SB 389: Indiana Wetlands Need Your Help Again

The Quick Version: “Pass it clean in the second reading”

Contact your IN House Rep before Monday, April 12, 2021 with the message:

“Pass SB389 House Committee version clean (with no new amendments) in the April 12 House Environmental Affairs Committee second reading.”

The Full Explainer:

There is both good news and bad news on the wetlands bill, SB 389.  The good news is that on April 7 the House Environmental Affairs Committee significantly amended the Senate version of SB 389 to protect most wetlands by adopting Amendment 24.  The bad news is that some wetlands will lose protection.

In further good news, Representative Errington will be offering an amendment on the House floor to replace what’s currently in SB 389 with language creating a Wetland Task Force to examine state wetland policy. Sadly, we do not anticipate there will be enough support for this good amendment to pass.

A number of Indiana’s strongest conservation organizations have carefully assessed all of the remaining options to try to improve the bill and also carefully gauged the strength of the wetland de-regulation faction of lawmakers at the Statehouse and concluded that, if the Errington Wetlands Task Force amendment fails, the House committee version is the best wetlands language we will be able to get in the 2021 legislative session.

Why would we support a bill that is still bad for wetlands?

Well we don’t, but if the House Environmental Affairs Committee version does not pass, we will likely get something much, much worse.  Many legislators (in both the House and Senate) are in favor of seriously weakening state protections of wetlands. At the next step in the process (second reading), either the Senate passed version of SB 389 bill, which repeals the wetlands law, or an amendment like #19, which is very close to a repeal, will become the final bill.  Please see the table below for a detailed comparison of the Senate version, Amendment 19, and the House committee version.

Therefore, the Indiana Wildlife Federation takes the following positions and urges our supporters to contact their state representatives with the following four requests:

1.) Support Representative Errington’s amendment to replace SB 389 with a Wetland Task Force.

2.) If the Wetland Task Force amendment fails, support the House Environmental Committee version of SB 389.  The committee version, but no further! Pass it clean, with no amendments in the second reading.

3.) Oppose Amendment 19 to SB 389 or any other anti-wetlands floor amendments. Pass it clean, with no amendments in second reading.

4.) Oppose the Senate version of SB 389 (full repeal).

 

Reaching your lawmakers about the above four calls-to-action is crucial to making sure that the House Environmental Committee’s version of SB 389 survives a House floor vote — and the far more damaging version, Amendment 19 (or its equivalent) — does not replace it.  You can reach your lawmakers by going to bitly.com/INLegis.

Call to Action: Oppose SB389 – Repeal of wetlands protections.

A swiftly-moving (updated) disaster

[Updated Mon. Mar 22, 2021] – Over the weekend, the House Environmental Affairs committee decided against hearing Amendment 11 due to pushback (keep calling/emailing/tagging!) and that they would be working on Amendment 12. It was posted late on Sunday with less than 12 hours to review before the hearing.  Here is Amendment 12.

While there has not been adequate time to review the impacts of the amendment, it is still clearly going to cause major losses to Indiana wetlands. We recommend the same action of reaching out to your state legislators to “Oppose SB389 as a dangerous bill for water quality, wildlife, habitats, and flooding. [End update]

Although Indiana legislators promised to allow a full week for organizations like IWF the time to understand and react to a proposed amendment to SB389 (a full repeal of protections for all state regulated wetlands in Indiana), we now only have the weekend. Despite weeks of negotiation by IDEM and numerous legislators that promised there would be a reasonable compromise; the House Environmental Affairs Committee is going to take up an amendment to the bill that will gut Indiana’s wetlands law. They will meet Monday, March 22, at 10:30 AM.

What’s in Amendment 11?

(SEE FULL AMENDMENT LANGUAGE) | (SEE FULL DETAIL IN BILL TRACKER)

Amendment 11 will lead to loss of much of Indiana’s remaining wetlands. It allows destruction of:

• all Class I wetlands
• up to one acre of Class II or Class III if they are within the borders of a municipality.
• up to 1/2 acre of Class II and 1/4 acre of Class III outside municipalities
• wetlands that are on cropland sold for development
• ephemeral streams

It also greatly reduces the wetland mitigation ratios and it increases the amount of wetland that can be destroyed when there are several wetlands involved in the same development project. Here is a table to illustrate how Amendment 11 weakens existing wetlands protections:

