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Legal Frameworks and Governmental Efforts


CURRENT PROGRAMS TO
MAINTAIN AND RESTORE
NATURAL AREAS


LEGAL FRAMEWORK AND
GOVERNMENTAL EFFORTS


Indiana Dunes National Lakeshore

Indiana Dunes National Lakeshore was established by Congressional action in 1966. Among its purposes was preservation for scenic and scientific purposes. The enactment provided that no development would be undertaken which would be incompatible with the preservation of "the unique flora and fauna" found on the site.
26

A pilot restoration project for the Great Marsh, Indiana Dunes National Lakeshore, is being funded by the Environmental Protection Agency and the National Park Service with technical assistance by the Indiana Geological Survey. The project involves detailed monitoring of hydrologic conditions and the development of a dynamic water balance for a 20-acre subwatershed of the Great Marsh in the vicinity of Beverly Shores. The watershed is instrumented to measure rainfall, infiltration, evapotranspiration, streamflow, and water levels in and adjacent to the restoration area. The goal is to determine the effects of a water control structure on water levels within the restoration target area. If water levels and associated hydroperiods can be properly manipulated, the Great Marsh could be restored to its pre-ditched condition and desirable aquatic plant species could be re-established.27


National Natural Landmarks

Areas that are considered nationally significant can be designated as National Natural Landmarks. The National Park Service administers this program to identify nationally significant natural areas that due to size are not practical as a national park. Landowners are notified of the significance of their site and urged to voluntarily protect their land. If an agreement is reached with the landowner, the landowner receives a plaque which identifies the area as a national natural Landmark. In northwest Indiana, National Natural Landmarks include Hoosier Prairie, Pinhook Bog, and Dunes Nature Preserve.
28


Pinhook Bog


Federal Endangered Species Act

The Endangered Species Act of 1973
29 provides for the conservation of ecosystems upon which threatened and endangered species of fish, wildlife, and plants depend, both through federal action and by encouraging the establishment of state programs. The enactment is administered by the U.S. Fish and Wildlife Service and is designed to do each of the following:
  • Determine and list species which are endangered and threatened.
  • Prohibit the unauthorized taking, possession, sale, or transport of endangered species.
  • Authorize land acquisition for the conservation of listed species, using land and water conservation funds.
  • Establish cooperative agreements and grants to states that establish and maintain active and adequate programs for endangered and threatened wildlife and plants.
  • Authorize the assessment of civil and criminal penalties for violating the statute or its regulations.
  • Authorize the payment of rewards to anyone furnishing information leading to arrest and conviction for any violation of the statute or regulations.

In July 1994, the Fish and Wildlife Service and the National Marine Fisheries Service jointly issued policies to "ensure that the highest quality scientific information is used to develop" activities relating to endangered species. "Since that time, listing proposals and draft recovery plans have been made subject to independent scientific peer review." In addition, "all final listing rules now state clearly which actions within the range of the listed species are or are not, likely to result in a 'take' of listed wildlife in violation of" the Endangered Species Act. A "no surprises" policy is designed to assure "private landowners participating in Habitat Conservation Plans (HCPs) that no additional requirements will be imposed on plan participants for species covered by that HCP."
A "safe harbor" program was developed by the U.S. Fish and Wildlife Service to encourage private landowners with assistance from qualified agencies to "develop a management program to be carried out on their lands for the benefit of listed species." A Safe Harbor Agreement is entered between the landowner and the Fish and Wildlife Service in which the agency issues to "the private landowner a permit for any future take of listed species above the existing conditions at the time of the agreement."

The U.S. Fish and Wildlife Service is seeking "to use Habitat Conservation Plans to ease the regulatory burdens" of the Endangered Species Act "on private landowners." A new handbook provides guidance for all aspects of the program, establishes a "low-effect" category with expedited approval procedures, increases intra-agency coordination, sets specific time periods for processing incidental take permit applications, and allows unlisted species to be referenced in a plan to expedite future permit amendments if a species is listed later.30


Natural Resource Damage Assessments

Liability for natural resources damages can be established through CERCLA,
31 the Clean Water Act,32 or the Oil Pollution Act of 1990.33 "Natural Resource damages" are defined as harm to the land, fish, wildlife, biota, air, water, ground water, drinking water supplies, and other resources belonging to or controlled by the United States, a state or local government, a foreign government, or an Indian tribe.

