As Illinois session ends, lawmakers’ attempt to reinstate wetland protections fails

As Illinois session ends, lawmakers’ attempt to reinstate wetland protections fails

by JENNIFER BAMBERG
Investigate Midwest
[email protected]

In 2006, 19-year-old Jessica Whinston inherited 20 acres of land that her grandparents once farmed in Quincy, Illinois. The land had sat dormant since the 1980s and was overgrown, but Whinston and her husband Bradley worked to turn it into a productive farm. The couple were eventually able to produce 100,000 pounds of vegetables a season.

In July 2015, a powerful storm tore through Quincy, downing massive trees and knocking out power for several counties. Seven and a half inches of rain fell in less than an hour, causing the creek behind the farm to overflow. Six feet of black water, inundated with chemical fertilizers and pesticides and runoff from animal operations nearby, flooded her fields.

“We lost everything,” said Whinston. “We didn’t have enough money to replant and we didn’t have any money to pay our mortgage. I just thought, ‘Well, that was it. We tried really hard and there’s no coming back from this.’”

Severe weather caused by climate change, such as more frequent flooding, was one issue Illinois lawmakers tried to address during this year’s legislative session, which ended May 29.

Lawmakers failed to bring up the Wetlands Protection Bill during the 103rd General Assembly, May 30, 2024. (Photo by Jennifer Bamberg, Investigate Midwest)

Among the bills that did not pass is a piece of legislation that sought to restore protections for wetlands stripped last year in a United States Supreme Court decision. In May 2023, federal protections for wetlands were gutted, weakening Clean Water Act protections for millions of acres of wetlands across the U.S.

An Illinois bill, SB 771, or the Wetlands Protection Act, that would have reinstated those protections in the state passed in committee, but failed to make it to the chamber floors of the General Assembly. The bill will be considered again during the veto session this fall.

“We’re definitely disappointed the legislature didn’t act right away,” said Jennifer Walling, executive director for the Illinois Environmental Council. “They need to. This is an election issue, and we could be in even worse shape with a different president.”

Sponsors of the bill said a law is needed for Illinois to fill the gap left by the Supreme Court decision. The reinstatement of regulations would ultimately help reduce flooding in vulnerable communities and improve water quality, proponents said.

One major opponent of the legislation was the Illinois Farm Bureau, which also signed onto the federal lawsuit that eventually reversed wetland protections. Chris Davis, the farm bureau’s director of state legislation, said its opposition stemmed from not enough protections for landowners.

“Illinois Farm Bureau agrees wetlands provide certain benefits and supports reasonable efforts to discourage their conversion,” Davis said in an emailed statement. “However, this should not mean that, in all instances, wetland conversion is unnecessary or that private landowners should solely bear the cost of protecting wetlands.”

Sen. Laura Ellman (D-Naperville), sponsor of the senate Wetlands Protection Bill, said that she’s still committed to working with the farm bureau this summer.

“I still want to engage with the farm bureau, in spite of them never being able to support the bill or probably even be neutral,” she said, “to help make our bill better and to serve their members, our Illinois farmers. They can still help make the bill better.”

House bill sponsor Rep. Anna Moeller (D-Elgin) did not return requests for comment.

For Liz Rupel, lead organizer with the Illinois Stewardship Alliance, the 2024 legislative season was “a mixed bag” when it comes to conservation in agriculture. While some conservation bills passed this legislative session, including increased funding for socially-disadvantaged farmers, more money for cover crop assistance programs, and funding toward planting native wetland and prairie plants, other bills that could have an impact did not pass, she said.

One of the “most devastating setbacks,” she said, is budget cuts for an important agricultural conservation program. The Soil and Water Conservation District’s operating budget was slashed in half. The organization provides technical assistance to farmers who implement conservation practices, like planting cover crops to prevent dust storms or installing or restoring a wetland on their property to prevent flooding.

Farm Bureau among the most vocal opponents of wetlands legislation

In 2022, the American Farm Bureau association, along with the Illinois farm bureau and 19 other state farm bureaus, filed an amicus curiae brief supporting the lawsuit against the Environmental Protection Agency to curtail federal Clean Water Act protections.

