughable to think that if this produces cost savings in land development that it would be realized by the home buyer rather than a bigger profit line for the developer.

    1. That doesn’t matter. A Holcomb veto can and will be easily over-ridden by a simple majority of the same legislature that fast-tracked this bill through a short session.

  4. Hopefully everyone who has commented here does not vote Republican. This is what you get when you have a legislative super majority over the course of many years. They do what they want when they want and in the end the state suffers. In our case it is a super Republican majority but I would feel the same if it were a Democratic super majority. It hurts more than it helps.

  5. I can only assume no commenter above has read the bill, and neither have I. Sounds like the AP and I BJ have not read it either. Makes me wonder what is actually being changed, that way, I could actually have a real opinion as opposed to hyped up here-say.

  6. California paved over its wetlands, and look how well that’s gone for them. The impact of flooding is much worse when there’s no wetlands to absorb the water, only hard pavement.

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