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The Journal Gazette

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Tuesday, March 12, 2019 1:00 am


Fluid argument

'No more stringent' vs. local control

In 2016, then-Gov. Mike Pence vetoed a measure known as the “no more stringent” bill that would have prevented the Indiana Department of Environmental Management from setting or enforcing standards stricter than those set by the U.S. Environmental Protection Agency. Pence said vetoing the bill, authored by Rep. David Wolkins, R-Warsaw, was necessary to ensure “that we will continue to have the necessary discretion and flexibility to create Indiana solutions at the state level and act in a timely way to protect our drinking water.”

This year, the “no more stringent” concept is back, in a water-pollution-control bill authored by Rep. Doug Miller, R-Elkhart, that is making its way through the legislature. Instead of limiting IDEM enforcement, though, House Bill 1266 would prevent local agencies from enforcing standards for runoff from small construction sites that are stricter than IDEM's rules for larger sites. Wolkins chaired the House committee that heard and approved the bill and signed on as a co-author.

But at a hearing in January, he offered Miller some advice. Find another way to say “no more stringent,” Wolkins said, to laughter from the committee. Use 'not greater than' or something,” he suggested, “because obviously a lot of people still don't like that term. I can tell you that.”

It's not the exact phrasing of the bill that matters to its opponents, though. As in other essentially local matters where the legislature tries to insert itself, the bill runs counter to the once-revered concept of “home rule” – the idea that as many decisions as possible should be made by the people directly affected by those decisions. And environmentalists such as Jill Hoffman, executive director of the White River Alliance, argue that while having all localities adhere to the same state standards could make life easier for building contractors, it could endanger local regulators' ability to respond appropriately to water-pollution dangers from construction sites.

Though IDEM regulates runoff from large construction projects, local water agencies are now free to set their own standards with work sites that are less than one acre. Builders say they must navigate a hodgepodge of regulations. But environmentalists say sediment runoff from small construction sites is a big problem that requires different solutions in different areas.

“Our watersheds are not the same, the soils, the slopes, the flow, all of that requires the difference, and why we have more stringent rules in certain places,” Hoffman told legislators. “Easy is good. I can appreciate that. But we have to appreciate how important and different the water resources of our state really are.”

Ensuring that sediments are properly regulated is a key to maintaining healthy water systems. Sediment runoffs clog lakes and carry other pollutants into waterways that can cause damaging and dangerous algae growth.

Matthew Wirtz, Fort Wayne deputy director of engineering, said the city has been concerned about the bill's possible effects on pollution regulation for projects in the city.

“We would like to be able to do what is in the best interests of our community and our watershed,” Wirtz said Monday.

The bill's advocates and opponents may have found some areas of agreement. Miller, himself a builder, insists his bill is not aimed at reducing pollution controls. And environmentalists acknowledge that there are some problems with the current system in some localities.

“There have been some instances of frustration, where it seems as though authorities may be overreacting,” Jesse Kharbanda, executive director the Hoosier Environmental Council, said in an interview last month.

After a Senate committee hearing Monday, the environmental council urged the bill's backers to slow down and try to find a less-dramatic way to deal with those occasional local excesses.

“Instead of moving HB 1266 forward,” the council said in a release, “we urge them to opt for an alternative approach – dialogue between all stakeholders aimed at addressing the frustrations of both the construction industry and the local authorities with the current system for sediment control. We stand ready to help them with that alternative approach.”

There may be ways to ditch the “no more stringent” approach, yet effectively deal with construction-permitting problems and protect the environment.