When the Supreme Court ruled to strip the Clean Water Act in May 2023, American Farm Bureau Federation President Zippy Duvall called it a victory and “a ​​powerful example of the strength of the Farm Bureau when we work together with a united voice on behalf of all farmers and ranchers.”

American Farm Bureau Federation president Zippy Duvall spoke at the organization’s 2022 annual convention in Atlanta, Georgia. (Photo provided by American Farm Bureau Federation)

This year’s proposed legislation would have reinstated past requirements – anyone who wants to build an industrial or residential development on a wetland must first obtain a permit from the Illinois Department of Natural Resources. Developers would have needed to pay a fee that would go toward mitigation — the restoration, establishment or enhancement of wetlands elsewhere to compensate for the impact of that development.

Farming and ranching is explicitly exempted from the bill’s oversight. Farm and stock ponds, irrigation ditches and minor agriculture drainage also would not have been subject to the legislation’s new regulations.

However, in a March 2024 radio interview broadcast on RFD Radio Network, Davis and farm bureau environmental policy director Sanjay Sofat, told listeners the state law would be disastrous for farmers.

“In a nutshell, if your neighbor doesn’t like the fact that you’re tilling a garden in your backyard, they can sue you,” Davis said. “They can make sure that you have (Illinois Department of Natural Resources) permits, and (the agency) can enter your land to explore what kind of activities and what kind of water accumulation you may have after a heavy rain.”

The definition of a wetland depends on who you ask. Legal definitions for the purposes of regulation and protection have often stood at odds with scientific definitions, and several federal and state departments have used different definitions since the 1950s.

The Supreme Court decision in 2023 dramatically narrowed the legal definition of wetlands. Now, it’s up to states to define and create their own regulations to protect the rest.

Kevin Semlow, executive director of governmental affairs and commodities for the Illinois Farm Bureau, however, wrote in an emailed statement to Investigate Midwest that despite amendments and changes from the original versions of the bill (SB 3669 and HB 5386), which included provisions on small streams, the proposed legislation is still too vague.

“We continue to hear that agriculture is exempt,” Semlow wrote, “but as with the creation of any legislation the devil is in the details. Our goal in the development of any legislative negotiation is to make sure the legislation is constructed in a way that provides clarity while protecting the rights of farmers to their land.”

Changing the tide of perception

Proponents of the bill said the farm bureau’s messaging is far from accurate.

“They are terrifying their members,” said Paul Botts, executive director and president of the Wetland Initiative.

According to Botts, a lot of the tension around wetland regulations and agricultural practices comes from a combination of culture, myths and misunderstanding.

“Many people in this country have the idea and have been told by authoritative voices that if a place becomes wet, it might legally now be officially a wetland,” Botts said. “That is utterly untrue, has never been true since we’ve had the concept of definitions of wetlands in law and science.”

Since 2013, the Wetland Initiative has worked with farmers to develop small wetlands on their land to treat agricultural runoff. He said the program has helped turn the tide around the perception of wetlands.

“At the Wetlands Initiative, some of the relatively younger farmers will often say, ‘My granddad can’t believe we’re talking about putting a wetland back on the farm.’ Because to granddad and his granddad that was the last thing in the world you’d ever do,” he added. “That’s a cultural thing.”

Draining the prairie

It took generations to transform the prairie in Illinois into productive farmland. Over the course of the last century, steel plows broke apart deep prairie grass roots, wetlands were dredged and filled in, and millions of linear feet of drainage tiles were installed under the land, completely changing the hydrology of the Mississippi River watershed.

Three quarters of the state is now farmland, and in 2023, 81% of that land was devoted to growing only two crops – corn and soy.

“The vast, tall grass prairie region — which has become the most productive farm belt in the world because it has spent millennia producing these amazingly flat and rich soils — was actually filled with wetlands and depended upon wetlands,” Botts said. “Prairie and wetlands are not distinct things at all in nature.”

