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. Regrettably, this may likely be the Indiana we live in if Senate Bill 389 is passed into law.
This bill, advocated by the Indiana Builders Association, repeals Indiana’s successful 18-year-old law to protect our valuable wetlands. Before 2003, Indiana did not have an isolated wetland statute because the U.S. Environmental Protection Agency (US EPA) regulated every wetland in the country. In 2001, the U.S. Supreme rendered a decision that created a gap leaving approximately one-third of Indiana’s wetlands no federal protection.
In 2002, I served on an interim study committee that approved a 40-page report on isolated wetlands, along with recommendations. This served as the framework for comprehensive isolated wetlands legislation that passed in 2003.
The proponents of SB 389 like to point out that Gov. Frank O’Bannon vetoed the legislation, but what they intentionally don’t explain is that he did so because he stated the legislation was not restrictive enough. The law, which I sponsored, was a commonsense approach balancing environmental, habitat and recreational benefits against community development needs. The Legislature overrode his veto and the statute has worked well for 18 years.
SB 389 has nothing to do with the Indiana Department of Environmental Management (IDEM) over regulating, bringing Indiana into line with the federal government and other states, or other arguments that are being advanced. The point of this bill is economic. If there is no wetlands law, developers can avoid the expense of protecting them through mitigation and if state water quality is degraded, well, too bad.
In addition to poor water quality, which is a bad enough outcome, 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 by federal agencies that are far harder to deal with than our state agency.
Proponents of SB 389 mistakenly say the Clean Water Act addresses all of Indiana’s water quality concerns, but only 20% of Indiana’s wetlands are protected by the Clean Water Act. If SB 389 becomes law, IDEM will not be required to show that work proposed in a wetland does not degrade state water quality.
There are several takeaways from issues surrounding SB 389. First, the issue was driven by a lobbying organization that did not provide legislators the 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 the background pertinent to the issue. Third, it has been about 19 years since a study committee looked at the issue.
Since these issues have such long-term significance for our natural resources, looking at them comprehensively during the interim should happen before blindly moving forward with ill-conceived legislation.