Pursuant to these statutory authorities, President Clinton designated the Regional Director of the United States Fish and Wildlife Service for Region 3 as its trustee for Indiana. Governor O'Bannon most recently designated Lori Kaplan of the Department of Natural Resources and Elizabeth Admire of the Indiana Department of Environmental Management as Indiana's co-trustees. Pursuant to a memorandum of understanding, the trustees pursue claims for damages resulting from the loss of or injuries to natural resources. The trustees also seek seek advice from the U.S. Department of Justice, U.S. Environmental Protection Agency, U.S. Coast Guard, U.S. Department of Commerce-NOAA, and the Indiana State Attorney General's Office. The trustees settle claims and pursue the restoration, rehabilitation, replacement, and acquisition of natural resources to replace those lost or injured.

Generally, in settlements with the trustees, the person responsible for causing the loss or injury of environmental resources may take action to replace the resources or may, instead, provide the trustees with financial compensation for the loss or injury. When final compensation is received, the trustees implement projects appropriate to the harm and the cited statutory violations. The statutes require persons to restore or replace equivalent natural resources, limiting and defining the ways and locations in which recovered amounts can be used.34

The trustees have settled several claims and are reviewing others in Indiana. A notable example is the September 1996 settlement in which Cerestar USA, Inc., the Keil Chemical Division of Ferro Corp., and Lever Brothers agreed to contribute $5.5 million to the Grand Calumet River Restoration Fund to dredge sediments and restore wetlands and habitat along the river.35

A broader initiative for the Grand Calumet River watershed resulted in a proposed assessment plan directed to several potentially responsible parties ("PRPs"). The proposed assessment plan was made available for public comment in October 1997. Currently, the trustees are reviewing the public comments to determine whether modifications should be made to the plan.36


Biological Diversity

GAP Analysis, Geographic Approach to Protection of Biological Diversity, continues to evolve as one approach to proactively addressing the issue of declining biodiversity on a national scale. GAP Analysis is conducted as state-level projects. The work is a cooperative effort among regional, state, and federal agencies as well as private groups. Forty states are participating in the effort. In Indiana, GAP Analysis is a geographic information system based methodology developed by the U.S. Fish and Wild life Service primarily to assess biodiversity on a continental scale. The analysis identifies the gaps in representation of biodiversity in areas managed for the long term maintenance of native species and natural ecosystems.
37

According to the Indiana GAP Analysis web site, "The Indiana GAP Analysis Project is nearing completion with all data layers in place. Analysis will begin in earnest over the winter of 1997 and 1998, along with accuracy assessment of the vegetation map and predicted vertebrate distribution data." The final report is to be completed in the spring of 1998.38

GAP Analysis began in Indiana in 1992 within the U.S. Fish and Wildlife Service Bloomington Field Office. The object of this process is more efficient and effective protection of the state's fish and wildlife resources. GAP Analysis in Indiana will employ a 1:24,000 scale and a five acre minimum mapping unit. Gap Analysis will have particular applicability to the ecosystem restoration work that is considered essential for the protection of biodiversity in Indiana. A pilot project is underway in Indiana at the Department of Army's 70,000 acre Jefferson Proving Ground.39

There are several potential mechanisms which can creatively be used to establish connecting corridors between fragmented habitats. A variety of examples are identified in the following paragraphs. In Indiana, a local subdivision control ordinance may require the inclusion of standards for the allocation of areas in new subdivisions to be used as public ways and parks.40 Greenbelts or buffer areas near development can also be incorporated in local planning efforts. In development of local zoning ordinance, counties and municipalities are given the responsibility to consider the varied needs of the community. In planning for "future development," the exercise of planning and zoning is expected to provide that "new communities grow only with adequate public way, utility, health, educational and recreational facilities." Residential areas are to be planned which "provide healthful surrounding for family life."41

