Moving Forward in the Fight for Indiana’s Wetlands

From Jeff Stant, Executive Director

Another session of our General Assembly has finished, this one exhibiting the most hostile attitudes toward our environment and natural heritage in the seven years that I’ve been lobbying for IFA there.  Here is a detailed recounting of how the legislature gutted Indiana’s wetlands law.    

Senate Bill 389 began as a mean-spirited bill to get rid of all regulation of wetlands by the Indiana Department of Environmental Management (IDEM). This bill would have repealed Indiana’s isolated wetlands law, IC 13-18-22, its regulations and all ongoing legal actions to enforce them. 

Isolated wetlands are not regulated under the federal Clean Water Act (CWA). Because the Trump Administration greatly reduced wetlands protected under the CWA last year, the state’s isolated wetlands law, which covers all wetlands not regulated by the federal government, automatically filled that void.  The state law requires mitigation for wetlands that will be reduced, filled or drained, in recognition of the crucial importance that wetlands play in protecting our water supplies, absorbing storm waters, provide wildlife habitat, maintaining property values and providing other values.  SB 389 was authored by three republican senators, Chris Garton, Mark Messmer, and Linda Rogers with direct financial ties to the building industry which is angry that Trump’s deregulation did not give them a green light to fill wetlands in Indiana as they pleased.    

A forested wetland in Indiana. Forested wetlands are biologically diverse and highly valuable ecosystems.

The Senate Environmental Committee chaired by Messmer, held a two-hour hearing on SB 389 on January 25, 2021. IDEM and IDNR, were given a chance to explain the state’s wetlands regulatory program. Both opposed SB 389. The Committee subsequently heard testimony from builders, farmers and lawyers for developers alleging egregious examples of overreach by IDEM seeking to enforce the isolated wetlands law. They alleged that IDEM staff were requiring mitigation based on a single sample or photograph from a site, telling farmers they could not maintain their drain tiles, declaring that plowed fields with puddles after spring rains could no longer be farmed. All of these charges are either completely false or at best, unsubstantiated. That did not matter. IDEM was given no chance to respond to the charges.  Beyond the agencies, only one opponent of the bill was allowed to testify. At least a half dozen other opponents, including a farmer who drove for three hours from Knox County, a River Basin official who drove for three hours from South Bend, and representatives of IFA and other environmental organizations, were not allowed to testify. The Committee voted the bill out of that hearing on a party line vote, all 8 republicans supporting it and all 3 democrats opposing it.  

On the floor, Senator Karen Tallian (D-Portage) proposed a second reading amendment to send SB 389 to a summer study committee to get to the bottom of these charges of overreach and take the time to examine whether improvements are needed in Indiana’s wetlands regulatory program.  Senator Sue Glick (R-LaGrange), chair of the Senate Natural Resources Committee spoke strongly in favor of this amendment. Glick was swimming against a very strong current within the Senate Republican Caucus. Tallian’s amendment was rebuffed. 

The next day, Senator Michael Crider (R-Greenfield), former Director of the Law Enforcement Division of IDNR and a noted natural resource expert among the republicans, joined Senator Glick to speak in opposition to final passage of the bill (called Third Reading vote) by the Senate.  Governor Eric Holcomb publicly raised concern over the extreme policy of the bill. These opinions did not matter. The senate’s majority party was not interested in investigating relevant facts or the claims made against IDEM. By then, some 22 republican senators, more than half of their entire caucus, had signed on as authors or coauthors of SB 389. On February 1, the Senate passed SB 389 by a vote of 29 to 19. Nine republicans joined all ten democrats present to oppose passage. 

Yellow-crowned night herons depend on Indiana’s wetlands.

House Majority Floor Leader Representative Matt Lehman (R-Berne), Chair of the House Environmental Affairs Committee, Representative Douglas Gutwein (R-Francesville), and Representative Jeff Thompson (R-Lizton), a member of that Committee, were named Sponsors of SB 389 in the House.  It was referred to the Environmental Affairs Committee.  House leadership fully intended to move SB 389 through the House but there was good news from one of these sponsors.  Representative Gutwein declared that his Environmental Affairs Committee would not move the bill until IDEM’s fundamental objections were addressed.  

On March 22, this Committee held its first hearing of the year on SB 389.  Due to Gutwein’s  handling of testimony, all those who showed up to testify were allowed to do so.  Under Gutwein’s leadership, members of the Environmental Affairs Committee spent two months finding a compromise with the IDEM and IDNR staff who regulate wetlands and run the state’s mitigation program to replace wetlands that are drained with new wetlands.  A compromise amendment was agreed to with IDEM & IDNR and drafted by Representative Hal Slager (R-Schererville) that would clearly address concerns raised by some farmers while keeping the basic components of the wetlands law in place.  This “amendment 24” reduced the amount of mitigation required for draining certain wetlands, removed from regulation any temporary wetlands that exist only because of “ephemeral” streams that flow from single storm events, allowed for development of wetlands if they are in fields used for agriculture within the last 10 years, and allowed farmers to maintain field tiles within wetlands with a permit from IDEM as long as the tiles don’t drain those wetlands.  Nevertheless the protection for all 3 classes of wetlands regulated under the isolated wetlands law, (I, II, and III) would remain in place.       

On April 7, the Committee voted 12 to 0 to replace the Senate passed language in 389 entirely with amendment 24. The changed bill was sent to the floor of the House.   

