By Judy Bernacchi, Bernacchi Wetland Legal Defense Fund – Indiana
I always have a hard time describing my organization since it consists of just my husband and me. We didn’t plan to become wetland crusaders, but that is what has happened. I have always been a “nature lover” but we turned into activists when our neighbors, with the help of our local drainage board, tried to drain our wetland. I guess that sometimes it takes something personal to get people involved, and we have been involved in this struggle now for over 15 years.
It all started in 1988 when beavers built a dam across a ditch that had been dug years ago through a marsh area on our property. The farmers upstream asked us if they could remove the dam and we gave them permission to do so. The beavers quickly rebuilt the dam, so we allowed a culvert to be installed through the dam. For the next three years, my husband cleaned the culvert out every morning to keep the water at an acceptable level for the neighbors. In the spring of 1991, after heavy rainfall, a neighbor drove back to the dam and installed a much larger culvert, which would have eventually drained the wetland completely. As you can imagine, after being in existence for three years, this area had turned into a beautiful wetland and we were not willing to let it be drained. We told the neighbor he was no longer allowed on the property and that we would take care of the dam. We were promptly sued to have the dam removed and to have an injunction against it ever being built again. I’m still not quite sure how you get an injunction against a beaver!
We hired a lawyer and I started calling state agencies to see if I could get some help from them. It was then that I learned that Indiana had no laws specifically protecting wetlands and that only the Federal Clean Water Act could help me. I joined some environmental groups and started learning about the value of wetlands and how Indiana had already lost over 87% of its original wetlands. Our neighbor’s lawsuit was proceeding when they decided to take their “case” to the local drainage board. The board told them that it could not get involved while there was litigation pending, so they dropped their original lawsuit, thus allowing the drainage board to get involved.
In 1994, my neighbors petitioned the board to have the ditch where the beaver dam was declared a “legal drain”. According to Indiana law, just 10% of surrounding landowners are needed to bring a petition to have a ditch made a legal drain. Once it is a legal drain, the board has jurisdiction over 75 feet on both sides of the ditch. This means that they can drain wetlands and cut down trees on our property, and then we get taxed for it through our property taxes. At the hearing, I asked the board members how they determined that their actions would benefit my neighbor more than it damaged me. The board’s attorneysaid that if they had to discuss benefits and damages, the meeting would go on too long. Much to our disappointment, in September of 1994 the board voted in favor of making the ditch a legal drain.
Over the next five years we appealed the board’s actions to the Indiana Court of appeals three times. It was during our legal battles that the grants from GLAHNF really helped, as the legal fees proved to be very costly. The first and second time the appeals court sent the case back to the board for errors that they had made in their case. It was during the last appeal that the unthinkable happened. The court cited a law from 1894 that said that the draining of wetlands was in the public benefit. Now our ditch was a legal drain and we had to find a way to keep the drainage board from draining the wetland.
Now that our ditch was a legal drain, the board was determined to tear out the beaver dam and drain the wetland. We tried to present alternatives to draining the wetland, such as putting in a control structure to regulate the water, as was the case for three years prior to the original lawsuit. We even had a structure drawn up, only the board wanted to set the level at a height that would also drain the wetland. We were able to get the Indiana Department of Environmental Management (IDEM) to assess the situation, and they decided that the level should be at 755 feet above sea level to maintain the existing beneficial uses. The board, however, questioned IDEM’s authority over the wetland. To make matters worse, my neighbors also decided to try to sue me again to remove the dam and pay any punitive damages (damages awarded as punishment and example to others). Fortunately, the statute of limitations had run out on suing for damages.
The board continued to question whether IDEM had authority over the wetland, and it hired laborers to row across the water and remove one foot of the dam. We agreed to this since that would still be above IDEM’s recommended water level. The board removed one foot of the dam and then, much to our surprise, came back to remove another foot. Since this would be below IDEM’s level we would not allow the laborers to remove any more of the dam. The board is still writing to IDEM questioning their authority, but so far IDEM has not backed down. I think one of the most important things I have learned from all of this is that you can’t back down or stop the fight. You have to throw in any roadblock you can to delay or stop the board from taking action. This fight isn’t over yet, but it’s been 15 years and my wetland is still there. To me, that’s a victory in itself.
Bernacchi Wetland Legal Defense Fund
Russ & Judy Bernacchi
5698 South 500 West
La Porte, IN 46350-9583
219-767-2954, Email: email@example.com