Environmentalists: Second attempt at wetlands bill would leave 80% vulnerable to development
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.
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.
Developers, seeking to gain from building boom tied to Ford plant, push for weaker wetland rules
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.
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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In response to an earlier inquiry, HHS said on May 22 that Kennedy "has been working hard to ensure that the critical functions under NIOSH remain intact" and that "ensuring the health and safety of our workforce remains a top priority for the Department." In the May 2 emails, reviewed by The Spokesman-Review, NIOSH employees were told their termination "does not reflect directly on your service, performance, or conduct" and was happening because "your duties have been identified as either unnecessary or virtually identical to duties being performed elsewhere in the agency." Contrary to that explanation, documents and emails obtained by The Spokesman-Review show that Kennedy eliminated entire divisions of NIOSH, leaving virtually no one to focus on safety for hard-rock miners, oil and gas workers, commercial fishermen, farmworkers or wildland firefighters. 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"The Trump administration's unfathomable decision to gut NIOSH and fire nearly every person at the Spokane Research Lab is a devastating and shortsighted move that puts workers everywhere at risk," Murray said in a statement that accompanied the report. "These thoughtless firings don't just risk Americans' health and safety in the workplace today, but threaten decades of progress toward preventing workplace hazards. Researchers in Spokane who have dedicated their careers to protecting workers across the country are being kicked to the curb because Donald Trump and his conspiracy theorist Health Secretary don't have a clue what NIOSH does and don't care to learn." Sen. Maria Cantwell, D-Wash., also voiced support for the Spokane researchers in a statement on Thursday. "The dedicated team at NIOSH's Spokane facility conducts research that protects miners and other Americans with dangerous jobs," Cantwell said. "Closing NIOSH will mean more blue-collar workers suffering debilitating diseases from chemical exposure or dying in accidents. We should be increasing the Spokane Research Lab's budget to fund more innovation and safety, not shutting them down." Trump's budget request to Congress, released May 30, includes $73.2 million for NIOSH — about 80% lower than the current fiscal year — including $66.5 million for mining research, $5.5 million for the agency's national cancer registry for firefighters and $1.2 million for mesothelioma research. According to an email to NIOSH employees from the agency's director, obtained by The Spokesman-Review, Trump's request doesn't include funding for the Western States Division in Spokane. Sen. Jim Risch, R-Idaho, said in a brief interview on Wednesday that ensuring safety for miners and oil and gas workers is "incredibly important" and emphasized that the president's budget request is only a suggestion. It will ultimately be Congress, he said, that decides how much funding NIOSH gets. "These are things that were done by the DOGE people, and they were people who didn't have the same experience of dealing with the overall budget as we do up here," Risch said, noting that employees at the Department of Government Efficiency have admitted that they have made mistakes. "When we sat down with the DOGE guys, they said, 'Look, we were given a job. We went and did this job. We understand you guys are experts on this. When we're done, it's going to be up to you,'" Risch said. "What we're going to do is take a healthy look at what these jobs entail. It's going to be looked at seriously and responsibly through the appropriations process." Murray, the top Democrat on the Senate Appropriations Committee, has been less patient with Kennedy and DOGE, which was spearheaded by billionaire Elon Musk before his public falling-out with Trump last week. In an interview on Wednesday, the Washington senator said she has repeatedly tried and failed to reach the HHS secretary's team, joking that they must have also fired everyone who answered the phones. "We are looking at all the options, obviously, for next year," Murray said. "Writing our appropriations bills, looking at language, working in a bipartisan way, to make sure that funds that we, Congress, decide are appropriated will actually have to be implemented by the administration." The Spokane Research Lab also has support in the House from Rep. Michael Baumgartner, a Spokane Republican who has written two letters calling on Kennedy to reconsider the termination of its employees and visited the facility on Tuesday. Baumgartner's office didn't say whether he had received a response to either letter from the HHS secretary. The Spokane facility's nationwide reach has earned it support from other influential Republicans in Congress, including Sen. Lisa Murkowski of Alaska and Sen. Mike Rounds of South Dakota. In a Senate Appropriations subcommittee hearing on March 20, Rounds told Kennedy that terminating NIOSH jobs in Spokane had resulted in the loss of a $1.2 million mine safety grant to the South Dakota School of Mines & Technology, which also relies on NIOSH for "critical technical support." "We need to protect our miners," Kennedy replied, pledging to work with Rounds' office. "We need to protect them because they are the future of our country." In a hearing of the Senate Committee on Health, Education, Labor and Pensions, Murkowski asked Trump's nominee to lead the Occupational Safety and Health Administration — a regulatory agency that relies on NIOSH research — how he would do his job without data from NIOSH. The nominee, David Keeling, replied that it would be difficult, but he would consider replacing NIOSH with "private entities." Asked why she thinks the Trump administration eliminated the NIOSH jobs, Murkowski told The Spokesman-Review on Thursday, "They were looking for cuts, and as we've seen in many departments, it seems somewhat indiscriminate and arbitrary." "I think what we're working