Clean Water Act
Safe Drinking Water Act
Rivers and Harbors Act
Boat Discharges: Marine Sanitation, Graywater, Ballast Water, and Bilge Water
Clean Vessel Act
Great Lakes Water Quality Agreement
Great Lakes Initiative (GLI)
Northwest Indiana Environmental Initiative Action Plan
General State Water Quality Laws
Water Pollution Control Board Boards
Marine Sanitation and Marina Pumpout Stations
Confined Feeding Operations
Funding and Technical Assistance
Watershed Management Opportunities
FEDERAL, STATE, AND LOCAL FRAMEWORKS FOR WATER QUALITY MANAGEMENT
Several federal enactments provide for water quality management. A few of the more important statutes, and those which have particular application to Lake Michigan and Northwest Indiana, are highlighted here:
Clean Water Act
The most pervasive federal water quality program is the Clean Water Act. The jurisdiction of the CWA extends to all waters of the United States. The basic structure of the CWA has been characterized as consisting of "one primary operative prohibition, and the rest of the Act essentially provides exceptions to this prohibition. ‘[T]he discharge of any pollutant by any person shall be unlawful,' except where the discharge is in compliance with certain lawful exceptions."59
Water quality goals of the Clean Water Act provide a foundation for the standards to be set by states. The goals aim to achieve "protection and propagation of fish, shellfish and wildlife" as well as "recreation in and on the water." The focus of this standard is generally not the protection of human health but on recreational uses. The Clean Water Act's approach to establishment of discharge limits includes three methods: (1) require effluent to be treated to the limits of available or practicable technology; (2) require a discharge by limits so as to maintain a specified level of quality in a stream which is suitable for maintenance of a balanced population of fish, shellfish and wildlife for water contact criteria; or (3) limit of the discharge necessary to minimize health or other risks such as toxicity.60 States are to review and can revise or adopt water quality standards at least once every three years to ensure that state standards attain the goal of fishable and swimmable waters.61
A target of the Clean Water Act62 is the control of pollution discharges from point sources, known as the end-of-pipe strategy. A point source for pollution is one which comes from any discrete conveyance, such as a pipe, ditch, conduit, well, concentrated animal feeding operation, or watercraft. A point source may be classified as direct or indirect, with direct passing immediately into waters of the United States and indirect first passing through a publicly owned treatment plant. Nonpoint sources include storm water runoff and diffused waters flowing into waterways.63
At least in principle, the Clean Water Act applies to federal facilities and may be enforced by a state against a federal agency. Section 313 of the Clean Water Act makes federal facilities subject to state and local environmental requirements, and there have been instances where state law was found applicability to a federal facility. For example, the Navy was required to obtain a shoreline development permit from the state of Washington.64 "[T]he CWA and RCRA obligate a federal polluter, like any other, to obtain permits from EPA or the state permitting agency," although federal facilities are generally immune from "punitive" (as opposed to coercive) civil fines.65
An area of some disagreement is the application of the Clean Water Act to groundwater. That "navigable waters" is a phrase equivalent to "waters of the United States" has typically focused the CWA upon surface waters.66 In 1971, the House of Representatives rejected an amendment to clarify that "navigable waters" extended to groundwater,67 and EPA has disclaimed jurisdiction under the CWA to regulate subsurface disposals directly.68
On the other hand, the discharge of chemical wastes by United States Steel into a deep well in Gary was found to require an NPDES permit. A conference committee report on Senate Bill 2770, which provided 1972 amendments to the CWA, was cited by the court as being persuasive. "The Conferees intend that. . . no injection or disposal occur in such a manner as to present a potential hazard to ground water quality."69 Another federal court has held that "navigable waters" under the Clean Water Act includes groundwater that is hydrologically connected to surface water.70
Safe Drinking Water Act
Whatever may be the application of the Clean Water Act to groundwater, the Safe Drinking Water Act (SDWA)71 is specifically directed to the protection of underground sources of drinking water. Within the SDWA, the Underground Injection Control (UIC) program serves functionally as the NPDES program for groundwater discharges.72 A different legislative philosophy for the SDWA causes its provisions to be more site-specific and less pervasive than the CWA. Federal regulations for the UIC program must "permit or provide for consideration of varying geological, hydrological, or historical conditions in different states and in different areas within a state" and, to the extent feasible, must "avoid promulgation of requirements which would unnecessarily disrupt state underground injection control programs."73
