Isolated wetland means a wetland that is not directly connected to a river or stream. It also means a wetland that does not have protection under U.S. federal law.
Because of the important functions they provide, there are laws protecting wetlands. Some of Indiana’s wetlands are protected under federal law and the rest, the ‘isolated wetlands’, are the state’s responsibility.
A Timeline of Wetland Regulation in Indiana
The U.S. Clean Water Act was passed by Congress with strong bipartisan support. It protects ‘Waters of the U.S.’ or WOTUS, but there has been debate over which wetlands were WOTUS. Each of the recent presidential administrations had its own interpretation. Until recently, about 80% of Indiana’s wetlands were considered WOTUS and had federal protection.
Recognizing the value of the remaining wetlands, the Indiana General Assembly passed the State Regulated Wetlands Law. It was designed to apply to any wetland that was not covered under the federal Clean Water Act. It did not prevent destruction of wetlands. It said that if a construction project needed to destroy a wetland, there needed to be a wetland permit, and the permit required building a replacement wetland to mitigate the loss of function of the one being destroyed.
A bill in the 2021 Indiana legislative session, SEA 389 changed the State Regulated Wetlands Law, significantly reducing protection for Indiana’s isolated wetlands. The first version of the bill would have repealed Indiana’s Wetlands Law entirely. Advocacy by HEC and many partners around the state succeeded in reducing the harm of the original bill and preserving a portion of state wetland protection. However, SB 389 added many exemptions including exempting all Class I wetlands and most Class II wetlands. Only Class III, which are wetlands that are essentially untouched by human activity, retained some protection. SEA 389 also created an Indiana Wetlands Task Force to examine state wetland policy.
SEA 389 went into effect in the summer of 2021. Two years later, in the summer of 2023, the Hoosier Environmental Council wanted to look at the impact of SEA 389. We requested wetland permit data from the Indiana Department of Environmental Management, which is a matter of public record, and found that SEA 389 had eliminated most wetland mitigation. Since the passage of SEA 389, 75% of the wetland acres lost are lost with no mitigation of their lost function[1]. Only 25% of the wetland acres lost are being mitigated with replacement wetlands, so the state is losing wetlands at an accelerated pace.
In fact, in the first 2 years of SEA 389, from summer 2021 to summer 2023, Indiana lost 261 acres of wetlands without mitigation. The EPA estimates that wetlands stores 1 – 1.5 million gallons of water per acre. Therefore, the state lost between 261 and 391 million gallons of water storage in just 2 years.
The Indiana Wetlands Task Force created by SEA 389 issued its final report. That Task Force was made up of representatives from all the different perspectives on wetlands including professionals from the environmental sciences, farming, drainage, and construction. Despite those diverse perspectives, the Task Force reached consensus on its report which included the following statement in its executive summary:
“Indiana is at a point where the cumulative loss of wetlands is having a measurable negative impact on residents, particularly from a water quality and flooding standpoint”
In May of 2023, the U.S. Supreme Court ended the debate over which wetlands were protected under the federal Clean Water Act when it issued a decision in a case called Sackett vs EPA. The Sackett decision significantly reduced federal protection for wetlands. Prior to the decision, approximately 80% of Indiana wetlands fell under federal protection. After the Sackett decision, it was 20% or fewer. The Supreme Court essentially said, ‘The fate of the remaining wetlands is up to the states’. Many states have responded by creating or strengthening wetland protections, including Illinois and Colorado.
State wetland protection was further eroded by the passage of HEA 1383 during the 2024 legislative session that ended March 8. It redefines the wetland classes so that some of the Class III wetlands are moved down to Class II and that means less mitigation is required if they are destroyed. An alternative that would have provided better wetland protection but with faster, easier permits was offered but did not move forward during the 2024 session (see ‘Streamlined Wetland Permit Alternative’ below). Not only did HB 1383 pass, but it was fast-tracked through the legislative session. Fast tracking is a rare move, but it happened this time and 1383 was the first bill signed into law by Governor Holcomb for 2024. It will take effect July 1, 2024. The state wetland protection that was significantly reduced in 2021 was pared down even further in 2024.
During the same legislative session that brought us HEA 1383 which reduces wetland protection, we also had SEA 246, a bill to incentivize wetland preservation. SEA 246 says that if a landowner preserves a wetland of a half-acre or more, they are eligible for a break on their property taxes. SEA 246 doesn’t do anything about the wetland permits or mitigation for wetlands being destroyed by construction, but it allows a tax break for someone who preserves a wetland. The tax break makes sense. It’s a way for society to acknowledge and compensate a landowner for the services that their wetland is providing for the surrounding community by storing stormwater, reducing flooding, and recharging groundwater. SEA 246 passed the Indiana General Assembly with broad bipartisan support and was signed into law by Governor Holcomb Monday, March 11. It will take effect July 1, 2024, after which eligible landowners can apply through the DNR’s Classified Wildlands Program.
The bottom line . . .
Between the Supreme Court’s Sackett decision and the changes in Indiana law in 2021 and 2024, Indiana’s remaining wetlands have lost most of their regulatory protection.
Solutions
Indiana cannot afford to lose more wetlands. Fortunately, state and federal wetland permits aren’t the only way to protect wetlands.
Local governments can protect wetlands in their zoning ordinances. Using Conservation Design, construction projects can avoid natural features like wetlands. There are programs and grants for preserving or restoring wetlands:
The Streamlined Wetland Permit Alternative
Given the loss of wetlands to date and the accelerated loss in recent years, improvements in state wetlands law are essential. The incentive programs and grants can only do a limited amount. We also need mitigation for the wetlands that are lost to construction.
In the summer of 2023, environmental lawyers and wetland scientists teamed up to draft an alternative to Indiana’s wetlands law, referred to as the Streamlined Wetland Permitting Alternative. This alternative takes into account complaints from builders that wetland permits cost them time and are inconsistent. It would simplify and speed up wetland permits and make them more consistent while at the same time protecting more of Indiana’s remaining wetlands.
The streamlined wetland permitting alternative was offered as an amendment to HEA 1383, but rejected during the 2024 legislative session. However, it often takes more than one year for ideas to get through the legislature, so a coalition of Indiana’s environmental and conservation organizations are working to build support for it in anticipation of future legislative session.