State and Local Initiatives
STATE AND LOCAL INITIATIVES
Most regulatory programs depend upon providing environmental or other social protections through controls established by licensing. Before an individual can engage in an activity, a license application must be completed which identifies the safeguards to be employed by the individual in conduct of the activity. These safeguards may include extensive testing, monitoring, bonding, consent to agency inspections, and a variety of other responsibilities. In addition, the applicant may be required to participate in a lengthy and costly notification process. While the costs associated with securing a license may be justified where complex environmental, health, or safety issues are presented, less rigorous and less costly approaches may be adequate in other circumstances.
One approach to streamlining licensing functions is the use of a "general permit." A "general permit" is one whose conditions are prescribed by the regulatory agency, typically in a written document. The general permit applies to a type of activity as opposed to a unique authorization sought by an individual applicant. A qualified person seeking authorization for an activity agrees to abide by the terms of the general permit; the person need not be subjected to the full rigors of the license application process. A general permit may, however, require some notification to the regulatory agency of the proposed activity.
One illustration of a "general permit" has been granted by the U.S. Army Corps under the Clean Water Act to perform Section 404 dredge and fill activities in wetlands smaller than one acre. A notification process which is potentially less demanding than a full permit is provided for wetlands larger than one acre but smaller than ten acres. The Army Corps refers to this form of general permit as a Anationwide permit."2
General permits ("statewide permits") are provided with respect to the Clean Water Act in Indiana at 327 IAC 15. Pursuant to this article, the Indiana Department of Environmental Management governs a variety of activities. Included are provisions for stormwater runoff associated with construction activities and with industrial activities. These are commonly referred to as "Rule 5" and "Rule 6," respectively.3
The Natural Resources Commission is authorized to adopt rules to exempt many construction activities from the full rigors of the permitting process, where those activities are found to pose "no more than a minimal potential for harm."4 Using this statutory authority, most temporary piers and similar structures placed by adjoining landowners on inland lakes are authorized by a general permit.5 Similarly, many utility lines may be placed across rivers and streams upon the submission of a notice letter to the agency, rather than the completion of the formal application process for floodways and navigable waterways.6
Primary Enforcement Authority ("Primacy")
Federal programs may be administered and enforced at the state or local level through a delegation process called "primary enforcement authority" or simply "primacy." This concept provides for closer communications between the regulatory agency and the regulated community than where administration is exclusively at the federal level, either in Washington D.C. or in a federal regional office.
For example, the Environmental Protection Agency and the US Army Corps are the federal agencies designated to administer the Clean Water Act, but primacy for many aspects of the CWA has been delegated to the Indiana Department of Environmental Management. 7
Section 404 of the Clean Water Act
A notable exception is authority for Section 404 discharges of dredged or fill materials into the waters of the United States remains with the Army Corps.8 Section 404 is typically administered in conjunction with Section 4019 which requires certification from the state in which a discharge originates that the discharge will comply with water quality standards. Currently in Indiana, the U.S. Army Corps administers Section 404 with an opportunity for comment by state and local agencies.10 Section 401 water quality certification is provided by the Indiana Department of Environmental Management. In effect, many activities require both a federal and a state permit.
One model which seeks to streamline this process, and at the same time shift many responsibilities from the federal to the state level, is through primacy. More commonly for Section 404 of the Clean Water Act, primacy is called A404 assumption." Two states have assumed primacy, Michigan in 1984 and New Jersey in 1993. During its October 1996 meeting, the Blue Ribbon Advisory Panel requested both of these state programs be reviewed as possible models for action in Indiana.
Two states, Michigan and New Jersey, have assumed primacy for Section 404 permits.11 These states now administer the individual and general permit program of Section 404, except for areas susceptible to Ainterstate or foreign commerce." To obtain primacy, a state is required to submit to the Environmental Protection Agency a Afull and complete description of the program it proposes to establish." The EPA reviews the description and determines whether a state has the legal authority and the ability to administer the program.12 The state must demonstrate that its law and program would be as stringent as the Army Corps program.13
If Indiana obtained primacy of Section 404 permits, federal oversight would be provided by the EPA. Federal review can be waived for the vast majority of permit applications, but federal agencies must review projects which impact critical environmental areas or which involve large amounts of fill.
