On May 25, 2023, in Sackett v. EPA, the United States Supreme Court redefined the scope of the Clean Water Act in defiance of the Act’s text, forty-five years of agency practice, and the Court’s own precedent. The ramifications of Sackett are frightening: at least fifty percent of wetlands in the United States may now be excluded from Clean Water Act jurisdiction. There is no doubt the Clean Water Act, including section 404, however limited it now is, remains critical for environmental protection. Yet Sackett is a wake-up call. Post-Sackett, we must look to other proven models of environmental conservation that use multiple legal tools, not just the Clean Water Act, to protect unique, vulnerable ecosystems. The Indiana Dunes National Park, from its establishment to the present day, is such a model. While the Court’s decision in Sackett may not directly affect wetlands protection within the confines of the Indiana Dunes National Park, the Indiana Dunes National Park is an effective model of using multiple legal tools—leasebacks, the Clean Water Act, and National Park Service unit designation—and citizen-activism to protect a vulnerable environment in close proximity to heavy industry.
The Indiana Dunes stretch along Indiana’s forty-five miles of Lake Michigan shoreline. Today, white sand beaches lined with smooth basalt pebbles, two-hundred-foot tall sand dunes moored in place by sharp-bladed marram grass, young forests, old forests, oak savannas, and low-lying bogs, swamps, fens, and marshes jostle for space with steel mills, the Port of Indiana-Burns Harbor, and other industrial development. A scant forty miles from downtown Chicago, the Indiana Dunes have drawn locals, Chicagoans, and tourists for over a century to recreate in Lake Michigan, on the beaches, and amongst the dunes.
So, too, have the Indiana Dunes drawn industrial development. Various industries sand-mined the dunes—literally removing individual sand dunes—from the 1850s to the early 1950s. Industrial ports along Lake Michigan’s southern shore received iron ore mined on Minnesota’s Iron Range, and steel mills in Illinois and northwest Indiana alike processed the ore. This industrial development leveled the sand dunes; polluted Lake Michigan and adjacent waterways; introduced invasive species into the Great Lakes; and fed the greater Chicagoland area’s massive population, economic, and cultural growth. Quite simply, the United States would not exist in its current form without this industrial and cultural development, yet this very development nearly destroyed the unique Indiana dunes ecosystem and endangered public health. Local activists and residents saw the region approaching a tipping point and stepped up to protect the remaining Indiana dunes ecosystem, even at the expense of their own property rights.
Their advocacy led Congress to create the Indiana Dunes National Lakeshore in 1966 expressly to preserve this unique environment. Because the land designated to become the Lakeshore was a mix of industrial private property and individually owned private property, Congress established a leaseback program in line with contemporaneous National Park Service land acquisition policy. Under the leaseback program, individuals whose property was within the Lakeshore’s boundaries, and therefore designated to be acquired by the Department of the Interior, could retain the right of use and occupancy for a twenty-five-year period. But the conservation efforts did not stop there, and neither did industrial encroachment. Residents of the Edgewater community—not included within the 1966 Lakeshore boundaries—on the far western edge of Porter County went so far as to lobby for their own community to be included in the 1976 expansion, knowing inclusion meant they would only have another twenty-five years in their own homes. Such was the dedication to conserving the Dunes and the desperation to stop additional industrial development. To be clear: Edgewater residents knowingly and willingly deprived themselves of their own private property rights to protect the Dunes and curtail the area’s continued industrial degradation.
The Indiana Dunes National Park now stretches along fifteen miles, or fully one-third, of Indiana’s Lake Michigan shoreline. Spanning some 15,000 acres, the Indiana Dunes National Park is the fifth most biodiverse national park in the United States. While the Indiana Dunes are, strictly speaking, land, the sand dunes themselves only exist because of water—they are the remnants of previous Lake Michigan shorelines from thousands of years ago. The entire dune ecosystem, from waterline through wetland through oak savanna, developed from and, indeed, relies upon interconnected waterflows within this environment. The towering sand dunes shelter extensive interdunal wetlands, and these wetland-sheltering sand dunes ease into sandy beaches along Lake Michigan. While the Park’s designation as a National Park Service unit protects the land and water within the Park’s boundaries, the Clean Water Act and other federal environmental statutes play a crucial role in protecting the water-based ecosystem within the Park by regulating water pollution in adjacent waterways.