A Republican congressman in Ohio has proposed a bill in the U.S. House of Representatives that would formalize the end of federal protection for small streams and wetlands nationwide.
Rep. Bob Latta of Bowling Green, probably without irony, dubbed it the “Withstanding Attempts to Encroach on Our Resources (WATER) Act.” The bill aims to codify a Trump Administration rollback of Obama-era rules that had protected small waterways under the Clean Water Act. If this is accomplished, reversing it would take another act of Congress.
In a press release of April 19, Latta called the Obama protections “overreach of federal regulators” into the rights of private property owners.
Indiana just passed a law that eliminates state protection of these same wetlands. Critics say up to 80 percent of the state’s wetlands now can be dredged, filled or discharged into without oversight. The remaining 20 percent are under federal protection. Latta’s bill would not change that.
Wetlands, some of Northwest Indiana’s most scenic territories, are targeted in a highly partisan bill that would strip them of state protection from pollution or destruction.
Senate Bill 389, presented by 26 Republicans, aims to delete the state law that covers wetlands which aren’t protected under the federal Clean Water Act. Different sources say 60 percent to 80 percent of the state’s wetlands rely on state protection.
Although wetlands cover just 3.5 percent of Indiana, they provide critical habitat for thousands of species of plants and birds, including geese and ducks. Iconic endangered species such as the whooping crane, the bald eagle and the red wolf also depend on wetlands, according to the United States Department of Agriculture.
The economic impact on the region of its swamps, marshes and bogs is in the multi-millions of dollars annually. More than 98 million people hunt, fish, birdwatch, hike or photograph wildlife. Americans spend $59.5 billion annually on these activities, according to Indiana’s Department of Environmental Management (IDEM).
In addition, wetlands act as filters that improve the quality of drinking water and as sponges that soak up rain to prevent flooding.
“Wetlands also recharge our underground aquifers,” says IDEM spokesman Barry Sneed. “Over 70% of Indiana residents rely on ground water for part or all of their drinking water needs. Wetland reductions could impact the amount of water available in municipal and residential drinking water wells.”
“Because isolated wetlands are so critical to drinking water supplies, they are best protected within state law,” Kathy Luther, director of environmental programs for the Northern Indiana Regional Planning Commission, wrote in an email. “These wetlands are critical to recharge the groundwater that feeds springs and fills the aquifers used for irrigation wells and drinking water supplies in rural communities.”
These functions of wetlands were not well understood until the mid-twentieth century.
By 2011, 89 percent of the region’s wetlands had been lost since settlement in the 1800s. Most were dredged, filled or drained for farming or development. Only five other states (California, Iowa, Missouri, Illinois and Ohio) have lost that much of their wetlands.
The Indiana law targeted for elimination requires a state permit before dredging, filling, dumping, bulldozing or discharging into wetlands. It also requires compensatory mitigation for any wetlands affected, either by creating new wetlands or by paying a fee to be used for that purpose. Finally, it provides penalties for violations of the law and lists exemptions to the law.
Proponents of the bill to overturn that law call it an example of regulatory overreach, an infringement on private property rights and an economic burden or hindrance to development. It is supported by the Indiana Builders Association, the Indiana Farm Bureau, the Indiana Manufacturers Association, Associated Builders & Contractors and Reliable Energy Inc.
“These costly, over burdensome regulations hamper our members’ ability to provide safe and achievable housing to Hoosiers looking to own a home and at a time when the cost of housing continues to rise due to a myriad of factors,” CEO Rick Wajda of the Indiana Builders Association wrote in an email.
Indiana Senator Karen Tallian, a Democrat from Ogden Dunes, recalls when she was a member of the Porter County Planning Commission, developers “were always trying to squeeze out like three more lots. It’s not about affordable housing. It’s about maximizing profit.”
The move to delete the law follows a narrowing of federal protection under the Clean Water Act taken by the Trump Administration, against the advice of Environmental Protection Agency scientists. Under the new rule, only wetlands adjacent to waters such as lakes, creeks and rivers are protected.
“This rule effectively guts the Clean Water Act by permanently removing protections for approximately half the nation’s streams and wetlands,” Jim Murphy, director of legal advocacy for the National Wildlife Federation, said in an interview published on April 30, 2020 in Coastal Review Online of North Carolina.
In Indiana, about 20 percent of the state’s wetlands fall under the Clean Water Act. The rest, called isolated wetlands because they stand alone, get no federal protection anymore.
Calling wetlands that lack a direct connection to another body of water “isolated” does not imply they are unconnected to anything. Their impact is far reaching, even for those that are only seasonal.
JUST WHAT THE HECK IS A WETLAND?
Defining a wetland is like trying to pin down a moving target. Is it a perennially wet spot in a farm field? How big does it need to be? How wet or dry? Definitions vary by influences as diverse as politics, Supreme Court decisions, botany and philosophy. This causes frequent tinkering with or differing interpretations of laws and regulations, leading to confusion and frustration among farmers who want to remove a wetland to increase cropland or builders hoping to enlarge a development site.