Safe Drinking Water Act
Another federal program where primacy may be exercised by Indiana, but for which it has not been fully effectuated, is pursuant to the Safe Drinking Water Act (SDWA).14 The SDWA is directed to the protection of underground sources of drinking water and is administered through two programs: (1) the Safe Drinking Water Program; and, (2) the Underground Injection Control Program. Indiana and all other EPA Region 5 states exercise primary enforcement authority for the Safe Drinking Water Program.15
The Underground Injection Control Program serves functionally as the NPDES program for groundwater discharges.16 A different legislative philosophy for the SDWA causes its provisions to be more site-specific and less pervasive than the Clean Water Act. Federal regulations for the Underground Injection Control Program must "permit or provide for consideration of varying geological, hydrological, or historic conditions in different states and in different areas within a state."17
Five classes of wells are recognized under the Underground Injection Control Program. Class I wells are those which provide industrial, municipal, or hazardous waste disposal, beneath the deepest stratum containing a drinking water source within 3 mile of a well bore. Class II wells are those which provide the disposal of non-hazardous fluids brought to the surface in connection with oil and gas production or to increase the recovery of oil or gas. Class III wells are those for the injection of fluids for the solution mining of minerals. Class IV wells are for the disposal of hazardous or radioactive wastes into or above strata that contain a drinking water source located within 3 mile. Class V wells are other types of injection wells; these include air conditioning return flow wells, cooling water return flow wells, drainage wells, aquifer recharge wells, and sand backfill wells.18
The U.S. Environmental Protection Agency encourages states to seek primary enforcement authority for the Underground Injection Control Program.19 Indiana exercises primacy for Class II wells through the Division of Oil and Gas of the Department of Natural Resources.20 No Class II wells have been permitted in Northwest Indiana.21 Indiana has not obtained primary enforcement authority for Class I, Class III, Class IV, or Class V wells.
A state may seek primacy for Class II wells alone or for all five classes of wells. A state may not obtain primacy for a single class of wells (other than Class II wells), although it may prohibit some classes of wells and perform permitting functions for the others. As a result, Indiana might seek primacy for Class I and Class III through Class IV wells but could not seek primacy for fewer than these four classes, although it could choose to exercise permitting for some classes and to prohibit others.22
Within Region 5, the current status of primacy for the Underground Injection Control program is as follows:
ILLINOIS: Primacy over all Classes
INDIANA: Primacy over Class II wells only
MICHIGAN: No primacy
MINNESOTA: Seeking primacy for Class V wells (with a ban on other Classes)
OHIO: Primacy over all Classes
WISCONSIN: Primacy over Class V wells (with a ban on other Classes)
To be noted is that the geology in Minnesota and Wisconsin is not suitable to the development of Class I through Class IV wells.
State Boating Law Administrator
A third example is the regulation of aids to navigation (not involving interstate commerce) under which a "state administrator" may exercise primacy for the U.S. Coast Guard. In Indiana, the state administrator is located within the Division of Law Enforcement of the Department of Natural Resources.23
Special Purpose Regional Commissions and Districts
The Indiana General Assembly has created a variety of governmental or quasi-governmental units designed to provide coordinated services at a local or regional level. Without attempting to develop a complete listing, several examples are offered.
The Northwestern Indiana Regional Planning Commission (NIRPC) is a regional planning commission established by resolution of the three Indiana Lake Michigan shoreline counties. Regional planning commissions are authorized to Ainstitute and maintain a comprehensive policy planning and programming and coordinative management process for the region. It shall coordinate its activities with all units in the region and shall coordinate the planning programs of all units and the state."24 NIRPC functions as a council of governments. The NIRPC Board of Commissioners includes 35 representatives of local governments, most of whom are elected. The board meets regularly to discuss regional issues and adopt nonbinding policies. The Northwest Indiana Regional Planning Commission provides a staff of planning professionals in areas of environmental planning, transportation, and economic development. NIRPC administers staff support through contractual arrangements with other local commissions, including the Little Calumet River Basin Development Commission, the Lake Michigan Marina Development Commission, and the Kankakee River Basin Commission.25
The Little Calumet River Basin Commission was established to help manage the West Branch of the Little Calumet River and Burns Waterway in Porter and Lake Counties. Authorized activities include river channelization and maintenance, the construction of breakwaters,26 and in some areas, the development of park and recreational facilities and improvements.27
