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Issue 1, September, 2003 |
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© 2003 |
Court Decision Affects Property Owners' Dredge
and Fill Activities on Wetlands by
Kathy Lucas and Bryan Babb The Indiana Supreme Court ruled Tuesday that the Indiana Department of Environmental Management has state authority, independent of the federal Clean Water Act, to regulate “waters of the state”, including certain private ponds and isolated wetlands (IDEM v. Twin Eagle LLC). The Court approved IDEM’s process for the regulation of dredge and fill activities in or near those water bodies. The end result is that developers, farmers and other property owners will now need IDEM’s permission before filling in some of Indiana's smallest wetlands – even though they are isolated from lakes and streams – if the agency determines those water bodies constitute “waters of the state”. The lawsuit had been brought by Fort Wayne housing developer, Twin Eagle, which wanted to build a residential development on 460 acres of property that it owned, approximately 3% of which consisted of isolated wetlands and private ponds. Twin Eagle contended that IDEM had lost its power to regulate such wetlands when the U.S. Supreme Court ruled in 2001 that federal jurisdiction over isolated wetlands no longer existed because they were not waters of the United States. In other words, because IDEM had been previously regulating wetlands under the federal Clean Water Act, IDEM’s authority was also now nonexistent. The Indiana Supreme Court disagreed, noting that states are free to adopt broader and more stringent regulatory programs than those existing at the federal level. Environmentalists had argued that state regulation of wetlands is necessary because wetlands provide breeding areas for waterfowl and habitats for plant and animal life, as well as serve as a natural means of flood control and storm damage protection. Developers had countered that it makes little economic or environmental sense to preserve smaller isolated wetlands, some less than an acre in size, if they are going to prevent the construction of multi-million dollar housing and business developments. After Twin Eagle, however, IDEM has the authority to regulate potentially all of Indiana’s wetlands, even those isolated from lakes and streams and located in the middle of large-scale developments. The determining factor is whether the wetland or private pond meets IDEM’s definition of state “waters”. Whether or not a particular area falls within IDEM’s jurisdiction is a question of fact which can be challenged before an Administrative Law Judge. Developers, farmers and others contemplating activities in potential wetland areas are advised to seek technical and legal advice before proceeding in order to avoid costly enforcement action by state agencies. | |
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