The Illinois River watershed (shaded in light blue). This map shows an intricate network of tributaries that connect the Great Lakes to the Mississippi River and the Gulf of Mexico. This watershed contains the drainage basins of several of the state’s major rivers including the Des Plaines, Kankakee, Fox, Vermilion, Mackinaw, Spoon, Sangamon, and La Moine Rivers. map by the Illinois Scientific Survey

Despite advances in engineering and modern farming techniques, flooding can still be an issue. Wetlands act as natural flood control, according to the state’s Department of Natural Resources, but over the last two centuries, Illinois has lost 90% of them, primarily to farm land.

Flooded farmland in Gallatin County, Illinois, on April 12, 2024. photo by Jennifer Bamberg, Investigate Midwest

Many federal assistance programs, such as Federal Crop Insurance, dole out subsidies based on acreage, which incentivises farmers to plant on marginal land that might be better off left as is, advocates said.

Whinston, the Quincy farmer who lost a year’s worth of crops due to catastrophic flooding in 2015, started renting land from a neighbor in order to continue her business after the flood. She said she believes that flooding has increased in the creek behind her land due to the expansion of neighboring farms.

“Fields are getting bigger and bigger and equipment is getting bigger and bigger,” she said.

Eliot Clay, state programs director at Illinois Environmental Council, echoed this.

“There are actual incentives for (farmers) to take land that they otherwise wouldn’t have farmed on and try to convert it,” he said. “Unfortunately, farmers are put into this position where they feel like if they get this little chunk of land and try to make it productive, that it’s going to be better for them in the end. But ultimately, there’s all the environmental impacts that that causes.”

Increasingly accurate data, however, can help farmers see when it might be more financially smart to keep a wetland, or build one.

The average farm in Illinois, including hobby farms, is 370 acres. Botts from the Wetland Initiative said that data tools can help farmers see if there are any areas, typically in a corner or in a low spot of less than 20 acres, where farmers might actually be losing money trying to tame nature, and a wetland could increase their return on investment.

Still, asking a farmer to take any part of their farmland out of production can be a hard sell.

Vern LaGesse, a former* executive director of the Friends of the Sangamon Valley and steward of the Nipper Wildlife Sanctuary, said he tries to relay the importance of wetlands to farmers in ways they might relate to.

“If they like to hunt, I tell them it acts as a habitat for ducks and geese,” he said, “and then you’ve really got their attention.”

LaGesse oversaw the restoration of 120 acres of farmland outside of Springfield back into prairie and wetland habitat.

Vern LaGesse, a former* executive director of Friends of Sangamon Valley at the Nipper Wildlife Sanctuary, June 1, 2024. photo by Jennifer Bamberg

Starting in the early 2000s, LaGesse began to construct a series of wetlands at the Nipper Wildlife Sanctuary in Loami, Illinois. A team of volunteers later tested the waters over the course of three and a half years, and found that the wetlands filtered out 50% to 70% of phosphates and nitrates – the chemical byproducts of fertilizers – that entered the wetland from the corn and soy fields that surround it. He said that this aspect of wetlands can appeal to farmers as well.

Funding cuts for conservation assistance

Because the Clean Water Act exempts agricultural practices, there are no limits to the amount of fertilizers that can be applied to fields, or penalties for applying excessive amounts of fertilizer. Fertilizers from Midwestern agriculture run off of fields and make their way through drain tiles, ground water, streams and creeks into the Mississippi River, and eventually into the Gulf of Mexico.

A drain tile entering the South Lick Fork Creek north of Nipper Wildlife Sanctuary. According to USDA estimates, some 10 million acres, about 35% of the total agricultural area in the state, are tiled. These drainage systems have a significant effect on production agriculture and water quality of the watersheds in which they occur. photo by Jennifer Bamberg, Investigate Midwest

Illinois’ farms are a significant contributor to the “dead zone” in the Gulf, an oxygen starved area the size of Delaware and Rhode Island combined, that becomes uninhabitable to all marine life every summer.

In lieu of regulations, farmers voluntarily adopt conservation practices like cover crops or wetlands, and receive tax-payer funded federal and state subsidies.