The Habitat Subcommittee of the CARE Committee, explained in more detail in Water Quality, has worked with managers of utility, railroad, and other rights of way to use ecologically sensitive methods to maintain these corridors. The participants in this effort include NIPSCO, Amoco, Northern Indiana Commuter Transportation District, and The Nature Conservancy.42 The Indiana Department of Transportation and the Indiana Department of Natural Resources are cooperating on a project to determine where and what type of wildlife habitat may appropriately be maintained in rights of way of major roadways. The Indiana Department of Transportation encourages the use of vegetative species conducive to wildlife habitat development in areas which can be properly maintained and which do not pose safety hazards.43

Connecting corridors along waterways can be addressed through designation of a waterway as a natural river, scenic river, or recreational river which is discussed later in this chapter. Another method to establish a corridor along a waterway is through a tax incentive program administered by the Department of Natural Resources. Certain properties may be assessed and classified as wildlife or riparian areas and qualify for an assessment rate of $1 per acre, for general property taxation purposes. In order to qualify, a landowner must follow minimum standards of good wildlife management as prescribed by the DNR.44


Natural Heritage Data Center

The Natural Heritage Data Center was established in 1978 as a cooperative effort between the Department of Natural Resources and The Nature Conservancy. The Data Center collects and stores information on the status and distribution of outstanding natural communities, rare and endangered plants and animals and other natural features in a comprehensive information management system that includes both manual and computer files as well as topographic ma files. The inventory provides a process for identifying significant areas and setting preservation and acquisition priorities for the entire state. It also assists with land use planning and environmental review procedures.
45

Indiana Dunes State Park

Indiana Dunes State Park was established in 1925 based upon state enabling legislation enacted two years earlier. One of the first inclusions was "Mt. Tom (one of the great dunes)," included in a 110 acre tract purchased from John O. Bowers. Although condemnation was considered for development of the park, "the entire amount authorized by the law was acquired by negotiation at reasonable prices. The total cost of the Dunes Park lands was approximately $1,000,000." By 1930, the park had included 3 square miles of the "most picturesque part" of Indiana's dune region.
46


State Dedicated Nature Preserves

Indiana legislation pertaining to the dedication and development of "nature preserves" is set forth at IC 14-31-1. The administration of the program is overseen by the Division of Nature Preserves of the Department of Natural Resources, with notable participation by The Nature Conservancy and other nongovernmental organizations.

One of the stated purposes of the nature preserves legislation is to promote and assist in the restoration of natural areas which might ultimately qualify for dedication as nature preserves.
47 Currently, portions of nature preserves that have been significantly disturbed are targeted for restoration activities, if financial resources are available.48

The Division of Nature Preserves supports the reintroduction of extirpated species into the appropriate habitat. For example, the Division of Nature Preserves has reintroduced Mead's milkweed into a prairie in Lake County with the financial assistance of the U.S. Fish and Wildlife Service. The Division also promotes the use of native vegetation through public information articles and presentations.49


State Classified Native Forest Lands

The Division of Forestry of the Department of Natural Resources administers what is sometimes referenced as the "Classified Forest Act."50 This statutory chapter allows land to be set aside and managed as a forest in return for technical assistance and a general property tax assessment of $1 per acre.51 The statute references both areas which may be identified as native forest land and those which are forest tree plantations,52 although the two classifications are not differentiated either by statute or rule.


Endangered or Threatened Species

By Indiana law, a person ordinarily must not take, possess, transport, export, process, ship, or sell any species or subspecies of wildlife appearing on the list of Indiana indigenous wildlife determined to be endangered or on the U.S. list of endangered wildlife which was in effect in 1979.
53 "Wildlife" is defined to include any wild animal that is a mammal, bird, reptile, amphibian, fish, mollusk, crustacean, or
Dedicated Nature Preserves in Northwest Indiana other wild animal.54 Lists of endangered wildlife are set forth by rule.55 Indiana state law does not afford the same protection to rare and endangered plants as are afforded to wildlife, but the Indiana Natural Resources Commission has established an informal listing which includes both and which is entitled A Roster of Indiana Animals and Plants which are Extirpated, Endangered, Threatened, or Rare.56 The Department of Natural Resources is authorized to establish the programs, including acquisition of land or aquatic habitat, that are considered necessary for management of nongame species.57
Lake County Primary Manager
Clark and Pine DNR Nature Preserves
Cressmoor Prairie Shirley Heinze Fund
Gibson Woods Lake County Parks & Recreation Department
Hoosier Prairie DNR Nature Preserves
Liverpool DNR Nature Preserves
Tolleston Ridges Lake County Parks & Recreation Department
LaPorte County Primary Manager
Barker Woods The Nature Conservancy
Springfield Fen DNR Nature Preserves
Porter County Primary Manager
Dunes DNR State Park
Moraine DNR Nature Preserves