Amendment 11  Existing law 
Exempts all Class I wetlands Exempts ½ acre
Exempts ½ acre of Class II Exempts ¼ acre
Exempts ¼ acre of Class III No exemption
Exempts 1 acre of Class II or III within a municipality No exemption
Enlarges cumulative exemption when there is >1 wetland on a property
Exempts dredge and fill activities in ephemeral streams
Allows wetland destruction for development on cropland that was farmed any time in the last 5 years
Reduces mitigation ratios
IDEM’s time to issue wetland permit 90 days 120 days

If SB 389 passes in its current form or with Amendment 11, Indiana will pay a high price in increased flooding, lost groundwater recharge, lost water purification, and loss of endangered and threatened species. Please do all you can before Monday to tell your legislators, especially members on the House Environmental Affairs Committee to save Indiana’s remaining wetlands by opposing SB 389 and opposing Amendment 11.

You can contact your legislator by finding them here.

You can also send a pre-drafted email to your legislator by using this form graciously created for us by the National Wildlife Federation Water Action Team.

Wetland Protection in Indiana: The Way Forward

The second event will be hosted by the Hoosier Environmental Council, White River Alliance, and the Indiana Land Protection Alliance. Speakers from the Indiana Department of Environmental Management, Army Corps of Engineers, and environmental consulting will use a case study project to illustrate how federal and state laws work to protect isolated wetland functions and conclude with possible changes to these policies being discussed in the current Indiana legislative session.

Please see the attached announcement or this website for the list of speakers and details, as well as a link to register.

The Value of All Wetlands: Indiana Researchers Weigh In

Scientists from universities across Indiana will share research on the value of isolated wetlands, which are vital to the health of Indiana’s ecology, water and people. These unique and important ecosystems are currently threatened by Senate Bill 389, which would repeal critical wetland protections in Indiana. Dr. Sara McMillan will moderate a forum with speakers from Purdue University, Indiana University, Notre Dame and IUPUI about many ecosystem functions that isolated wetlands provide including: flood storage, wildlife habitat, water quality improvements, and carbon storage. Use link to register.

Administration Continues Attacks on Clean Water Act With New Rule

“Since the Administration refuses to protect our waters, we have no choice but to ask the courts to require the EPA to follow the law.”

Contact: Lacey McCormick, National Wildlife Federation, McCormick@NWF.org, 512-610-7765

WASHINGTON (January 23, 2020) – The EPA is set to release a final rule reducing the scope of waters protected from pollution, destruction, and degradation by the Clean Water Act. This rule would leave streams – and even some rivers – federally unprotected that have been covered since the law was first passed in 1972. It would also remove protections for approximately half of the nation’s wetlands.

“At a time when communities across the country are desperately trying to clean up polluted waters and one-third of wildlife species are at a heightened risk of extinction, this misguided rule places our drinking water, our wildlife and our nation’s way of life further at risk,” said Collin O’Mara, president and CEO of the National Wildlife Federation.

“Since the Administration refuses to protect our waters, we have no choice but to ask the courts to require the EPA to follow the law. We simply cannot afford to lose protections for half of our remaining wetlands, nor can we take any unnecessary chances with our drinking water.”

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The National Wildlife Federation is America’s largest conservation organization uniting all Americans to ensure wildlife thrive in a rapidly-changing world. Follow us on FacebookTwitter, and Instagram.

Docket Number NRCS-2018-0010; Comments on the NRCS Interim Rule on Highly Erodible Land and Wetland Conservation (7 CFR Part 12)

February 5, 2019

Public Comments Processing
Attention: National Leader for Wetland and Highly Erodible Land Conservation
USDA, Natural Resources Conservation Service
1400 Independence Avenue SW,
Washington, DC 20250

Re: Docket Number NRCS-2018-0010; Comments on the NRCS Interim Rule on Highly Erodible Land and Wetland Conservation (7 CFR Part 12)

The undersigned organizations, representing conservation, water, and agriculture organizations, write to express our concerns about the impacts of the interim final rule on wetland determinations. In particular, we are concerned that this rule promotes the exclusion of seasonal wetlands from the Farm Bill’s wetland conservation compliance safeguards, encouraging additional wetland drainage in the Prairie Pothole Region and beyond. Given these concerns, we urge USDA to withdraw the interim final rule and instead propose a rule that promotes accurate wetland determinations that include all seasonal wetlands and one that is subject to robust environmental review and public comment.