The Lake Michigan Marina Development Commission may consider "various plans and recommendations that are proposed concerning marina development" along the Indiana shoreline of Lake Michigan and its immediate tributaries. To implement these plans and recommendations, the LMMDC develops a comprehensive plan, may recommend state and local legislation for marina development, and coordinates the implementation of the plan and legislation.28 Membership on the LMMDC includes the mayors of Gary, Hammond, East Chicago, Portage, Michigan City, and Whiting, and nonvoting participation from the Indiana Department of Commerce and Indiana Department of Natural Resources.29
In December 1996, the LMMDC adopted a resolution to encourage streamlined regulatory processes. The LMMDC observed several state and federal regulatory programs have been developed to "assure environmental protection" but that rules adopted to implement programs have Aproduced an interconnected and interlocking web of regulations which on occasion can be overlapping, confusing, and contradictory." Through the resolution the LMMDC recommended an ad hoc committee involving local, state, and federal participation be formed to "explore and publish findings concerning the most effective means of streamlining regulatory functions for construction activities within Lake Michigan and its navigable tributaries."30
Other examples of basin commissions outside Lake, Porter, and LaPorte Counties include the St. Joseph River Basin Commission, a Amunicipal corporation" whose primary focus is water (particularly "water quality") and related land resources.31 The Kankakee River Basin Commission provides regional planning and is largely concerned with drainage issues.32 Flood control and good soil and water conservation practices are the primary purposes of the Maumee River Basin Commission.33
A "conservancy district" may be established for any combination of nine purposes: (1) flood control and prevention; (2) improved drainage; (3) providing irrigation; (4) providing water supply; (5) providing sewage collection and treatment; (6) developing forests, wildlife areas, parks, and recreational facilities if feasible in connection with beneficial water management; (7) preventing the loss of topsoil from water erosion; (8) water storage to augment stream flow; or (9) the operation, maintenance, and improvement of a work of improvement for water based recreational purposes or another work of improvement authorized by one of the eight other purposes. These purposes may be accomplished in cooperation with a federal or state agency.34 A municipality may, however, participate in a conservancy district only where its freeholders petition to be included and the municipality passes an ordinance electing to be included.35 Additionally, there are major logistical problems associated with attempting to establish a conservancy district for larger or multi-county regions.36
Another mechanism designed to provide coordinated services on a regional basis is through a regional water, sewage, or solid waste district. A district formed under this authority may serve one or any combination of the following purposes: (1) water supply for domestic, industrial, and public use; (2) collection, treatment, and disposal of sewage; and, (3) collection, treatment, and disposal of solid waste.37
A legislative initiative to regionalize solid waste management on a county or multi-county basis was developed in 1990.38 Each county was required to adopt an ordinance by July 1, 1991 to designate itself or to join with another county or counties to form a solid waste management district. All territory within the county or counties was included in the district. Each district prepared a solid waste management plan in conformance with a state plan which was developed by the Indiana Department of Environmental Management. This statewide plan seeks to reduce solid waste disposals by 50% by the year 2001.39 The districts were authorized to operate directly or to contract for the operation of solid waste management facilities. Powers not granted to a district included the power of eminent domain and the power to exclusively control the collection or disposal of solid waste within the district.40
Grand Calumet Area Partnership
In 1996, staff from different agencies and organizations met to think about ways to integrate multiple environmental planning efforts in the Grand Calumet area of Northwest Indiana. After one year of sorting through the initiatives the Grand Calumet Area Partnership was formed.
Partners share the long-term goal to clean and revitalize the environment of the Grand Calumet River. The Partnership is a voluntary effort and partners can change as the Partnership progresses toward the goal. The focus of the Partnership is the area in Lake County north of Interstate 80/94 to nearshore Lake Michigan and is bounded on the east by the Porter County border, and the Illinois border to the west.
One valuable tool that the Partnership uses is a matrix that identifies various initiatives and participants. The matrix is included below. The initiatives include all planning efforts within the geographic area. Members identified the agency or organization that leads an initiative, who participates, and who is an interested party. A glossary describes each effort and lists contact persons who lead the initiative. Adriane Esparza, Partnerships in the Grand Calumet Area, SHORELINES FOR COASTAL COORDINATION (Winter 1997). Contact Adriane Esparza, Executive Director of the East Chicago Waterway Management District, at 219-391-8535 for additional information.