Glass Snake
Glass Snake
Karner Blue Butterfly
Karner Blue Butterfly


Sale of Native or Dangerous Reptiles and Amphibians

In 1997, the DNR issued an emergency rule to prohibit most sales of reptiles and amphibians which are native to Indiana, as well as the sale of nonnative species which pose dangers to the public because the species is poisonous or because the species can inflict harm due to its large adult size. According to DNR Director, Larry Macklin, "Sales of native reptiles and amphibians have dramatically increased recently, putting pressure on Indiana's natural reptile and amphibian populations. We want to protect these native species from over-collection because of the danger of species depletion or extinction, which would upset ecological balances."

In addition to protecting naturally-occurring species, the emergency rule sought to protect public health and safety by restricting the sale of dangerous reptiles and amphibians. Possession of dangerous reptiles and amphibians was not prohibited, but individual animals could not be sold in Indiana.

"In the long run," Macklin said, "preventing the sale of these animals will reduce the number of dangerous reptiles and amphibians in Indiana. Public safety is at risk when a dangerous species escapes from its owner or when firefighters and emergency workers must enter a building during emergency situations." Dangerous reptiles and amphibians were defined to include any venomous or poisonous snake, frog, toad, lizard or other species that had the ability to inflict serious injury on a person or other animal. Also, restricted was the sale of all crocodiles five feet or longer and lizards six feet or longer. Individuals were prohibited from selling any part of the animal, eggs, or offspring.58

Public hearings on permanent rules proposed by the Natural Resources Commission to address these issues were held in April 1998. Final action on the proposed permanent rules is expected before the end of 1998.59

Other Mechanisms to Protect Natural Areas

Indiana has adopted the "Uniform Conservation Easement Act" authorizing the voluntary transfer of a "conservation easement" for a variety of purposes. Among these purposes are: "(1) retaining or protecting natural, scenic, or open-space values of real property; (2) assuring its availability for agricultural, forest, recreational, or open-space use; (3) protecting natural resources; (4) maintaining or enhancing air or water quality; or (5) preserving the historical, architectural, archaeological, or cultural aspects of real property."
60 A conservation easement may be held by a governmental body or by a qualified charitable institution. A liberal approach is applied to the establishment of conservation easements, and the act provides flexibility in identifying in the easement who may enforce its terms.

Rivers and streams can be designated as a natural river, scenic river, or a recreational river. The designation provides for the establishment of a local commission to protect and improve natural and scenic qualities of the specified river in cooperation with the DNR. Where a local river commission exists, the natural or scenic qualities of the river may not be affected by a person without a permit from the river commission. The Big Blue River, Cedar Creek, and Wildcat Creek have been designated as part of Indiana's system. The Natural Resources Commission adopted a nonrule policy document, Outstanding Rivers List for Indiana61, which designates high quality rives in Indiana. Deep River is listed from one mile south of U.S. 30 to its mouth on the Little Calumet River.

The Indiana Heritage Trust was created by the General Assembly in 1992. The Trust is funded through the sale of Environmental License Plates. The Trust also seeks contributions from corporations, foundations, and individuals. The Trust uses the money to by land from willing sellers for new and existing state parks, state forests, nature preserves, fish and wildlife areas, trails and other areas.62

The Indiana Natural Heritage Protection Campaign is a cooperative fund raising effort designed to generate $10 million ($5 million of public appropriations to be matched by $5 million private contributions) for the acquisition and care of areas which qualify for the state nature preserve system63. Each dollar contributed by citizens, businesses, and philanthropic organizations are matched with an equal appropriation from the state legislature. The total acreage to be acquired in the campaign may not exceed 15,000 acres. Campaign purchases "may be made only from willing sellers."64

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