Homes are visible under construction near wetlands in Oak Island, N.C., Tuesday, Aug. 29, 2023. The Biden Administration weakened protections for wetlands on Tuesday, a win for developers and agricultural groups in some states. Photo by Karl B DeBlaker.

By Alex Brown
Indiana Capital Chronicle

INDIANA — For 200 miles, the Wabash River forms the border between Illinois and Indiana as it meanders south to the Ohio River. On the Illinois side, lawmakers are scrambling to pass a bill that would protect wetlands from development and pollution, in order to safeguard water quality and limit flooding.

But in Indiana, state policymakers hastily passed a law earlier this year to roll back wetlands regulations, at the urging of developers and farm groups who said such rules were overly burdensome.

That means the water that flows into the Wabash River from the west may soon be governed by very different standards than its watershed on the eastern side.

The divide is the result of a U.S. Supreme Court ruling last year that stripped federal protection from millions of acres of wetlands that had been covered under the Clean Water Act — leaving their fate up to the states.

In the first full legislative sessions since the ruling came down, lawmakers in some blue states, including Illinois, Colorado, New Mexico and Washington, have been drafting state protections or have increased state funding to replace the loss of federal oversight. Some red states, including Indiana, Missouri, North Carolina and Tennessee, have passed or considered measures to roll back safeguards that are no longer mandated by the feds.

The lobbying from environmental groups on one side and developers and farm groups on the other has sent states moving in opposite directions during the 2024 legislative session.

A ‘Fallback Plan’

The Supreme Court ruling in the Sackett v. Environmental Protection Agency case last year stripped Clean Water Act protections from wetlands that do not share a surface connection with a larger body of water, leaving out many waters that connect through underground channels. The decision leaves more than half of the nation’s 118 million acres of wetlands without federal oversight. In 24 states, no state-level regulations cover those waters, according to the Environmental Law Institute, a nonprofit research group.

Democratic state Rep. Anna Moeller, the measure’s House sponsor, noted that Illinois has lost 90% of its wetlands since the early 1800s.

Sen. Laura Ellman and Moeller said bill supporters are working with state regulators to make some minor technical changes before it advances. Paul Botts, executive director of the Wetlands Initiative, a Chicago-based nonprofit, said environmental advocates and regulatory officials have concerns about funding for the program, which lawmakers hope will be largely covered by fees on permit applicants.

Backers don’t yet have a price tag for how much the permitting program would cost, and regulators in other states have found it difficult to cover their funding needs through fees alone.

Unlike Illinois, neighboring Indiana did have state wetlands rules prior to the Sackett decision. But lawmakers moved quickly this year to shift some wetlands into classifications that have fewer protections.

In Indiana, Illinois and many other states, local homebuilders’ groups have been among the leading voices to curtail wetlands regulation. Rick Wajda, CEO of the Indiana Builders Association, echoed Niemeyer’s assertion that the law will reduce protections only for “low-quality wetlands.”

But many environmental advocates in Indiana say the new law’s supporters are understating its effects. They argue that Republicans rushed the measure through the legislative process in just over a month to avoid public scrutiny.

Sen. Shelli Yoder said developers have told her that building on wetlands is an expensive task, even with no regulations in place, undermining claims that regulatory rollbacks will lead to affordable housing.

Writing New Rules

Like Illinois, several other Democratic-led states have passed or considered bills to create wetlands protections or increase funding to state regulatory agencies to compensate for the loss of federal support.

In Colorado, state legislative leaders are expected to introduce a bill in the coming days that would establish state-level protections for the wetlands that lost coverage following the Sackett decision. Supporters say Colorado and other states with arid regions are especially vulnerable, because the Supreme Court ruling also cut protections for “ephemeral” streams that don’t flow year-round.

In New Mexico, state regulators already had been working to establish a permitting program that covers wetlands. State leaders say the court ruling increased the urgency to put state oversight in place.

In the budget passed by state lawmakers earlier this year, the Water Protection Division  agency received $7 million to help establish the program. The funding will allow the agency to hire enforcement staff, improve its mapping of state waters and establish a permitting database. Agency officials expect to publish draft rules this fall, with regulations officially in place by 2027. Once fully established, the program will require 35 to 50 dedicated staffers.

Lawmakers in Washington state also provided a funding boost for agency regulators. The state’s Department of Ecology already has well-established wetlands standards, but it’s expecting an influx of permit applications for waters that were once covered by federal agencies. With an extra $2 million, agency leaders say they’ll be able to add more staffers to ensure permits are processed on time.

States Step Back

Indiana’s move to cut wetlands standards followed North Carolina’s rollback of state laws soon after the Sackett decision.

While Republican lawmakers overrode the veto of Democratic Gov. Roy Cooper, the governor issued an executive order in February directing state agencies to conserve 1 million acres of natural lands, with an emphasis on wetlands. The order directed state leaders to avoid projects that would harm vulnerable wetlands, while also instructing state agencies to pursue more federal funding for wetlands restoration.

Meanwhile, a bill in Tennessee to eliminate state wetlands standards did not advance out of committee, following strong pushback from state regulators and environmental groups. Backers of the bill said environmental officials have made it too costly to farm or develops lands that have wet areas. The proposal was sent to a legislative summer study session.

Missouri lawmakers are considering a bill that would narrow state protections. In an analysis of the bill, the state’s Department of Natural Resources said the measure’s fiscal impact was incalculable, as the lowered standards could threaten the aquifers that provide drinking water to 59% of Missouri residents.

Agriculture groups have supported the bill, the Missouri Independent reported, saying current regulations apply to areas that would be better characterized as ditches.