WETLANDS THREAT: A bill in the legislature would strip protections from sensitive habitat — and that would be disastrous

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Beverly Gard [email protected]

Imagine an Indiana without the wetlands that play host to a vast variety of migrating waterfowl. Imagine an Indiana without the estimated 300 nesting pairs of our national symbol, the bald eagle. Imagine an Indiana without winding nature trails and nature parks built around isolated wetlands and the diverse ecosystems they support, providing unique educational and recreational benefits for Hoosiers.

Regrettably, this may likely be the Indiana we live in if Senate Bill 389 is passed into law.

Today, wetlands cover less than 4% of Indiana. In addition to providing habitat to numerous threatened and endangered wildlife species, wetlands naturally store nutrients and filter sediments, enabling our lakes and waterways to be cleaner and our drinking water to be safer. Wetlands serve as a sponge, soaking up floodwaters and helping to control erosion. Indiana’s health, economy and quality of life are all greatly enhanced by our wetlands.

Before 2003, Indiana did not have an isolated wetland statute because the U.S. Environmental Protection Agency regulated every wetland in the country. In 2001, the U.S. Supreme Court rendered a decision that created a gap, leaving approximately one-third of Indiana’s wetlands with no federal protection.

Realizing legislators could not begin to grasp the depth of this decision’s impact on Indiana wetlands in a two-hour committee meeting, the Indiana General Assembly assigned the issue to an interim study committee in 2002 to thoroughly examine its implications. The 40-page final report, which included recommendations adopted unanimously, served as the framework for the comprehensive Indiana wetlands legislation adopted in 2003. As the Senate sponsor of the legislation, I spent numerous hours refining its provisions as it moved through the process.

Proponents of SB 389 like to tout that Gov. Frank O’Bannon vetoed this legislation; however, they never mention his stated reason. In his veto message, the governor asserted that legislation did not go far enough and specified the areas that he wanted strengthened. The general assembly overrode the veto, but we worked during the interim to address his expressed concerns using the framework of the original study committee report. Those amendments were then adopted in the next legislative session, reflecting a true bipartisan approach to the wetlands issue.

Although Indiana’s isolated-wetlands statute has worked well for more than 18 years, some legislators — under pressure applied by the Indiana Builders Association — want to remove isolated-wetlands protection from Indiana’s statutes. The Builders Association is the same lobbying organization that engineered the removal of the Indiana Department of Health’s representative from the Indiana Environmental Rules Board, replacing that position with a builder member of their association. What was the underlying reason behind this maneuver — concern for Indiana’s environment and health or greater interest in financial gain?

SB 389 has nothing to do with bringing Indiana into line with the federal government or other states. To be more direct, its intent is simply to remove all protections from Indiana’s isolated wetlands. These wetlands have the same characteristics, function, biodiversity and environmental benefits as the wetlands that are protected under federal law.

During my involvement with environmental matters, the EPA has attempted to amend the definition of “Waters of the United States” several times to clarify what is inherently an unclear concept. The debate on what is considered a WOTUS has been raging since the inception of the Clean Water Act in 1972. Trying to align Indiana with regulations of the federal government or other states will inevitably cause more confusion as regulations will continue to change. Because this is a moving target, Indiana must have sound environmental regulation in place that stands on its own merit, providing certainty while not inviting federal intrusion.

The debate and changes to WOTUS are driven by Supreme Court decisions as well as the policies of each presidential administration. Given President Biden’s stated environmental priorities, we can expect a more stringent approach to environmental policies and regulations from the new administration in contrast to the recent past. If SB 389 becomes law, Indiana’s regulatory certainty will remain at the mercy of the ever-changing federal scheme. Wetlands not protected today may well be protected tomorrow, leaving Hoosiers at the mercy of enforcement by the EPA and Army Corps of Engineers.

Proponents of SB 389 mistakenly view the Clean Water Act as sufficiently addressing all of Indiana’s water-quality concerns. In fact, under the recent WOTUS rule change in 2020, now only 20% of Indiana’s wetlands remain protected by the Clean Water Act. Prior to the rule change, 60% of wetlands in Indiana fell under federal jurisdiction. It is also incorrect to assume the Indiana Department of Environmental Management still will perform a Section 401 Water Quality Certification on these wetlands. If SB 389 becomes law, no certification or permit will be required from IDEM to demonstrate that work proposed in a wetland does not degrade state water quality.

During testimony, we heard accusations of state regulators mistreating constituents and requesting unreasonable amounts of money for environmental mitigation. If these allegations are indeed true, SB 389 does nothing to address them. In my years of experience as a legislator and chair of the Environmental Rules Board, IDEM has always addressed personnel issues brought to its attention and has rightly fired staff who have behaved in an unprofessional manner.

It is also important to note that IDEM does not receive any money for mitigation. The In-Lieu Fee program is an option that can be utilized by permittees to satisfy mitigation requirements. A trust fund managed by the Indiana Department of Natural Resources collects credits for this program, which are then applied solely to wetland and stream mitigation projects for which DNR assumes responsibility on behalf of the permittee.

Several important takeaways can be gleaned from the discussion surrounding SB 389. First, the bill has been driven by a lobbying organization that did not provide legislators with background necessary to fully understand the issue. Second, with an issue as complicated as wetlands regulation, a two-hour committee meeting is far from adequate for legislators to understand the issue and its ramifications. Third, nearly two decades have passed since a study committee has thoroughly studied wetlands regulation in Indiana. Given the profound long-term significance wetlands have on our natural resources, comprehensive study must be conducted before blindly moving forward with ill-conceived legislation.

Beverly Gard served 24 years in the Indiana Senate. She was chair of the Senate Environmental Affairs Committee for several terms and was chair of the National Conference of State Legislatures Environment Committee for three years. Currently, she serves as chair of the Indiana Environmental Rules Board. Send comments to [email protected].