Indiana Builders Attempt ‘End Run’ at Eliminating Remaining State Protections for Wetlands

Wetlands amendment ignores recommendations of Indiana Wetlands Task Force report.
March 24, 2023

Indiana Builders Association members serving as state senators succeeded in eliminating most state protections for the state’s remaining wetlands in 2021, and now the state’s power homebuilding lobby is attempting to clamp down on the few protections that remain.

Rep. Doug Miller, a former IBA president associated with at least two companies involved in real estate, introduced an amendment to a tangentially related septic tank bill, Senate Bill 414. The amendment seeks to increase the requirement for the number of functions a wetland must possess in order to require a permit to develop the land.

Under the law approved by the Indiana House of Representatives and Indiana Senate in 2021, Senate Enrolled Act 389, the state would consider the classification of wetlands depending on whether it supports wildlife or an aquatic habitat or possesses a hydrologic function, and to what extent it does any of the three.

Wetlands with minimal functions are classified as Class I. Wetlands with at least one moderate level function are Class II and those with more than minimal functions or that are at least one of 20 rare wetland types are Class III.

The 2021 bill eliminated the requirement for Class I wetlands permits for development, affecting about 425,000 of the remaining 800,000 acres of wetlands in Indiana.

Miller, who approved the bill’s language in 2021, said the way the law was written has allowed the Indiana Department of Environmental Management to classify wetlands as Class II, although they are considered Class I by developers.

Miller’s amendment would require Class I wetlands to possess all three functions at a “moderate” level in order to be considered Class II. The bill would also eliminate the possibility of Class I or Class II wetlands being elevated to Class III, no matter the level of their functions.

“IDEM restructured the classification system so that it now makes it difficult for what were historically Class I isolated wetlands to still receive that designation,” Miller said when introducing the amendment. “Most isolated wetlands now fall into the more restrictive Class II and Class III wetlands. Applicants get to Class II wetlands many times only by significant arguments, for lack of a better way to say it, and, as a practical matter, Class I wetlands no longer exist.”

The amendment disregards the recommendations offered by the Indiana Wetlands Taskforce in its final report.

The 13-member taskforce was assembled by the 2021 law and included representatives from fields impacted by the state’s wetland policies. A representative from the homebuilding industry was given a taskforce seat but was absent from all meetings. The Indiana Builders Association later provided input for the report.

The task force concluded that the state has not yet seen the full impact of the removal of state protections for wetlands due to multiple factors, like changes in federal regulations, but the change in law has led to the loss of low-quality wetlands that contribute to water storage capacity.

The task force said the loss of those wetlands provided farmers and developers a short-term financial benefit at the cost of long-term flooding issues. Miller’s amendment could result in more wetlands being lost.

“It’s a simple language change that makes all the difference in the world. It will likely result in the reduction of protection of wetlands,” said Jill Hoffman, executive director of the White River Alliance and a member of the Indiana Wetlands Taskforce. “It will become harder to classify some of the state regulated wetlands as Class II or Class III, which are the ones that require mitigation.”

Hoffman said that during their meetings, task force members were told about the importance of wetlands, including their diminishing acreage and significance in flood control, water quality and groundwater recharge. Task force members were also told how development is threatening the few wetlands that remain in the state.

“It pretty much flies in the face of what the task force heard and the amount of time the task force spent in trying to make recommendations that would advance protections of wetlands,” Hoffman said. “We’re not just talking about saving all the bugs and bunnies. It’s about protecting communities, health and welfare and the future. These wetlands and floodplains are an integral part of our water cycle.”

Despite the scientific evidence shared in multiple, five-hour meetings about the importance of state wetlands, the Indiana Builders Association pushed on to attach the change. Some lawmakers called the move an “end run,” saying they had only minutes to review the amendment before it was attached to SB414 at a hearing of the House Committee on Environmental Affairs.

According to Audubon Great Lakes, the state of Indiana ranks fourth among states with the greatest loss of wetlands, with 85% of its original wetlands already gone.

The organization said the loss of wetlands in the state threatens vulnerable birds found in the state, like the Virginia Rail, least bittern, and pied-billed Grebe.

“It’s time for Indiana’s legislators and decision-makers to listen to the concerns of leading experts and residents by strengthening wetlands protections in the state, not weakening them. On behalf of Indiana’s birds, wildlife and 25,000 members in Indiana, Audubon urges the Indiana House to remove the wetland language or oppose this legislation,” said Audubon Great Lakes freshwater policy advisor Brian Vigue.

The bill passed the House Committee on Environmental Affairs by a vote of 8 to 4. The bill will now be considered by the full Indiana House of Representatives next week.

Indiana Builders Attempt ‘End Run’ at Eliminating Remaining State Protections for Wetlands