An Encouraging Victory in the Continuing Struggle for Indiana’s Wetlands

An Encouraging Victory in the Continuing Struggle for Indiana’s Wetlands

In a victory for the Indiana Department of Environmental Management (IDEM) and the environmental organizations supporting state wetlands regulation, the Indiana Supreme Court ruled in September 2003 that IDEM has authority to regulate so-called “isolated wetlands.”

IDEM declared in April of 2001 that discharges to waters no longer regulated under federal permits would no longer be exempt from the state’s National Pollutant Discharge Elimination System (NPDES) permit requirement. IDEM announced the use of the NPDES as an interim regulatory process in response to the January 2001 U. S. Supreme Court decision in Solid Waste Agency of Northern Cook County (SWANCC) v. U.S. Army Corps of Engineers. Prior to the SWANCC decision that removed certain “isolated” bodies of water from federal jurisdiction, IDEM regulated these wetlands under section 401 of the federal Clean Water Act.

In July 2001, the Allen County developer Twin Eagle LLC challenged IDEM’s authority to regulate water quality and wetlands through its NPDES permitting process. Twin Eagle sought a declaratory judgment to prevent IDEM from enforcing state environmental laws affecting their proposed residential development. Twin Eagle’s development plans called for filling in most of the 14.75 acres of wetlands that the US Army Corps of Engineers determined were not subject to regulation under the Clean Water Act. Twin Eagle argued that IDEM could not regulate filling activities of certain “private ponds” and “isolated wetlands”. A Marion County Superior Court ruled in favor of the developer, and IDEM appealed the decision to the Indiana Supreme Court.

In June of 2002, Save the Dunes Conservation Fund and several other environmental organizations filed a “friend of the Court” brief on behalf of the IDEM in the Indiana Supreme Court case Indiana Department of Environmental Management v. Twin Eagle LLC, 2003 Ind. The Great Lakes Aquatic Habitat Network and Fund (GLAHNF) provided funding to hire an attorney for filing the amicus brief. Organizations included in the brief were the Cedar Creek Wildlife Project, Hoosier Environmental Council, Indiana Division of the Izaak Walton League of America, National Wildlife Federation, and Save the Dunes Conservation Fund and Council.

The Indiana Supreme Court’s ruling in Indiana Department of Environmental Management v. Twin Eagle LLC, 2003 favored IDEM on all counts, including three substantive issues.The Court held that IDEM may regulate “waters of the State” that are not “waters of the United States” and that IDEM may regulate discharges to wetlands and private ponds. Finally, the Court ruled that IDEM has the regulatory authority to impose the NPDES permit requirement on discharges of dredge or fill material no longer regulated as “waters of the United States”. The ruling regarding private ponds is particularly important, since Indiana statute excludes private ponds from regulation unless the discharge from the pond causes or threatens to cause water pollution. The Court held that whether the Twin Eagle project involves ponds that meet this condition must be determined by IDEM.

Although Indiana environmental groups rejoice in the Indiana Supreme Court’s decision in this case, the prospect for final adoption of protective state wetland rules has nonetheless worsened. Governor O’Bannon’s veto of weak wetlands legislation last year was recently overridden by both chambers of the General Assembly. Indiana environmental groups are proposing amendments for inclusion in a trailer bill, but there is little hope for substantial improvement.

Regardless of the legislative outcome, Save the Dunes Conservation Fund will continue to work with other environmental groups on establishing and maintaining strong wetlands protection for the state.

 

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West Grand Boulevard Collaborative, & Yellow Dog Watershed Preserve.