ENVIRONMENT

Amended Indiana bill puts more wetlands on the chopping block

London Gibson
Indianapolis Star

Environmentalists breathed a heavy, if reluctant, sigh of relief last week when a bill to repeal the state's wetlands protections was amended to cut regulation with a scalpel, rather than a cleaver. But more changes made to the bill on the House floor this week have them back on the defensive.

In its original form, Senate Bill 389 would have repealed the state's law regulating wetlands, leaving more than 80% of them unprotected from development. In committee last week, and after reviewing dozens of amendments, representatives amended the bill to reduce wetlands regulation on certain land types and cut back on permitting costs.

But now the bill has been reinforced, removing protections for one out of the three classifications of wetlands in the state, Class I wetlands. The bill also now cuts protections for Class II wetlands under a certain size. 

Class I wetlands account for 58% of the state's remaining wetlands, according to the Indiana Department of Environmental Management. Class II wetlands make up 41%. 

Lawmakers, pointing out that 'Class I' identifies wetlands with the least amount of hydrological and wildlife value, say the change answers concerns from landowners and builders claiming high costs and red tape without sacrificing the state's most valuable natural resources.

Cliff Chapman, executive director of the Central Indiana Land Trust, stands over a broken tile drainage pipe at Meltzer Woods on Friday, Jan. 22, 2021, in the Shelbyville, Ind. nature preserve.

"This is a bill that came to us with a lot of issues," said Rep. Matt Lehmen, R-Berne, as he introduced the bill on the House floor Tuesday. "I feel where Senate Bill 389 is now is a much better balance than when it came from the Senate and where we have been working on it."

Bill opponents say that "balance" isn't so balanced when the original version of the bill was so extreme to begin with. 

"The (amendment) that basically gutted Class I wetlands and severely restricted Class IIs are a big step backwards," said John Ketzenberger, government relations director for The Nature Conservancy's Indiana chapter. "Those are basically poison pills, meant to destroy the compromise."

The bill, which passed out of the House Tuesday by a vote of 58-40, had opposition from both Republicans and Democrats. 

Bill changes

SB 389 has been a point of concern for environmentalists from the beginning. Bill opponents note that Indiana's wetlands provide flood control and filtration services for the state's water and help to recharge groundwater resources.

While the federal government protects some wetlands, isolated wetlands — or those that aren't connected to streams of rivers — are solely protected by the state. These represent about 80% of Indiana's wetlands. 

That said, bill authors say the state's regulations are costly and complicated for landowners and small farmers. Some landowners may have to pay tens of thousands of dollars to do activity in a wetland. Many of these bill authors also have ties to the building industry.

Although it passed out of the Senate with speed, for the last several weeks the bill has been subject to thorough negotiation in the House Environmental Affairs Committee, which evaluated more than 20 amendments. SB 389 passed out of the committee last week, only to be significantly amended again on the House floor Monday. 

Other amendments to the bill passed on Monday would change the date of when the bill would become effective from July 1 this year to January 1 this year, retroactively grouping in cases that have been set in motion since then.

Another amendment establishes a task force to research wetlands effects on flooding, carbon storage and create recommendations for preserving them and improving the state's permitting process. The group, which would include representatives from the Indiana Builder's Association, White River Alliance, Indiana Farm Bureau and the Indiana Department of Environmental Management, is tasked with providing a report by November 1, 2022.

Meltzer Woods, a nature preserve in Shelbyville, Ind., on Friday, Jan. 22, 2021, includes wetlands.

This task force fulfills requests from environmentalists since SB 389 was first proposed. However, it would have been more effective to have the task force first, and legislation passed later, said Indra Frank, director of Environmental Health and Water Policy for the Hoosier Environmental Council.

"Instead, we're going to go into that task force having already had this bill, if it passes," Frank said. "So I think it reduces the effectiveness of the task force. It's still better to have a task force than to not have it. Because it's possible that that task force may be able to make a strong case for undoing some of what we're seeing in Senate Bill 389."

'Worth their weight'

Central to the point of debate around these changes to SB 389 is whether or not Class I wetlands are valuable enough to protect. 

Environmentalists say they are. 

Class I wetlands represent the majority of the state's remaining wetlands. These wetlands are either disturbed by human activity or only support minimal wildlife habitat. On the other end of the spectrum, Class III wetlands can sustain significant hydrologic function and habitat. Class II wetlands fall somewhere in the middle. 

Although lawmakers may talk about Class I wetlands as if they don't have value, that's not the case, Frank said. These wetlands still play a vital role in the greater water system around the state. 

"Even if a wetland does not house wildlife populations, it still plays a hydrologic function," Frank said. "Losing the Class I wetlands is still a loss of those benefits."

Indiana's wetlands save the state $1.8 billion in water storage, according to the Department of Natural Resources, and $202 million in water purification. Rep. Carolyn Jackson, D-Hammond, said the financial impact of wetlands are part of the reason why SB 389 should not pass. 

"These wetlands, Class I and Class II, are worth their weight," she said. "We need to keep them."

Frank also points out the classification system is unique to Indiana, and one that many environmentalists have called for taking out of use.

The wetlands task force established by the amended bill would be assigned with reviewing and recommending new isolated wetlands classifications more in line with those used by the Army Corps of Engineers, which oversees federally protected wetlands. 

The task force would also evaluate ways to improve the state's current wetlands permitting process and costs of mitigating wetlands, in hopes of reaching a compromise with builders and landowners. 

The issue isn't going anywhere, Ketzenberger said, which is why the task force will be valuable moving forward in deciding how much landowners should have to pay in order to protect these natural resources. 

"The question that needs to be asked is, is that a reasonable expense given the value of what's being lost?" he asked. "And I argue that's very much the case."

The bill passed out of the House and was returned to the Senate with amendments on Tuesday afternoon. The Senate has filed a motion to concur with the amendments, but has not yet voted on the concurrence.

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.