A sign at Nashville’s Shelby Park urges the protection of wetlands. (Photo: John Partipilo)
A bill that would remove protections from an estimated 80% of Tennessee’s wetlands advanced through a Senate committee Wednesday over the objections of several scientists and environmental advocates.
The bill is the second attempt by sponsors Sen. Brent Taylor and Rep. Kevin Vaughan, both West Tennessee Republicans, to roll back what they say are overly onerous mitigation requirements for developers and landowners.
“Under our current regulations that we use in Tennessee, we’re treating a tractor rut like Reelfoot Lake,” Taylor said.
But representatives from environmental organizations said the bill would lead to the piecemeal destruction of Tennessee’s natural resources by removing mitigation requirements for a majority of the state’s wetlands.
Developers are currently required to get state approval and pay mitigation fees before altering swampy areas that soak up rainwater and filter it into groundwater tables. Stripping back regulations weakens the financial incentive for developers to avoid building on wetlands, which provide natural flood mitigation and water quality benefits, opponents said.
Under our current regulations that we use in Tennessee, we’re treating a tractor rut like Reelfoot Lake.
– Sen. Brent Taylor, R-Memphis
The bill passed 7-2 along party lines in the Senate Energy, Agriculture and Natural Resources Committee, and will move on to the Senate Finance, Ways & Means Committee.
Bill says developers could fill ‘artificial isolated wetlands’ at will
The bill’s sponsors finalized an amendment to the caption bill – a bill introduced with a broad description that can be amended later – early Wednesday morning. The legislation defines four types of “isolated wetlands,” creating a new category of “artificial isolated wetlands” created purposefully or inadvertently by the alterations of humans or beavers. Under the bill, developers would be able to drain and fill artificial wetlands at will with no regulatory oversight from the state.
The legislation also scraps automatic mitigation requirements for moderate- and low-quality isolated wetlands — which have minimal or moderate roles in ecosystems and natural water and chemical cycles — up to 2 acres in size. There’s a carve-out for potential 1:1 mitigation for moderate-quality isolated wetlands between ½ to 2 acres, but the bill doesn’t define when that rule would apply.
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An estimated 80% of Tennessee’s wetlands are smaller than one acre, according to George Nolan, Tennessee director of the Southern Environmental Law Center.
High-quality isolated wetlands and moderate- and low-quality isolated wetlands larger than two acres would still require more specialized Aquatic Resource Alteration Permits.
The Tennessee Department of Environment and Conservation commissioner would also gain the authority to change acreage thresholds for low- and moderate-quality isolated wetlands as they see fit. Sen. Heidi Campbell, a Nashville Democrat, said giving “any commissioner in the future this kind of control … is problematic.”
But the bill also prevents regulators from considering destruction of any isolated wetlands when determining a development project’s cumulative impacts on wetlands.
The Harpeth River Conservancy estimates Tennessee has 460,000 individual isolated wetlands, 94% of which are smaller than 2 acres, according to Watershed Science Director Ryan Jackwood.
About 200,000 acres of isolated wetlands in West Tennessee sit atop the recharge zone for the Memphis Sand Aquifer, which provides drinking water for Shelby County and other needs across the mid-south, Protect Our Aquifer Science Director Scott Schoefernacker testified Wednesday.
Opponents say the bill is not the compromise they sought
Vaughan’s 2024 version of the bill was sent to a legislative summer study session, and TDEC presented a report to more than 100 stakeholders during a wetlands summit in October. The department also released a report with detailed recommendations for policy improvements.
“This amendment does not effectuate those recommendations, and in fact goes way beyond what TDEC has recommended,” Nolan said. He added that neither Vaughan nor Taylor attended that summit.
A TDEC representative testified that the amended bill included “a lot of the recommendations,” but a few “really important” items are missing — namely, the creation of a Voluntary Wetland Conservation Fund.
Taylor said that the bill’s proposed regulations are still more stringent than policy in some surrounding states that fall in line with the recently constricted federal definition of wetlands. A 2023 U.S. Supreme Court ruling reduced the number of wetlands covered by federal protection, lifting regulation from “isolated” wetlands that do not have surface connections to other federally protected bodies of water.
Mallory Kirby, who testified in favor of the bill on behalf of the Tennessee Chamber of Commerce and Industry and Home Builders of Tennessee, characterized it as a bill about property rights. She and Taylor say the changes to the state’s regulatory landscape are a compromise that will save developers and landowners time and money, bringing down housing costs.
Connecting the dots between Tenn.’s home builders and bill to deregulate construction on wetlands
Cutting back regulations would cost the state around $78,000 in lost permitting revenue but save Tennessee’s Department of Transportation about $3 million per year on mitigation credits, Taylor said. TDOT, like many transportation departments across the U.S., frequently alters wetlands while building roadways.
Case Davis, president of wetland restoration and mitigation bank company Beaver Creek Hydrology, is a member of the Tennessee Ecological Restoration Association. His company (and those represented by TERA) restore or preserve wetlands and then provide mitigation credits for developers to purchase. The association calculated the industry has invested more than $1 billion in restoration and conservation projects in Tennessee, he said Wednesday.
The group supports the amendment but has one big concern: the clauses preventing consideration of projects’ cumulative impacts on these wetlands.
“It’s a supply and demand type market,” Davis said. “If we reduce the amount of wetlands that are protected by 90% as this bill intends to do, then the cost of those mitigation credits will go up because we have a pro forma — we have to recoup our investment. So to state that this will reduce the cost of mitigation by reducing the impacts to wetlands is not true.”
Taylor repudiated scientists’ and advocates’ warnings that failing to consider the bill’s cumulative effect on Tennessee’s wetlands would have lasting negative consequences for water quality and flood control, among other things.
“How come those things aren’t happening in Kentucky, Mississippi, Alabama, Georgia, South Carolina, Louisiana, Arkansas, Missouri, Iowa, Kansas, Oklahoma and Texas?” Taylor asked. “This bill regulates more than those states, but they all still have drinking water. They’ve not been submerged in floods.”
“If you’re destroying wetlands in all of those places, those things are happening,” Nolan replied. “The question is, at what rate are they happening?”
Removing incentives to preserve wetlands will change the way water and money flows, Nolan said.
“That’s going to turbo-charge the destruction of our wetlands, and it’ll be our grandchildren that will experience the consequences of that.”
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