through still is some of the DOGE recommendations, where you're not fully appreciating the role and the function of many of these federal employees," she said. "My hope is that they're going to be actually looking at this now and realizing we need this information." Murkowski said she has stressed to Kennedy how important NIOSH is for Alaska's commercial fisheries. Another concern, she said, is that valuable researchers could choose to leave public service while their jobs are in limbo. "When you are sending the signal to that federal employee that maybe what you've been doing is not what we want to continue, people are making their own determinations and leaving, and now we've got all these vacancies," Murkowski said. "I think you're going to see a resettling. I just don't know when." After earning an engineering degree at the Colorado School of Mines, Stazick worked in the private sector before she took a job with NIOSH at the Spokane Research Laboratory in 2020. She knew it would mean taking a pay cut but liked working to improve workers' safety, not just a company's bottom line. "It was a really big incentive for me to go and take a big pay cut and go into the public sector," said Stazick, 27. "With this engineering degree that I could be using to make someone a bunch of money, it just felt nice that the work I was doing was affecting people's lives and safety." NIOSH named Stazick one of its "rising stars" in 2022, and she developed her expertise in the corrosion of metal support structures for underground mines. She worked with miners to replace bolts that were corroding within six months — causing roof failures — with more durable materials. "It's just upsetting," she said of the mass layoffs. "I'm at a career transition point again. I had found something I was really passionate about. So, yeah, the whole thing has been upsetting." Stazick's colleague Brad Seymour, another mining engineer and union steward, is at the other end of his career. When he started at the Spokane facility in 1986, it was run by the now-defunct U.S. Bureau of Mines. He planned to work for about one more year, to make it an even 40. "The thing that's discouraging about it is that I don't think it was discussed well within the leadership," Seymour said of the mass firing. "So it came as a shock to everybody. And because of that, the cuts were not handled in a very thoughtful manner." Seymour has dedicated his career to helping miners prevent collapses and "rock bursts" caused by the extreme pressure in deep underground mines. That's in the interest of mining companies, but he said the engineers working for companies don't have the time or the incentives to do the kind of research that happens at NIOSH, which benefits the whole industry. Coeur d'Alene-based Hecla Mining was forced to close its Lucky Friday Mine in Mullan for more than a year and spend over $30 million in improvements after accidents killed two miners and injured seven more in 2011. A spokesman for Hecla declined to comment on NIOSH research. Early in his career, Seymour worked to improve cemented backfill methods — where miners fill underground voids with mill tailings and other material to prevent cave-ins — at the Cannon Mine in Wenatchee. Those improvements, he said, were adopted by mining companies around the world and helped fuel a gold-mining boom in Nevada in the 1990s. Just like those benefits to the mining industry, the negative effects of ending NIOSH research could take years to be borne out, the workers in Spokane warned. Art Miller, who retired from the Spokane Mining Research Division at the end of 2020, started his career by working to reduce diesel emissions that were harming miners deep underground, then the government paid for him to go back to school and earn a doctorate in particle science. He became the resident expert in silica dust, the airborne form of the mineral also called quartz, which is abundant in hard-rock mines. When inhaled, it can cause silicosis, an incurable lung disease that leads to severe breathing problems and sometimes to death. "When you're drilling and blasting and crushing these materials, you're going to have a lot of silica in the air, but you don't know how much, because there's no way to measure it easily," Miller said. "You can take a sample and send it to a lab, which is the current, standard way of doing it, but most people often don't bother to do that, because it's a pain in the butt and takes a long time. By the time they get the results back, it might not be meaningful to what they were doing the day that it happened." For years, Miller sought support to develop a portable, real-time silica monitor, similar to the gas monitors commonly worn by coal miners. He finally secured funding soon before he retired, and hired an engineer to continue the work. The project had made good progress, Miller said, but that work is "man-on-the-moon kind of research" that the mining industry won't fund on its own. "The private sector is dollar-driven," he said. "There's no way they're going to do it unless they absolutely know it's going to make money for them. Normally and historically, they're not motivated to do it." The work of preventing diseases like silicosis also falls on the public sector, Miller said, because the worst symptoms often don't emerge until years after a worker retires. While people can die from silicosis — 12,900 do each year, a 2019 study found — it more commonly causes disability and makes affected people more susceptive to other diseases, like tuberculosis. "They usually just have a horrible life and maybe die early, so it's not a real problem for the operator, for the mining guy," Miller said. "He's not going to see the ugliness of it. That's going to be when they're my age, and they're having trouble breathing, and they end up dying 10 years earlier than they otherwise would have. By then, they're long gone from where they worked, and there's no responsibility tied to the people who put them through that." Orion Donovan Smith's work is funded in part by members of the Spokane community via the Community Journalism and Civic Engagement Fund. This story can be republished by other organizations for free under a Creative Commons license. For more information on this, please contact our newspaper's managing editor.
