Despite an outpouring of calls to veto SB 229, Governor Holcomb signed the bill into law on March 25, 2020.
Background: 24% of Indiana’s land used to be wetlands. Most of our wetlands were drained in the 1800’s to make way for farms and towns, so they are now closer to 3%. Wetlands provide water purification, flood reduction, and wildlife habitat. In 2003 the legislature recognized the value of preserving the remaining wetlands and wrote Indiana’s Isolated Wetlands Law.
SEA 229 creates a new exemption in that law for drain reconstruction. The legal definition of ‘drain reconstruction’ is “extensive repairs or changes” including widening, deepening, or “making any major change” – in other words, large-scale work that could destroy wetlands. Current law doesn’t prohibit reconstruction, it just requires projects to go through the permitting process to preserve as much wetland as possible, and replace what can’t be preserved.
According to Purdue scientists, Indiana now receives 6.5 inches more precipitation per year than it did when data were first recorded in the 1890’s, so we need the water storage function of our wetlands more than ever.
Despite having his administration’s environmental agency (IDEM) openly oppose SEA 229 during the legislative session, today Governor Holcomb signed into law a bill that needlessly deregulates protection of the state’s wetlands. SEA 229 will exempt reconstruction of drains from the Indiana Isolated Wetlands Law. According to the Drainage Code, reconstruction of drains includes extensive work like enlarging, widening, and “making any major change”; such land-altering changes will damage or destroy any wetlands that are involved. SEA 229 has undefined terms that could lead to litigation. It exempts drain reconstruction as long as the reconstruction “does not substantially change the characteristics of the drain”. The phrase ‘substantially change’ is vague and subjective. The term ‘characteristics’ is not defined in the law. It is not certain whether ‘characteristics’ refers to the length, width, depth of the drain, the materials used to construct it, or to some other feature. If the state agency challenges a drain reconstruction project for making what it considers a substantial change, the case could well wind up in court where a judge would have to decide on the definition of the terms ‘substantially change’ and ‘characteristics’. The law also leads to increased federal involvement. SEA 229 creates an exemption that applies to state protected wetlands, but not to federally regulated wetlands. To use the exemption in SEA 229, surveyors will need determinations from the US Army Corps of Engineers as to whether wetlands are state or federal. The Governor’s action on SEA 229 was opposed by many. Dozens of organizations and hundreds of individuals around the state urged the Governor to veto SEA 229, and though not in the majority, a total 46 of the state’s legislators, including members of both parties, voted against it. “Indiana has less than 15% of its original wetlands left. In 2003, the Indiana legislature recognized the value of preserving the remaining wetlands and wrote the Isolated Wetlands Law. We are sorry to see this new exemption in that law because it will inevitably injure more wetlands that provide absolutely vital water purification, flood protection, and wildlife habitat. With our bipartisan legislative allies and many partners, we will work to find different means of protecting our precious remaining wetlands.” – Indra Frank, Director of Environmental Health and Water Policy, Hoosier Environmental Council.
Learn more about HEC’s Drinking Water, River & Lake Protection work.