Indiana lawmakers could further dilute state wetlands protections following SCOTUS decision

By: Casey Smith – July 26, 2023 7:00 am – Indiana Capital Chronicle

A U.S. Supreme Court ruling from earlier this year will effectively remove federal protections for most of Indiana’s wetlands — and enable Hoosier lawmakers to repeal already-weakened state protections for those areas.

The high court ruled in May that federal protections for wetlands under the Clean Water Act only apply to wetlands with a continuous surface connection to federally protected waterways that make them “indistinguishable” from those waters.

The ruling will allow states to further strip away regulations that currently keep developers from repurposing wetlands for commercial use. 

It’s not yet clear how Indiana lawmakers plan to respond, but the Republican-dominated legislature has in recent years refused more “restrictive” water regulations. Instead, GOP-led efforts have resulted in rollbacks and removals of protections for certain wetlands.

Some wetlands continue to be protected by city parks or trusts, preventing anyone from building on those areas or turning them into farmland.

But most Indiana wetlands relied only on those federal protections that have since been stripped away.

Environmental experts say the justices’ decision could lead to a loss of wildlife and increased flooding across Indiana but lawmakers are mum so far. Meanwhile, builders see a possible opportunity.

What the decision means

In a 5-4 decision, the U.S. Supreme Court ruled against the EPA in Sackett v. EPA, a decades-old case brought by an Idaho couple that sought to develop land near a lake without a federal permit in 2004.

Justice Samuel Alito, writing for a five-justice majority, opined that the existing federal standard — laid out in the Clean Water Act — is too broad, too difficult to enforce and too “precarious” for property owners.

The decision has now severely restricted which waterways across the country can be protected under the Clean Water Act.

“In sum, we hold that the (Clean Water Act) extends to only those ‘wetlands with a continuous surface connection to bodies that are “waters of the United States” in their own right,’ so that they are ‘indistinguishable’ from those waters,” Alito wrote in the majority’s opinion.

Indiana is home to more than 800,000 acres of wetlands, equal to about 3.5% of the state’s geography.

Although 80% of Indiana’s wetlands had federal protection, that is expected to drop to 20% following the Supreme Court ruling.

Indra Frank, Director of Environmental Health and Water Policy for the Hoosier Environmental Council (HEC), said the decision will significantly impact flooding and drinking water in Indiana.

The HEC estimates that more than 300,000 acres of wetlands are now in jeopardy.

Environmental groups and experts note that wetlands are vital for soaking up excess nutrients in soil — especially elements like nitrogen and phosphorus, which are common ingredients in fertilizer that can leach from farmland — and preventing them from creating problems elsewhere.

Wetlands also catch and hold excess stormwater, reducing flooding on that landscape. Additionally, they help cleanse underground aquifers. That’s important, given that about 70% of Indiana residents rely on groundwater for at least part of their drinking water supply, according to the Indiana Department of Environmental Management.

The Indiana Department of Natural Resources emphasizes, too, that wetlands provide a habitat for half of Indiana species with small or declining populations.

Indiana Attorney General Todd Rokita, on the other hand, applauded the Supreme Court ruling on social media.

“This is great news for farmers and property owners in our state!” said the Republican attorney general in a May 25 tweet. “The Supreme Court’s ruling will protect Hoosiers’ jobs, property, and freedom from the Biden admin’s excessive regulations.”

Fewer protections in Indiana?

Environmental advocates say they’re now concerned that state-level protections in Indiana — which have already been curtailed by the Indiana General Assembly — could be further eroded.

It’s a different tune from builders and developers, however, who in recent years have pressed elected officials to decrease wetlands regulations, which they say limit their construction abilities. 

During the most recent 2023 legislative session, multiple Republican lawmakers who also serve as members of the Indiana Builders Association (IBA) attempted to pass a last-minute amendment that sought to reduce the number of state-protected wetlands even further.

The provision sought to make it harder for a wetland to be considered anything but Class 1 and would eliminate the possibility of any Class 1 or Class 2 wetlands being elevated to the most-protected Class 3 status.

Republican lawmakers claimed the change would “clarify” definitions in the state’s wetlands statute.

Even so, the amendment ran counter to findings from the Indiana Wetlands Task Force — convened by the legislature — which recommended Indiana to have a separate state law to regulate wetlands that isn’t bound to federal rules.

The language failed to become law, however.

The failed proposal closely mirrored a 2021 bill that removed all state protections for Class I wetlands, which make up more than half of the state’s remaining wetlands. Although considered to be less pristine, those wetlands still help reduce flooding and improve water quality. 

Still, the 2021 bill had to be watered down after environmental groups rallied to defeat the legislation. Some state regulatory officials pushed back, too.

Sen. Chris Garten, R-Charlestown, a key author on the 2021 bill, declined to comment on the Supreme Court decision or discuss whether state legislators will file new wetlands-related bills in the 2024 session. Another of the 2021 bill authors, Sen. Linda Rogers, R-Granger, also did not comment.

A spokesperson for the builders association told the Indiana Capital Chronicle that the Supreme Court ruling now provides builders and developers “more certainty in the federal permitting process,” and called the decision “a win for common-sense regulations and housing affordability.”

IBA CEO Rick Wajda added that the association is continuing to urge federal agencies “to strike a balance between protecting our nation’s water resources and providing housing that is affordable.”

It’s possible that federal lawmakers could now step in and make changes to the Clean Water Act. For now, the HEC and other state groups say they plan to push the Indiana legislature to take action that ensures better wetland protections at the state level.

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