In bill gutting wetland protection, lawmakers agreed to a study. It found new law harmful.

Despite strong opposition from the state's own environmental and natural resource experts, and concerns from the Governor's Office, lawmakers pushed through a bill last year gutting protections for Indiana's dwindling wetlands.

The legislation was a move that benefitted powerful business, agriculture and construction interests. Still, legislators threw opponents a bone.

The bill also created a task force to evaluate the status of wetlands, which experts say are a critical piece of the state's ecosystem.

The rush to eliminate protections begged the question: Why, absent an emergency — which did not exist — would the legislature not put the proposed changes on hold until the topic could be studied?

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“The unfortunate thing is that we really should have had a careful and deliberative task force process before changing the wetlands law," said Indra Frank with the Hoosier Environmental Council. "That would have been a good time to sit down and take a look at how it’s functioning and what we could potentially do better.”

But that didn't happen.

Now, the Indiana Wetlands Task Force has released its final report, which advocates, experts and industry say include some pretty powerful findings and recommendations. Chief among them: Indiana needs state-level regulations for preserving wetlands — like the very ones that were stripped last year. 

Other key points in the report include:

• Flooding, and its expensive consequences, are drastically increasing across Indiana due to the overall loss of its wetlands.
• Indiana is at a point where the cumulative loss of wetlands is having a measurable negative impact on residents, including from a water quality standpoint.
• The state also needs incentives and voluntary programs to encourage not only preserving existing wetlands, but also restoring ones that have been lost.

One of the most fundamental proposals in the report is that the state needs to make the environment a priority, both in policy and legislation as well as funding to agencies and for conservation.

The report — produced after a handful of hours-long meetings — is meant to provide some guidance to lawmakers heading into the upcoming legislative session on how to protect those wetlands that remain across Indiana. 

Indiana has already lost 85% of the wetlands it had a century ago, many drained for farming and development over the years. Proponents of the new law passed last year, Senate Enrolled Act 389, said it was needed to further remove red tape for builders and developers. 

But at what cost, the report questioned: “This change has provided short-term economic benefit to farmers and developers at the cost of long-term flooding issues,” the task force wrote.

The task force was chaired by Will Ditzler, a licensed real estate broker and the former chair of The Nature Conservancy in Indiana. He said his experience allowed him to see this topic from a variety of perspectives. Overall, he said he thought the process was productive. He added any tensions between the disparate groups represented on the task force dissipated within a couple meetings and issues like flooding provided some common ground.

“In Indiana, a lot of places are getting more rainfall and we have a lot of places with flooding," Ditzler said. "It impacts builders, farmers, homeowners, municipalities, everyone.” 

The task force did not ultimately recommend repealing or reversing last year’s law: “That’s not going to happen. Legislators passed this and it is what it is, whether you like it or not,” he said.

“But we can say to the state that wetlands have functions and values and therefore the state of Indiana should regulate and be concerned about wetlands,” Ditzler added. 

Controversial wetlands bill creates task force

The task force was created during the 2021 legislative session as part of SEA 389. In particular, the law removed protections for isolated wetlands — those that aren’t directly connected to a body of water, which account for most of Indiana’s wetlands. 

That left more than half of Indiana’s 800,000 remaining wetland acres unprotected, and weakened safeguards for the rest. 

Wetlands, including isolated ones, are critical to the landscape. They help absorb water and prevent flooding, they filter water as it soaks into the ground, and they recharge groundwater resources, which provide a majority of Indiana’s drinking water. 

The Clean Water Act protected many of Indiana’s wetlands before changes made by the Trump administration left as much as half of them without federal cover. But that didn’t mean much in Indiana, which had a state law in place for nearly 20 years. 

Until last year, that is. 

Known as the “wetlands bill,” it was a very controversial piece of legislation that drew extensive criticism from Hoosiers across the state as well as environmental groups. IndyStar reporting showed that several of the lawmakers behind the bill, which removed costly mitigation requirements for developers, had close ties to the building industry. 

After several iterations of the bill, the authors included creation of the task force as part of the final law. The addition was a concession to opponents, said Frank, the Hoosier Environmental Council's director of environmental health and water policy. 

Instead of first studying the existing law and its benefits and how it could be improved, Frank said, "we got this major reduction in wetland protection and then a task force afterward to try to talk about what would be a good approach for wetlands in Indiana.” 

While she found the order frustrating, Frank still felt the process was productive and worthwhile. 

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There were a variety of stakeholders and different perspectives represented on the task force. It had 13 members, including representatives from fields impacted by wetland policies: farmers, water district managers, surveyors, local government leaders and developers. 

The Indiana Building Association representative that was appointed by Holcomb could not attend the meetings due to family issues, according to Rick Wajda, the association's CEO. Wajda said he tried to attend as many of the meetings as possible as a member of the public and provide some input where possible. 

Ditzler said he understands, but added that he thinks the task force would have benefited from having the builders’ full participation. 

“We were never able to have a deep dive dialogue” on various questions or if the builders would take advantage of certain incentives. 

Short-term gains, long-term flooding issues

One of the task force's main directives was to explore how the state could reduce costs incurred by builders wanting to develop wetlands as well as improve the permitting process for development. It also was tasked with analyzing flood reduction benefits of wetlands and finding strategies to incentivize the preservation of wetlands. 

Ditzler said trying to achieve all those things was “an inherently difficult balance.” 

