Oppose SB389 – An Urgent Call To Action

We are so thankful to the many IWF members and others who have been so active in their opposition to this concerning legislation.  Unfortunately, this bill is being pushed through the legislative process very rapidly and so we are reaching out to you again with an urgent call-to-action.  Please consider contacting your representative as soon as possible, asking them to oppose SB 389.

Indiana Senate Bill 389 repeals the law requiring a permit from the Department of Environmental Management for wetland activity in a state-regulated wetland, removing protections for isolated wetlands in Indiana.

On Thursday, 1/28/21, SB 389 went through a second reading in the State Senate. A proposed amendment (which had bipartisan support) to send the issue to an interim study committee was defeated by a vote of 19 to 29. The study committee would have enabled some of the many consequences of SB389 to have been properly considered.  With this amendment defeated, the bill now moves on unaltered, and it is possible that there may be a vote on whether or not to pass SB 389 as soon as Monday, February 1st. This rush to push the bill through so quickly and without careful consideration of the impacts is a real cause for concern.

As Indra Frank, Director of Environmental Health and Water Policy for the Hoosier Environmental Council, wrote in her testimony to the Senate Environmental Affairs Committee: “Many of the repercussions of SB 389 are uncertain. We don’t have a solid estimate of the number of acres covered by the Isolated Wetlands Law, so we don’t know for certain how many acres of wetlands would be in jeopardy. We know that wetlands absorb excess stormwater, but we don’t know how much additional flooding will result from the loss of this law or where that flooding will be. We know that wetlands recharge groundwater, but we don’t know how much groundwater recharge we will lose if this passes or where that loss will be.…This bill has raised a plethora of issues….It would be better to sort through these issues more thoroughly and working on solutions rather than throwing out the entire wetlands law. Passing SB 389 and eliminating the wetlands law may make life easier for developers, but it will create heavy costs for the rest of society and for the other species with whom we share this land.”

Why are wetlands so important?

Wetlands are critically important.  They are among the world’s most productive ecosystems, comparable to rain forests and coral reefs. In the USA as a whole, nearly 35 percent of all rare and endangered animal species depend on wetlands for survival, although wetlands cover only around 5 percent of the land.  In Indiana, more than 60 wetland-dependent animal species are of special conservation concern, while more than 120 species of wetland plants in Indiana are considered to be endangered, threatened, or rare. The Indiana Native Plant Society estimates that over one third of Indiana’s flora, an estimated 888 species, grow in wetlands, showing the critical importance of this habitat.

Wetlands also play key roles in the hydrologic and biogeochemical cycles, providing incredibly valuable ecosystem services which directly impact human health and economics.  They play a major role in maintaining water quality, removing or retaining excess organic and inorganic nutrients (for example from septic system runoff and fertilizers), trapping pollutants (including some heavy metals), and filtering sediments – wetlands with emergent plants can remove up to 95% of the sediments from floodwaters.

Wetlands also play a vital role in floodwater storage, protecting human health and safety and reducing costs associated with flood damage and stormwater management, a sentiment excellently summed up by Indra Frank of HEC, “All in all, wetlands are the most cost effective stormwater management infrastructure there is”.

This crucially important service will become increasingly valuable – since 1895, average annual precipitation in Indiana has increased by about 15%; this trend is projected to continue, while heavy precipitation events are expected to intensify as temperatures rise as a result of climate change.  Additionally, wetlands play a role in atmospheric maintenance and help to moderate global climatic conditions, while clearing, draining and filling wetlands releases carbon dioxide.

Ok, so Indiana’s wetlands are important…but aren’t they still protected under Federal law?

Unfortunately, legislation regarding wetland protection has not been straightforward, and correspondence with Representatives appears to indicate that there is some confusion on this issue even among those who will be entrusted with voting on SB389.

Though wetlands in the U.S. have historically been covered by the 1972 Clean Water Act (CWA), a lack of clarity in the language used in this Act, legal disagreements over exactly which waters were defined as ‘waters of the United States’, and subsequent Supreme Court decisions have put vital wetland ecosystems at significant risk.