But adoption of such practices has been slow in Illinois, and advocates worry that the state isn’t doing enough to encourage it. In 2022, only 3.3% of Illinois’ cropland grew cover crops, according to the U.S. Census of Agriculture.

One of the key organizations responsible for promoting voluntary conservation practices and supporting farmers with technical assistance when applying for them is the Soil and Water Conservation District.

The Association of Illinois Soil and Water Conservation Districts (AISWCD) headquarter in Springfield, Illinois. The AISWCD is a non-profit organization formed in 1948 to implement conservation practices, protect groundwater resources, conserve and restore wetlands/habitat, and work with other levels of government to manage Illinois’ land in an environmentally sensitive manner. photo by Jennifer Bamberg, Investigate Midwest

This legislative season, the state slashed the district’s operating budget in half.

The cuts come as the deadline for the state’s Nutrient Loss Reduction Strategy looms next year. In 2015, the coalition led by the Illinois Environmental Protection Agency, Illinois Department of Agriculture, and University of Illinois Extension, set goals to cut nutrient runoff by 45% by 2025.

The last estimate, published in 2023, however, found nitrate levels were up 4.8% and phosphorus by 35% compared to the baseline.

The cuts will have a direct impact on staffing and outreach, said Michael Woods, the district’s director. Local district chapters operate in every legislative district and county in the state, providing assistance to farmers on how to apply for federal programs, whether it’s no-till or cover crop programs, and rely on a team of staff members, who have built trust with farmers over the past several years.

“There is no other entity in the state of Illinois that has the grassroots level in all 102 counties other than the Soil and Water Conservation District,” Woods said. “It is the only entity in the state that has built a reputation, built up the workforce, the skill sets and connections to be able to transcend the differing perspectives of production agriculture and the environmental community.”

“My hope is that by investing in Soil Water Conservation Districts and those boots on the ground staff, we can fend off any potential legislation, or mandates that may be needed,” he added. “My hope is that producers will continue to see that there’s a need and a value to advancing those strategies. But that takes time, right?”

This article first appeared on Investigate Midwest and is republished here under a Creative Commons license.

Corrections:

Vern LaGesse is a former executive director of the Friends of the Sangamon Valley, an organization dedicated to protecting wetlands. The story and a photo cutline have been updated to reflect this information.

Sourcing & Methodology Statement:

Interviews and Statements

Jessica Whinston March 5, 6, 2024; June 4, 2024

Robert Hirschfeld, May 24, 2024

Jen Walling May 28, 2024

Eliot Clay May 28, 2024

Michael Woods May 28, 2024

Liz Rupel, May 30, 2024

Paul Botts, May 30, 2024

Vern LeGasse, June 1, 7, 2024

Illinois Sen. Ellman, June 7, 2024

Email statement from Illinois Farm Bureau, June 6, 7, 10, 2024

 

Reports and Documents

Illinois Senate Bill 771

Supreme Court decision in Sackett v. EPA, May 25, 2023

Amicus Brief for the Farm Bureau in Sackett v. EPA

Farm Bureau Brief as Amici Curiae in Support of Petitioners in Sackett v. EPA

Fact Sheet for the Agricultural Community on the Revised Definition of “Waters of the United States” , EPA, December 2022

Wetlands and Agriculture: Private Interests and Public Benefits, ERS USDA, 1998

FarmWeekNOW.com radio interview with Illinois Farm Bureau’s Sanjay Sofat and Chris Davis, March 29, 2024

Illinois Wetlands, IDNR

Smart wetlands

Illinois River Watershed, Illinois State Survey

Conservation Reserve Program, USDA

Environmental Quality Incentives Programs, NRCS USDA

Progress Report on Coordination for Nonpoint Source Measures in Hypoxia Task Force States, EPA, 2018

Illinois Nutrient Loss Reduction Strategy biennial report, 2023

Illinois River Watershed, Illinois State Water Survey

Tile drainage as a driver of streamflow flashiness in agricultural areas of the Midwest, Indiana University, 2023

USDA Census of Agricultural data, 2022

Nipper Wildlife Sanctuary Wetland Basins Hydrology and Water Quality Monitoring, Summary Report, 2021

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