The task force had five meetings that each lasted several hours. Members heard testimony from scientists and experts across a variety of fields. Those discussions ultimately lead to the final report, which was due ahead of the upcoming legislative session. 

The report found the functions and values wetlands provide “are clear and significant.” Even more, it said, Indiana is at a point where the cumulative loss of wetlands is having a measurable negative impact. Some of those real-life impacts include increased frequency and levels of flooding, the loss of agricultural income, infrastructure damage and significant economic hardship. 

The report said that the practical implications of SEA 389 have led to reduced mitigation and increased the loss of isolated wetlands — which offer less ecological value, but do still contribute to water storage and filtration. 

While streamlining regulatory processes and paperwork are important to improve efficiencies, the report added that “caution should be used” to avoid eliminating critical elements for protecting wetlands. 

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Jeff Cummins with the Indiana Farm Bureau said he thought the task force was really helpful for farmers to understand the importance of wetlands for the state, but also for Hoosiers to understand the difficulties for farmers to work with and around wetlands on their properties. 

“It’s important for folks to realize farmers want to be part of the solution,” said Cummins, the Bureau’s associate director of public policy. “Farmers are hearing from the public and they are hearing from us, it’s an important two-way street.” 

The Indiana Department of Environmental Management — which spoke against SEA 389 during the session along with the Department of Natural Resources — said this task force was one of the first times all these different groups were able to come together. 

“The task force’s report shows that wetlands provide critical functions and cost savings to taxpayers and have value to regulate at the state level,” IDEM said in a statement to IndyStar.

Cummins and others also felt that the task force struck a good balance on another front: its recommendations. 

In its report, the task force said Indiana needs state-level regulations to protect wetlands. That’s because the federal rules continue to be a moving target that have regularly changed throughout the different administrations — leaving the state’s waterways vulnerable. 

Right now there is a U.S. Supreme Court case looking at aspects of the Clean Water Act that could significantly alter federal wetlands protections. That’s where Indiana’s safeguards could provide some stability, Frank with the Hoosier Environmental Council said. 

Still, rules and regulations alone won’t make a difference. The state also needs incentives and voluntary programs in the mix.

“A real priority would not only be shown with regulatory issues but funding conservation efforts in addition to regulations,” Ditzler said. “We’ve lost so many wetlands — the regulatory approach is important, but not enough.” 

Prioritizing the environment

Among the report’s main recommendations, it said the state should better staff and fund its agencies that oversee and carry out wetlands policy. State agencies are significantly understaffed and resourced, the report said, operating with a budget nearly one-third lower than it was 15 years ago. IDEM and DNR also have compensation and turnover problems.

Without correcting these issues, all aspects of the regulatory programs are negatively impacted, the report said. That adds time and cost to those applying for permits. Time and all the layers between different agencies are one of the main frustrations for farmers and developers. 

One incentive suggested in the report is to offer some zoning flexibility for developers when it comes to housing density. This could let them locate more houses within a certain amount of space, which could help them avoid wetlands on the land. 

Wajda with the Builders Association mentioned that topic during one of his comments at a task force meeting. He said they would have to review what those policies would look like, but would certainly be interested. 

“We’re open to that discussion on how we can achieve our goals to provide safe and affordable housing but also taking into account impacts on the land development side in areas where there might be wetlands,” Wajda said. 

Another recommendation includes providing additional funding or tax credits to farmers, developers and general landowners for preserving or restoring wetlands on their properties. An existing program to help mitigate developed wetlands also is significantly backlogged and could use some more resources, the report said. 

That part is key for Ducks Unlimited, which is a nonprofit dedicated to conserving habitat for waterfowl and had a representative on the task force. 

“We’re simply looking to keep wetlands and create new ones,” said Joe Genzel, the group’s communications director. “That’s really the goal for us … to continue moving wetlands sustainability in the right direction for the state.” 

Holcomb’s office said in a statement to IndyStar that the governor is grateful for the task force’s dedication to Indiana wetlands. He is reviewing the recommendations and looks forward to further detailed discussions during the upcoming legislative session. 

Ditzler said he doesn’t think these changes will happen overnight, and it will take time to get the legislature on board. The bill’s authors said they did not have time to respond to IndyStar’s requests for comment on the report and its findings. 

That said, 2023 is a budget year at the Statehouse and presents a good opportunity to work on addressing some of the report’s recommendations, especially around agency and conservation funding. 

The report ultimately gets to the main issue that Indiana does not invest in the environment, Ditzler said. If developers and farmers are frustrated with the process, he said the solution is to get funding in the agencies to do their jobs effectively — not to cut the process. 

One of the report's biggest proposals: Finally make the environment overall a priority in Indiana. 

“This is the challenge with environmental issues, nationally and particularly in Indiana, it never seems to make the top list — it’s always about gas prices, inflation, economy, jobs, etc. But at some point, we have to prioritize the environment along with these other issues,” Ditzler said. “The time is now, I think.” 

“We push these issues and don’t want to deal with them and want to build houses,” he added. “But if at the end of the day we don’t have a healthy environment, we will all pay for it.” 

Call IndyStar reporter Sarah Bowman at 317-444-6129 or email at sarah.bowman@indystar.com. Follow her on Twitter and Facebook: @IndyStarSarah. Connect with IndyStar’s environmental reporters: Join The Scrub on Facebook.

IndyStar's environmental reporting project is made possible through the generous support of the nonprofit Nina Mason Pulliam Charitable Trust.