“Which wetlands are state versus federal is a manmade distinction that changes with changing leadership in the White House,” said Dr. Indra Frank, environmental health director of the Hoosier Environmental Council. “Fortunately, Indiana’s current wetlands law was written to deal with the repeated changes at the federal level. It simply says that any wetland not federally protected is a state wetland.”
IDEM, which oversees wetlands regulation through its Isolated Wetlands Program (IWP), defines them thus: “areas that are inundated or saturated by surface or ground water at a frequency and duration sufficient to support, and that under normal circumstances do support, a prevalence of vegetation typically adapted for life in saturated soil conditions. Wetlands generally include: (1) swamps; (2) marshes; (3) bogs; and (4) similar areas.”
IDEM says defining a wetland and determining its boundaries require the services of a qualified wetlands consultant. Randy Jones of AquaTerra Consulting Inc. is one with twenty years of experience who also has worked as a wetland regulator at IDEM.
“In general, the vast majority of my clients have accepted wetland regulations … as a cost of doing business,” Jones wrote in an email. “As with any environmental regulation developed with the interest of the public at-large in mind, it does have costs for a subset of the public engaged in construction activities where wetlands may be present; typically, a financial interest is present for this subset of people. The IWP was designed to both protect Indiana’s isolated wetlands, and to provide a mechanism for builders/developers to accomplish their goals, by ensuring that practicable steps to minimize wetland impacts have been fully considered, and by compensating the public for loss of wetland functions resulting from their personal project. This is a solid public policy that balances the needs of the many with the needs of the few.”
In 2020, IDEM took 63 actions against violators of regulations pertaining to drinking water or wastewater, and one for wetlands. Inspectors saw unpermitted dredging in one wetland and the dumping of dredged material into an adjacent wetland in Dekalb County. The landowner agreed to apply for a permit, submit mitigation plans for approval, buy .69 acres worth of credit in the wetlands Mitigation Bank and pay a fine of $3,500.
Without the state law, “Approximately 80 percent of Indiana’s wetlands could be filled and/or drained without permits or mitigation,” said Sneed of IDEM.
Dr. Henry Chandler Cowles, a professor and botanist at the University of Chicago, led students on field trips to the Indiana dunes and their wetlands. Based on that fieldwork, his publication in 1899 on plant succession helped launch the science of ecology. The diversity of plant life here – from orchids to cacti – makes it a rare ecosystem.
But being rare is no protection in itself. In 1997, the rate of wetland loss yearly in Indiana was 1 to 3 percent, according to the United States Geological Survey.
DÉJÀ VU ALL OVER AGAIN
In 2001, a Supreme Court decision created a gap that left one-third of Indiana’s wetlands without federal protection. In response, former Indiana State Senator Beverly Gard sponsored the current law, which passed in 2003. It restored state protection to those wetlands that had lost it at the federal level.
Fast forward to 2020. At the International Builders Show in Las Vegas, two Trump Administration officials announced a new EPA rule that narrowed the definition of waters to be protected under the Clean Water Act, which they described as “federal overreach.” The new rule was based on a 2006 Supreme Court decision (Rapanos v. United States) authored by Antonin Scalia, who wrote that waters to be protected include “those relatively permanent, standing or continuously flowing bodies of water…described in ordinary parlance as ‘streams, oceans, rivers and lakes.’
He specifically excluded from the definition water that is present intermittently or ephemerally. Unfortunately, this describes many wetlands, which sometimes have seasonal dry periods. The state law covers those anyway.
Of the 2,700 acres in the Shirley Heinze Land Trust, about 1,000 are wetlands. “Federal jurisdiction is over some wetlands,” said Eric Bird, Heinze stewarship director. “As a land trust, we believe that all wetlands and natural areas are important and should be carefully preserved and protected.”
Environmental groups have filed suit to stop the new rule. These ranged from the Connecticut River Conservancy to the New Mexico Wilderness Alliance. “An EPA preliminary analysis of the proposed rule indicated it could exclude approximately 51 percent of the roughly 110 million acres of wetlands in the continental United States…an area larger than California,” the.Natural Resources Defense Council said in announcing the lawsuit.
ARE THEY SERIOUS?
Gard said in her editorial that a comprehensive study of wetlands should be conducted over the summer before “blindly moving forward with ill-conceived legislation.”
Such a study was done before the 2003 law was passed.
Jones said that by tweaking requirements in the exemptions section, both developers and the public could benefit. One change could allow developers to skip permitting small, low-quality wetlands while concentrating on saving larger, higher-quality wetlands.
“There are several other small changes that can be made to the existing rule, to allow for better and more equitable implementation, without sacrificing all wetland protections. It would be a shame to back-track on Indiana’s leadership and to destroy a program that helps all Hoosiers, particularly, if there is a quick-fix available to reasonably meet the needs of all parties,” he said.