Over its 30 year history, conservation compliance has saved billions of tons of soil from erosion and protected millions of wetland acres, resulting in healthier soil, better wildlife habitat, and cleaner rivers, lakes, and streams. It is critical that any actions that NRCS takes related to wetland conservation compliance are done in a manner that ensures that the legacy of conservation compliance is not diminished. Unfortunately, this interim final rule undermines protections for seasonal wetlands, encouraging wetland drainage and ignores the letter and spirit of the Farm Bill wetland conservation compliance provisions. Our major concerns are that:

? The rule systematically excludes seasonal wetlands from wetland maps that form the basis for producer compliance. Of particular concern is the rule’s certification of old (pre-1996) wetland determinations that have consistently excluded seasonal wetlands, have been shown to underidentify wetlands by as much as 75%, and that were for years considered too inaccurate to be used.

? The rule relies on aerial imagery from the hottest time of the year (July/August), when many seasonal wetlands have dried out. Seasonal wetlands fill early in the spring, which is when they provide their most important flood storage and wildlife benefits, particularly for migrating and nesting waterfowl. For example, an analysis of three decades worth of U.S. Fish and Wildlife Service waterfowl and pond surveys in eastern South Dakota, the heart of the Prairie Pothole region, found that the number of wetland basins containing water that show up in July surveys was 73% lower than in May surveys. Any NRCS wetland determination rule should account for the use of summer imagery and promote the use of and investments in accurate spring imagery.

? The rule relies on precipitation data from a historically dry period (1971-2000), further limiting the number and size of seasonal wetlands subject to the wetland conservation compliance requirements. Coupled with the mid-summer imagery, this focus on drier rather than wetter conditions significantly skews wetland maps towards excluding seasonal wetlands. Even more concerning is that there has been no scientific analysis of the impacts of using this outdated information.

? There has been inadequate analysis of the environmental impacts of the rule, including the potential for impacts on endangered species.

We thank you for the opportunity to provide input into this rulemaking, and for your consideration of the above comments. Given these concerns, we urge USDA to withdraw the interim final rule and instead propose a rule that promotes accurate wetland determinations that include all seasonal wetlands and one that is subject to robust environmental review and public comment.

Signed,
American Bird Conservancy
Apalachicola Riverkeeper
Audubon Chapter of Minneapolis
Bird Conservation Network
Center for a Sustainable Coast
Center for Food Safety
Chesapeake Wildlife Heritage
Chicago Audubon Society
Citizens Committee to Complete the Refuge
Clean River Alliance
Clean Water Action Committee on the Middle Fork
Conservation Coalition of Oklahoma
Defenders of Wildlife
Delta Chapter, Sierra Club (Louisiana)
Earthjustice
ECOAN
Endangered Habitats League
Environmental Law & Policy Center
Environmental Working Group
Florida Wildlife Federation
Food & Water Watch
Friends of Black Bayou, Inc.
Friends of Blackwater, Inc.
Friends of the Central Sands
Friends of the Santa Clara River
Georgia Wildlife Federation
Gulf Restoration Network
Illinois Council of Trout Unlimited
Illinois Division of the Izaak Walton League of America
Illinois Ornithological Society (IOS)
Indiana Sportsmen’s Roundtable
Indiana Wildlife Federation
Iowa Audubon
Iowa Natural Heritage Foundation
Izaak Walton League of America
Izaak Walton League of America – Indiana Division
Izaak Walton League of America – National Great Lakes Committee
Johns Hopkins Center for a Livable Future
Kansas Wildlife Federation
Kentucky Waterways Alliance
Lake Champlain Committee
Lake Erie Waterkeeper
Los Angeles Audubon Society
Louisiana Audubon Council
Maryland Ornithological Society
Minnesota Conservation Federation
Mississippi River Collaborative
Missouri Coalition for the Environment
Monongalia County, WV, Izaak Walton League of America
Montana Wildlife Federation
National Audubon Society
National Latino Farmers & Ranchers
National Sustainable Agriculture Coalition
National Wildlife Federation
Natural Resources Defense Council
North Dakota Wildlife Federation
NYC H20
Ohio River Foundation
Ohio Environmental Council
Prairie Rivers Network
River Network
Rural Coalition
Salem Audubon Society
Sierra Club
South Dakota Wildlife Federation
Southern Maryland Audubon Society
Southwestern Wisconsin Chapter, Izaak Walton League of America
Sycamore Audubon Society
Tennessee Clean Water Network
Tennessee Ornithological Society
The Institute for Agriculture and Trade Policy
The River Project
The Wetlands Initiative
Union of Concerned Scientists
Virginia Conservation Network
Waterkeeper Alliance
West Virginia Division, Izaak Walton League of America
Wild Farm Alliance
WildEarth Guardians
Winyah Rivers Alliance
Wisconsin Division, Izaak Walton League of America
World Wildlife Fund