Purposes and Cross-Purposes to Waterway Management

Waterways serve a multitude of public and private uses. Rivers, streams, and lakes supply water fordomestic and commercial purposes and serve important transportation, recreation, irrigation, natural, and aesthetic functions.

Where a resource serves a multiplicity of uses, conflicts are almost assured. Waterway management is a subject resulting in frequent and repeated conflicts. Ditching has opened fertile lands to agricultural production and facilitated residential and commercial development, but ditching can also result in increased flood stages, sedimentation, and water quality degradation. Flood control is essential to public health and safety, particularly in a developed society which enjoys the benefits of industrialization and current technology. Yet a project which provides flood control for one person may aggravate flooding problems for another.

Political structures may contribute to conflicts. Legislation traditionally has placed responsibility for drainage primarily at the local level, exercised through zoning and the Drainage Code. ⁸ Environmental concerns are likely to be protected through legislation exercised at the federal level orstate level (such as the Clean Water Act⁹ and the Flood Control Act¹⁰ ). Conflicts can arise when local, state, and federal agencies seek to regulate the same waterways, particularly when their statutory concerns are different. The perceived dichotomy between "local" drainage concerns and "state" environmental concerns was discussed by Indiana's high courts in Natural Resources Com'n v. Porter County Drainage Bd. ¹¹

Legislation often does not fully consider common law frameworks and the rights of neighboring property owners. For example, a project to straighten and widen a creek bed could help one landowner address immediate drainage problems. The project could also meet Flood Control Act permitting requirements since it will not raise (might even lower) flood stages in the immediate vicinity. Yet the project may still result in civil liability to a downstream property owner as a result of damages from increased water flow.¹²

Frustration by local drainage boards has been largely focused on the state level, particularly in the Indiana General Assembly. One possibility is that state agency participation in drainage issues may be reduced, perhaps defaulting to the federal structures. A benefit might be reduced governmental streamlining, but a detriment might be reduced environmental protection. If the resulting system pits federal environmental concerns against local drainage concerns, with the state acting merely as the agent for implementing federal mandates, the opportunities for achieving conflict resolution would appear to suffer further limitation.

Wetlands have been demonstrated to provide numerous benefits. During heavy rains, wetlands can store water and slow the flow of surface water. The economic benefits of wetlands for "flood control, drought mitigation, groundwater recharge, water quality, public and private water supply, and soil conservation are large. For example, wetlands help prevent costly flood and drought damage." ¹³ At the same time, wetlands can develop or redevelop in locations which damage agricultural production, impede new developments, or create health or safety hazards.

Wetlands play a major role in maintaining Indiana's water quality. Wetlands absorb excess inorganic and organic nutrients such as farm fertilizers and septic system runoff, and they filter sediments such as eroded soil particles. Wetland systems help stabilize shorelines and prevent soil erosion. "In addition, water taken for public water supplies require less expensive treatment if the water has been filtered by wetlands." ¹⁴ For example, the Lake County Soil and Water Conservation District utilized a grant to create a one-acre wetland near Wolf Lake in Hammond to treat highway runoff from the Indiana Toll Road. Previously, 24 acres of Toll Road runoff drained directly into the lake.¹⁵

Wetlands mitigation is one mechanism used to address use conflicts by allowing development in one area but requiring wetlands restoration or preservation in another. This process has its own issues: How much mitigation is appropriate or equitable? How is the worth of a destroyed wetland calculated? How is it determined whether a replacement wetland is comparable?

The breadth of uses to which wetlands may be put are not necessarily internally compatible. For example, the Indiana Department of Transportation creates wetlands for a variety of purposes. Generally, they are created as replacement for wetlands that have been destroyed by construction projects. When replacement wetlands are developed, they serve mainly as habitat. In these cases, highway runoff is often kept from entering the wetland because there is a potential for degradation from spills or pollutants. Less frequently, wetlands are created for water quality treatment or for holding floodwaters. If wetlands are established to provide habitat, usage for holding runoff is typically precluded. Wetlands designed primarily for holding runoff may provide only lower quality habitat.¹⁶

Functioning largely outside the regulatory structure for waterway management are common-law principles based upon contract or tort theories. Most prominent among these in the context of drainage is probably the "common enemy doctrine." According to this doctrine, a permit may, without creating any right to relief in an adversely affected neighbor, accelerate or increase the flow of surface water by limiting or eliminating ground absorption or changing the grade of the land. A landowner may not, however, throw or cast surface water upon a neighbor in unusual quantities so as to amplify the force at a particular point.¹⁷

Disputes under the "common enemy doctrine" or otherwise between users of surface water are typically left to the courts. A mechanism for mediation by the Indiana Natural Resources Commission is anticipated by statute¹⁸ but has never been implemented.¹⁹

The purposes and cross-purposes to waterway management are many. If resolutions are to be sought for conflicts among them, an overview of existing frameworks is needed.