Indiana Case Threatens Wetlands Protection

Indiana Case Threatens Wetlands Protection

FORT WAYNE, Ind. – GLAHNF aid will help Hoosiers protect wetlands after a Marion County Superior Court decision threatened a significant number of previously-protected state wetlands. Save the Dunes Conservation Fund (SDCF), as the Indiana Hub of the Great Lakes Aquatic Habitat Network and Fund, sponsored the Cedar Creek Wildlife Project of Fort Wayne in its proposal entitled, “Supporting the State of Indiana’s Authority to Regulate Isolated Wetlands”. The proposal received a $2000 grant from GLAHNF to contract with a lawyer and file a “friend of the court” brief supporting the Indiana Department of Environmental Management’s (IDEM) authority to regulate “isolated wetlands.” On June 20th the Save the Dunes Conservation Fund and the Cedar Creek Wildlife Project filed the brief with the court in the case of Twin Eagle LLC v. Indiana Department of Environmental Management.

Twin Eagle LLC, a real estate developer in Allen County brought the original case against IDEM challenging the state’s authority to regulate filling activities of certain “private ponds” and “isolated wetlands”, which the court ruled are not”waters of the state.” IDEM appealed the lower court’s decision to the Indiana Supreme Court, which is scheduled to hear the case this fall. While the Twin Eagle 460-acre site contains only 14.75 acres of such land, the Indiana Supreme Court decision will affect over 311,000 acres of wetlands statewide, according to IDEM. Wetlands are a vital component of the ecosystem, providing flood control, groundwater recharge, wildlife habitat, and filtration of polluted runoff.

According to Sandra L. Wilmore, SDCF Director, “This case will have significant long-term ramifications for wetlands and water quality in Indiana. We are confident that IDEM has clear authority to regulate these waters of the state.” In January 2001, the U.S. Supreme Court removed federal jurisdiction over certain isolated waters used by migratory birds in the case of Solid Waste Agency of Northern Cook County (SWANCC) v. U.S. Army Corps of Engineers. Prior to the SWANCC decision, IDEM regulated wetlands under section 401 of the federal Clean Water Act. Following this decision, IDEM declared that discharges to waters no longer regulated under federal permits would require a permit from the state’s National Pollution Discharge Elimination System (NPDES). IDEM is using the NPDES “interim regulatory process” while the state clarifies its rules in response to SWANCC decision. The lower court declared this rule making process unlawful.

Other organizations named in the brief include Save the Dunes Council, Hoosier Environmental Council, Indiana Division Izaak Walton League of America, and the National Wildlife Federation.

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