NIRPC and Illinois Indiana Sea Grant Wetlands Conference
One frequently-cited example of regulatory overlap is wetlands managements. A number of federal, state, and local agencies exercise responsibilities with respect to this resources. A conference held in Portage in 1996, and cosponsored by the Northwestern Indiana Regional Planning Commission and the Illinois Indiana Sea Grant, sought to bring developers and environmentalists together to answer questions concerning wetlands regulation.41
State Law Drafting
In Indiana, the Legislative Council oversees the development of documentation pertaining to drafting of state laws, both statutes and agency rules. Included among this documentation are bills, enrolled acts, session laws, journals, the INDIANA CODE (state statutes), the INDIANA ADMINISTRATIVE CODE (state rules), and the INDIANA REGISTER. The Legislative Council consists of bipartisan membership from the Indiana Senate and the Indiana House of Representatives.42
Unlike the federal system where each annual enactment receives a popular name and citations frequently provide a reference to the UNITED STATES CODE, et al., with no ready method for determining the terminus of "et al." state citations are self-contained. A new or amended statute can be included within a title (example: IC 14), an article (example: IC 14-15), a chapter (example: IC 14-15-12), or a section (example: IC 14-15-12-8). Similarly, rules are designated by title (example: 410 IAC), an article (example: 410 IAC 6), a rule (example: 410 IAC 6-10), or a section (example: 410 IAC 6-10-5).
The day-to-day technical functions pertinent to bill drafting, statute codification, and rule drafting are performed for the Legislative Council by the Legislative Services Agency.43 Periodic recodification of state statutes is designed to consolidate statutory enactments in a fashion which is coherent and accessible. The recodification process addressed natural and cultural resources in 199544 and environmental programs in 1996.45 To help promote a format which is consistent, the Legislative Services Agency has printed and circulated a pamphlet to state agencies.46
Apart from these technical functions, there are several statutory enactments designed to help coordinate and make responsive the development of agencies and their regulatory programs. A legislative review process for state agencies is commonly called "sunset review."47 In effect, the process provides for analysis by the Legislative Services Agency and a summer committee of the Indiana General Assembly which follows an "evaluation of the agency's performance" and results in the continuation, reorganization, or termination of the agency.48 This process considers the effectiveness of the agency, including whether its functions continue to serve current needs.49
Rule making is governed by IC 4-22-2. With amendments effective in 1995, a "notice of intent to adopt a rule" must be published by the state agency in the INDIANA REGISTER at least 30 days before preliminary adoption. "The publication notice must include an overview of the intent and scope of the proposed rules and the statutory authority for its enactment." An agency is required to solicit comments on the need for a rule, the drafting of a rule, and any other subject related to rule making. The agency is required to prepare a written response that contains a summary of comments received during any part of the rulemaking process. "The written response is a public document. The agency shall make the written response available to interested parties upon request."50
After a proposed rule is published in the Indiana Register, the agency conducts a public hearing. "The agency may conduct the public hearing in any informal manner that allows for an orderly presentation of comments and avoids undue repetition. However, the agency shall afford any person attending the public hearing an adequate opportunity to comment on the agency's proposed rule through the presentation of oral and written facts or argument."51
In addition, the Indiana Economic Development Council Amay review and comment on any proposed rule and may suggest alternatives to reduce the regulatory burden that the proposed rule imposes on businesses." An agency must also inform the Legislative Services Agency if a proposed rule would have an estimated economic impact greater than $500,000 Aon the regulated entities." The Legislative Services Agency then prepares a fiscal analysis concerning the effect that compliance would have on the state and the regulated entities.52
The Attorney General of Indiana reviews each rule for legality before the rule becomes law. In the review, the Attorney General considers whether it may "constitute the taking of property without just compensation to an owner." The Attorney General advises the Governor and the agency if a taking of property is found to occur.53
Indiana Drainage Code and Clean Water Act
The Indiana General Assembly has established a process for coordination among county drainage boards, the Indiana Department of Environmental Management, and the Department of Natural Resources relative to the reconstruction and maintenance of regulated drains. The Clean Water Act is cross-referenced, and provision is made for on-site inspections by IDEM and the DNR to mitigate any unreasonable or detrimental effects from a drainage project.54
Indiana Environmental Protection Act
In 1972, the Indiana General Assembly declared that "it is the continuing policy of the State of Indiana, in cooperation with the federal and local governments, and other concerned public and private organizations, to use all practicable means. . . to create and maintain conditions under which man and nature can exist in productive harmony, and fulfill the social, economic, and other requirements of present and future generations of Indiana citizens."55 This enactment has been called "Indiana's Environmental Policy Act" (or "IEPA").56 Though lacking many of the mandatory elements of NEPA, its federal counterpart, IEPA does reflect upon a continuing "responsibility of the state" to "improve and coordinate state plans" do the following:
"Single Point of Contact"
The Indiana State Budget Agency is the "Single Point of Contact" for state agencies and local units of government to review applications for federal funds before a federal agency takes action.58 Many, but not all, federal programs are subject to this notice process. In addition, certain federally required state plans and other nonapplication documents (for example, environmental assessments) are subject to the process.59