“We are concerned,” wrote Paul Labovitz, superintendent of the Indiana Dunes National Park. Wetlands within the park are protected by the National Park Service, but that doesn’t make them invulnerable.
“We receive water from outside the park, and less protected wetlands threaten to move poorer quality water through the park and into Lake Michigan, and that should terrify everyone,” he wrote. “The East Branch of the Calumet River, Sand Creek, Salt Creek, Deep River and the Grand Calumet River are all rivers and streams already in trouble. Lessening protection is the wrong direction to go. The proposed change is a very bad idea.”
Without a permitting program, said Janette Brimmer, an attorney for EarthJustic.org, “Citizens and groups dedicated to protecting waters and wetlands in their communities won’t even get notice or know about potential damage until the wetland or water is actually being dug up or filled in or drained.”
Tallian said there’s been scuttlebutt among Republicans that the bill is meant as a shot across the bow at IDEM, and won’t pass as currently written. “But it passed (the Senate) like a fast moving locomotive,” she said.
“It’s puzzling,” said Paul Botts, president and executive director of the nonprofit Wetlands Initiative, based in Chicago. “What was broken here, what needed fixing? It was a very balanced law.”
As of March 17, it was before the House Environmental Affairs Committee. A hearing is scheduled for 10:30 a.m. on March 22nd.
Wrote Jones, the former IDEM regulator turned consultant, “I hope lawmakers will explore ways to re-write (it) to make the existing rule much more palatable for developers, while preserving the benefits of wetlands for all Hoosiers.”
WHERE TO SEE WETLANDS IN THE REGION
Dunes Nature Preserve, Indiana Dunes National Park, Chesterton
Springfield Fen Nature Preserve, La Porte county
Cowles Bog, Pines
Great Marsh Trail, Indiana Dunes National Park, Beverly Shores
Paul H. Douglas Trail, Miller
Tolleston Dunes, Ogden Dunes
Grand Kankakee Marsh, Hebron
Heron Rookery Trail, Michigan City
Dunes Kankakee Trail, Chesterton
Erie Lackawanna Trail, Crown Point to Hammond
Shirley Heinze Land Trust Nature Preserves:
Gordon and Faith Greiner Nature Preserve, Hobart
Ivanhoe South Nature Preserve, Gary
John Merle Coulter Nature Preserve, Portage
Keith Richard Walner Nature Preserve, Chesterton
Ambler Flatwoods Nature Preserve, Michigan City
Lydick Bog Nature Preserve, South Bend.
Groups opposing SB 389
Indiana Department of Environmental Management Indiana Department of Natural Resources Ecological Restoration Business Association Indiana Conservation Officers FOP Lodge #201 Conservation Law Center Hoosier Environmental Council Indiana Wildlife Federation White River Alliance Indiana Land Protection Alliance Little River Wetlands Project Central Indiana Land Trust Red-Tail Land Conservancy Joe River Basin Commission Save Maumee The Nature Conservancy Indiana Association of Soil and Water Conservation Districts Sierra Club Hoosier Chapter Ducks Unlimited Pheasants Forever Quail Unlimited Indiana Sportsman’s Roundtable Indiana Chapter Backcountry Hunters and Anglers Save the Dunes Friends of White River Indiana Izaak Walton League Indiana Chapter of the American Society of Landscape Architects Indiana Conservation Alliance Congressional Sportsmen’s Foundation National Marine Manufacturers Association Indiana Forest Alliance League of Women Voters of Indiana National Parks Conservation Association Indiana State Trappers Association Indiana Bowhunters Association Indiana White-Tail Deer Herd Management Trout Unlimited International Crane Foundation Delta Waterfowl
Indiana Native Plant Society Indiana MS4 Partnership The Watershed Foundation Indiana Catholic Conference Indiana Lakes Management Society Sunrise Indianapolis Marion County Soil and Water District Lake Maxinkuckee Environmental Fund Indiana Water Monitoring Council Indiana Association for Floodplain and Stormwater Management White Violet Center for Eco-justice Wabash River Enhancement Corporation Indiana Audubon Society Just Transition Northwest Indiana Wawasee Area Conservancy Foundation, Inc. Open Space and Agricultural Alliance Indiana Parks Alliance Hoosier Chapter of Soil and Water Conservation Society Oak Heritage Conservancy Shirley Heinze Land Trust Southwestern Indiana Citizens for Quality of Life Clear Lake Township Land Conservancy Woodland Savanna Land Conservancy Ouabache Land Conservancy Wabash Valley Progressives, Inc Metropolitan Planning Council Northwest Indiana Paddling Association Valley Watch Americus Area Community Coalition Izaak Walton League, Porter County Chapter Valparaiso Lakes Area Conservancy District Save Whiting and Neighbors Amos Butler Audubon Society Citizens Action Coalition The Indiana Chapter of the American Fisheries Society Ruffed Grouse Society & American Woodcock Society Jasper Rifle and Gun Club Indiana Deer Hunters Association