In response to the lack of clarity about the scope of the CWA and following concerns after Supreme Court rulings in 2001 and 2006 weakened or withdrew federal protection for millions of acres of wetlands, the EPA and the Army Corps of Engineers put forward the Clean Water Rule (also called the Waters of the United States Rule) in 2015. This rule extended existing federal protections of large bodies of water to smaller bodies that flow into them (those with a ‘significant nexus’ to navigable waters), including rivers, small waterways, intermittent streams and wetlands.  However, with court challenges from a number of states and several industry groups, the rule was stayed nationwide by the U.S. Court of Appeals.  In February, 2017, President Trump issued an Executive Order directing the EPA and the Department of the Army to review and rescind or revise the 2015 Rule.  The 2015 Rule was repealed by the Trump administration in 2019, and in 2020 it was replaced with the Navigable Waters Protection Rule.

The Navigable Waters Protection Rule has stripped more than half of US wetlands of Federal protections and loosened regulation further.  While major water bodies remain protected, there is no longer a Federal requirement for a permit to drain or discharge pollution into ephemeral streams and wetlands or ‘isolated’ wetlands – those that don’t have a regular surface connection to a larger, protected water body.  According to the Audubon Society, the water bodies no longer protected include some of the most important bird habitat on the continent.  Many of these ephemeral and isolated wetlands play critical roles in watersheds and in habitat provision.  ‘Isolated’ is also a bit of misleading term – while these wetlands may not have clear surface connections, they are often linked to other water bodies through the water table.

In Indiana, the Department of Environmental Management (IDEM) estimates that more than one-third of the state’s 800,000 acres of wetlands may be classified as isolated, including globally rare dune and swale wetland complexes.

Thankfully, many of these isolated wetlands in Indiana have, until now at least, still been afforded protection at the State level.  Isolated wetlands are considered Waters of the State and are regulated under Indiana’s State Isolated Wetlands law (Indiana Code 13-18-22), and impacts to isolated wetlands currently require State Isolated Wetland Permits from IDEM.  There are many exemptions to the Isolated Wetland Law (such as for farming, or activities that will impact smaller areas of wetlands), but the Law has helped to ensure that critical wetland habitats have some protection. If passed, SB389 will repeal Indiana’s Isolated Wetland Law.

SB389, if voted through, will completely repeal Indiana’s Isolated Wetland Law.  If SB389 is passed, critical isolated wetland habitats in Indiana will have neither Federal nor State protection.

Indiana has lost over 85% or 4.7 million acres of the approximately 5.6 million acres of wetlands that existed in the state c.1780. Among the 50 states, Indiana ranks 4th (tied with Missouri) in proportion of wetland acreage lost.  The isolated wetlands that this bill threatens are critically important habitats that should remain protected.

“The bill repeals wetlands protections that currently safeguard these critical habitats……We rarely oppose legislation or advocate in the public sphere, and we do not oppose smart development in areas that are not environmentally sensitive. This bill, however, could be so detrimental to water quality and habitat that we feel we must take a stand”. Cliff Chapman, Executive Director, CILTI (Central Indiana Land Trust).

Threatened Indiana Wildlife and Plant Species Dependent on Isolated and Ephemeral Wetlands 

Platanthera leucophaea, Eastern prairie fringed orchid / prairie white-fringed orchid.  Found in sedge meadows, marsh edges and bogs, this delicate plant is classified as Globally imperiled, Federally Threatened and State Critically Imperiled.

Platanthera dilatata, Leafy white bog-orchid.  Thought to best extirpated in the State.

Carex lupuliformis, False hop sedge.  Found in floodplain forests, swamps and at the margins of vernal pools.   Classified as Imperiled in the State.

Ambystoma talpoideum, Mole salamander Species. A burrowing species inhabiting lowland forest, valleys, and floodplains with temporary or permanent wetlands. Classified as State Endangered.

Lithobates [Rana] areolatus, Crawfish frog.  In Indiana, crawfish frogs breed in shallow, seasonal pools in grasslands, pastures, and old fields. Due to drastic population declines and an overall range reduction, classified as State Endangered and Near Threatened globally.

Please consider contacting your elected representative today and ask them to oppose SB 389.