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

A bill reducing protections for wetlands now heads to the governor. (Photo from Indiana Department of Environmental Management)

By Casey Smith | Indiana Capital Chronicle

For The Republic

INDIANAPOLIS — 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.”

Sen. Rick Niemeyer in the Senate Chamber on Jan. 9, 2024. (Whitney Downard/Indiana Capital Chronicle) 

“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.”

Sen. Shelli Yoder, D-Bloomington testifies before the Senate Chamber. (File photo from 2022) 

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.”

— Indiana Capital Chronicle covers state government and the state legislature. For more, visit indianacapitalchronicle.com.