The bill to remove protections from an estimated 80% of Tennessee wetlands advanced through a Senate committee on Wednesday over objections from several scientists and environmental advocates.

The bill is the second attempt by Senators Brent Taylor and Kevin Vaughan, a West Tennessee Republican, to roll back what they say is an overly troublesome mitigation requirement for developers and landowners.

“Under the current regulations we use in Tennessee, we deal with tractor ruts like Reelfoot Lake,” Taylor said.

But representatives from the environmental organization said by removing the mitigation requirements for most of the state’s wetlands, the bill would lead to fragmentary destruction of Tennessee’s natural resources.

Developers now need to obtain state approval and pay a mitigation fee before changing the marsh area that absorbs rainwater and filters it into the groundwater table. Deprived regulations undermine developers’ financial incentives to avoid building up into wetlands that provide natural flood mitigation and water quality benefits, opponents said.

The bill passes 7-2 along the party line of the Senate Energy, Agriculture and Natural Resources Committee, and proceeds to the Senate Finance, Methods and Means Committee.

Bill says developers can freely fill “artificial isolated wetlands”

The bill’s sponsors have finalized amendments to the caption bill. This is a bill introduced early Wednesday morning with a broader explanation that could be revised later. The law defines four types of “isolated wetlands” and creates new categories of “artificially isolated wetlands” that have been intentionally or carelessly created by human and beaver changes. Under the bill, developers can freely discharge and fill artificial wetlands without regulatory oversight from the state.

The Act also scrapes automatic mitigation requirements for medium and low quality isolated wetlands with minimum or moderate roles in ecosystems and natural water and chemical cycles of up to two acres in size. There is a carve-out for potential 1:1 mitigation of medium-quality isolated wetlands between ½ and 2 acres, but the bill does not define when that rule will apply.

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An estimated 80% of Tennessee wetlands are smaller than an acre, according to George Nolan, the Tennessee director of the Southern Environmental Law Center.

High-quality isolated wetlands and medium and low-quality isolated wetlands larger than 2 acres require more specialized aquatic resources changes.

The Tennessee Environmental Conservation Commission also gains authority to change the thresholds for low-quality and moderate-isolated wetland area that are deemed appropriate. “It’s problematic to give future committee members to this type of administrator,” said Sen. Heidi Campbell, a Nashville Democrat.

However, the bill also prevents regulators from considering the destruction of isolated wetlands when determining the cumulative impact of development projects.

Harpeth River Conservancy estimates that Tennessee has 460,000 individual isolated wetlands, 94% of which are smaller than two acres.

Approximately 200,000 acres of isolated wetlands in western Tennessee are located above the charging zone of the Memphis Sand Aquifer.

Opponents say the bill is not a compromise they sought

Vaughn’s 2024 edition of the bill was sent to the Legislative Summer Study Group, with TDEC submitting reports to more than 100 stakeholders at the Wetlands Summit in October. The department also released a report with detailed recommendations on improving the policy.

“This amendment does not affect these recommendations. In fact, it’s far beyond what TDEC recommends,” Nolan said. He added that neither Vaughn nor Taylor attended the summit.

A representative from TDEC testified that the amended bill includes “many recommendations,” but that some “really important” items are missing: the creation of a voluntary wetland conservation fund.

Taylor said the proposed regulations on the bill are even stricter than the policies of the surrounding states that are in line with the definition of narrow federal wetlands recently. A 2023 U.S. Supreme Court ruling reduced the number of wetlands covered by federal protection and lifted restrictions from “isolated” wetlands that do not have surface connections to other federal protected waters.

Mallory Kirby, who testified in support of the bill on behalf of the Tennessee Chamber of Commerce and Tennessee home builders, characterized it as a property rights bill. She and Taylor say the changes to the state’s regulated environment are a compromise that saves developers and landowners time and money and reduces housing costs.

Connect dots between Tennessee home builders and buildings to deregulate wetland construction

Cutting regulations will cost the state’s losses in revenue of around $78,000, but the Tennessee Department of Transport will save around $3 million a year on mitigation credits, Taylor said. TDOT, like many transportation sectors across the United States, frequently changes wetlands during road construction.

Case Davis, president of Beaver Creek Hydrology, a wetland restoration and mitigation banking company, is a member of the Tennessee Ecological Restoration Association. His company (and the company represented by Tera) will recover or store the wetlands and provide mitigation credits purchased by developers. He said the association calculated that it invested more than $1 billion in Tennessee’s recovery and conservation projects.

The group supports the revision, but there is one major concern. These are provisions that prevent the consideration of the cumulative impact of the project on these wetlands.

“It’s a market of supply and demand type,” Davis said. “Reducing the amount of wetlands that are 90% protected as this bill intends, will raise the costs of these mitigation credits because we have a proforma, and we need to collect the investment.

Taylor rejected the warnings from scientists and advocates that failing to consider the cumulative effects of the bill on Tennessee wetlands would have lasting negative consequences, among other things, on water quality and flood control.

“Why aren’t these things happening in Kentucky, Mississippi, Alabama, Georgia, South Carolina, Louisiana, Arkansas, Missouri, Iowa, Kansas, Oklahoma, Texas?” Taylor asked. “The bill regulates more than these states, but they all still have drinking water. They’re not submerged in the flood.”

“If you’re destroying wetlands in all these places, those things are happening,” Nolan replied. “The question is, at what speed is it happening?”

Nolan said removing incentives to preserve the wetlands will change the flow of water and money.

“It’s going to charge our wetland destruction into the turbo, and it will be our grandson.”