Unfortunately, even though the State Chamber of Commerce, Indiana Farm Bureau and Duck’s Unlimited cosigned a letter endorsing amendment 24, the real estate developers and builders made it clear to House republican leaders that they were not happy with this compromise.  So, on April 12, after supporting a floor amendment (called second reading) that added a task force to the compromise to study whether further improvements were needed in the state’s regulation of wetlands, House Majority Floor Leader, Rep. Matt Lehman spoke forcefully for a second floor amendment authored by Assistant Majority Floor Leader, Rep. Shane Lindaur (R-Jasper).  This amendment — which had been floated earlier by the builders as “amendment 19” but was rejected by Gutwein — replaced all of amendment 24 with far more destructive language.  It removed all protection for Class I wetlands and much of Class II wetlands, essentially allowing most wetlands inside a municipal area to be drained and slashed mitigation requirements for remaining wetlands making them easier to develop. The republican super majority promptly passed Lindauer’s amendment by a vote of 54 to 42.  Speaker Todd Huston (R-Fishers) voted for the amendment and 4 Republicans were excused or did not vote, but 13 joined all 29 Democrats in opposing the amendment.  The House then passed an amendment by 61 to 34 to move the effective date of SB 389 retroactively up to January 1, 2021.     

The next day, April 13, the House passed SB 389 as amended, by a vote of 58 to 40. 

The manner in which SB 389 was amended on the floor reveals the hypocrisy that the House republican leadership was willing to engage in to serve special interests instead of Hoosiers.  For any other bill, republican leaders strongly defend their committee system, deferring to what the committee chairs report out.  But NOT FOR THIS ONE!  The facts that Majority Floor Leader Lehman threw his full weight against the House Environmental Committee’s carefully thought-out compromise, followed by Speaker Huston’s vote in support of the second reading floor amendment that got rid of that compromise language as well as for his vote for third reading final passage of the new language – when Speakers often don’t vote – were meant to tell republicans to ignore their own committee chair.

There were republicans in both chambers, like Senators Glick and Crider, and Representatives Gutwein, Slager, and David Abbott (R-Rome City) that fought hard against this bill.  However, they were outgunned in their own party caucuses by republican leaders.  The actions by Lehman, Lindauer and Huston squarely put a large part of the blame for this legislation’s drastic adverse consequences on our dwindling natural heritage on the House republican leadership.  Furthermore, the Senate’s republican leaders, President Protem, Rodric Bray and Majority Floor Leader, Mark Messmer, deserve even more blame, given the SB 389 they originally passed would have gotten rid of all state regulation of wetlands. They also had a chance to come to their senses and not concur with what the House passed. But on April 14, they chose to concur with the House by a vote of 31 to 19.  With this final vote by the Legislature, SB 389 became Senate Enrolled Act 389.

On April 29, after more than 100 organizations, 41 legislators and an untold large number of Hoosiers had asked Governor Holcomb to veto SEA 389, he signed the bill making it Public Law 160-2021.

That Governor Holcomb who had voiced concerns about the bill and allowed his IDNR and IDEM to oppose it, would not stand up for his own environmental regulators and veto the bill that arrived on his desk showed that on an environmental matter of fundamental importance to all Hoosiers, ultimately, he will also defer to well financed special interests.  

Public Law 160 is the most environmentally damaging law that has been enacted by the State House since I started lobbying for IFA in 2014.  Combined with the reduction in regulation of federal “jurisdictional wetlands” by the Trump Administration, IDEM estimates that Public Law 160 has resulted in the loss of legal protection for 550,000 to 600,000 acres of the 800,000 acres of wetlands remaining in Indiana.  We have already lost 85% of the 5.2 million acres of wetlands that Indiana once had. The legislature’s action will allow 69 to 75% of the remaining wetlands to be drained without any requirement to mitigate those actions or replace the wetlands.  In other words, while they profess to value the importance of wetlands, republican legislative leaders and Governor Holcomb decided it was okay to enact this law to reduce our original wetlands from 15% to less than 5% of what was here when US settlement of Indiana’s wilderness began.  Without a second thought, they wrote a likely death sentence for more than half of the animals on the state’s list of rare and endangered species that depend upon wetlands to survive.  

A large amount of the wetlands that will be lost are forested wetlands, some of the most biologically important forests in the state.  Most forested wetlands are considered higher quality, Class II wetlands.  Arguably under the new law, a Class II forested wetland could be degraded to the status of a Class I wetland by logging and then lose all protection from being drained.  Public Law 160 also exempts forested wetlands that are Class II wetlands if they’re below 3/8s of an acre, which most are, or below 3/4s of an acre in a municipality.  These city wetlands produce the highest ecosystem services, by absorbing millions of gallons of storm water, purifying surface water that recharges public drinking water aquifers, reducing heat, absorbing carbon and providing crucial habitat for animals.  

IDEM’s staff are also very concerned about wetlands around the natural lakes of northeast Indiana.  The reduction in federal protection of those wetlands by the Trump Administration’s Waters of the US Rule may leave a serious void.  It is not clear if Public Law 160 will afford these wetlands protection from being filled or drained. Without those wetlands purifying runoff into the lakes, lake front communities that rely on tourism and the clean water of those lakes may face serious erosion in property values and their economic well-being as lakes become eutrophic from increased pollution.   

We cannot just right Public Law 160 off as some bad dream.  The destruction of nature that will result must be photographed and documented for mass public distribution.  Those responsible for the law coming into being should be held accountable for the loss of our heritage and our wildlife, and the increased damages to property that will result.  If you have trouble finding out how your legislators voted in this battle, please contact us.  Then tell your legislators thank you if they voted to protect our wetlands or demand an accounting if they didn’t.  

IFA will work with other organizations to follow-up on the wetlands issue.   It has been around for a long time, but this year’s action by the General Assembly has awoken the public about wetlands like never before.  We must convert their concern into action! 

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