Five classes of wells are recognized. Class I wells are those which provide industrial, municipal, or hazardous waste disposal, beneath the deepest stratum containing a drinking water source within ¼ 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 within ¼ 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.74
The Safe Drinking Water Act regulates the drinking water produced by public water supply systems. Initially the 1974 act required the monitoring and regulation of 22 different water contaminants. Amendments to the SDWA made in 1986 added 86 additional contaminants to those covered by the act and required, by 1991, that public water systems conduct a monitoring program for a variety of unregulated contaminants.75
For the most part, the Safe Drinking Water Act is administered in Indiana directly through the Environmental Protection Agency, although the Indiana Department of Environmental Management is the designated state agency for SDWA issues.76 In other words, there is an apparent state legal foundation for IDEM to exercise primary enforcement authority for the Safe Drinking Water Act, but Indiana has not elected to pursue primacy of this program. One exception is that primacy for permitting and enforcement for Class II wells (pertaining to injection and salt water disposal in association with petroleum production) is within the jurisdiction of the Department of Natural Resources.77 No Class II wells have been permitted in Northwest Indiana.78
Rivers and Harbors Act
The Rivers and Harbors Appropriations Act of 189979 is administered by the U.S. Army Corps of Engineers and the Environmental Protection Agency. Probably the best known aspects of the enactment are the permitting requirements established for dredging and filling of navigable waterways.80
The act also prohibits the discharge of "refuse" from a ship.81 "Refuse" is broadly defined and has been found by the courts to include such diverse materials as taconite tailings into Lake Superior,82 sludge,83 and ammonia, suspended solids, and grease and oil.84
A little-known amendment contained within the "Rivers and Harbors Act of 1910" has peculiar application to Chicago and Lake County, Indiana. Causing or allowing "any refuse or procure" to be placed into Lake Michigan was made unlawful within eight miles from shore of Chicago or Lake County. Exceptions were provided for "flows in a liquid state from streets or sewers" and material placed "inside of a breakwater so arranged as not to permit the escape of such refuge material into the body of the lake."85
Discharges from Boats on Lake Michigan
Four principal types of water are found onboard vessels: (1) "Waste water" may be taken onboard for sanitary systems or ballast water. This water may be derived from a freshwater or saltwater source and must be disposed at another source, often distant from its origin. (2) "Potable water" may be used for drinking, showers, cooking, and galley washing. The latter uses may result in potable water becoming what is sometimes called "gray water." (3) "Engine room water" includes cooling water and boiler make-up water. This water may be discharged at greater than ambient temperatures but is generally considered to be quickly diffused and cooled following discharge. (4) "Incidental water" includes rainwater and spray from waves on the deck, and it also includes bilge water.86
Although state law generally governs boat discharges of waste water on inland lakes and streams,87 federal law governs Lake Michigan and the other Great Lakes. Federal law also provides basic standards for vessel manufacture.
Since 1975, a vessel manufacturer which includes onboard toilet facilities has been required to connect the facilities to a marine sanitation device. A marine sanitation device is equipment "designed to receive, retain, treat, or discharge sewage, and any process to treat such sewage." A person may not operate a vessel "with installed toilets" unless the vessel is equipped with an approved marine sanitation device, and unless the device has been certified through the U.S. Coast Guard as being in good operating condition.88
On the Great Lakes, a marine sanitation device (or "MSD") may allow for discharge. "If a device has a discharge, . . . . the effluent shall not have a fecal coliform bacterial count of greater than 1,000 per 100 milliliters nor visible floating solids." This standard became effective in 1977 for new vessels and in 1980 for existing vessels. A state may completely prohibit the discharge from all vessels of any sewage "into some or all of the waters within such State" by making a written application to the EPA. Upon the receipt of an application, the EPA must determine whether "adequate facilities for the safe and sanitary removal and treatment of sewage from all vessels using such waters are reasonably available."89
The use of marine sanitation devices, and the federal laws governing them, has been a subject of some interest to Indiana's Healthy Beaches Initiative and the Interagency Task Force onE. coli.90 During a 1997 National Healthy Beaches Symposium in Chesterton, sponsored jointly by the task force and Illinois-Indiana Sea Grant, the U.S. Coast Guard provided a technical and legal primer on the function and federal regulation of MSDs. See Giacoma and Reeves, Making Sure That What Comes Out of the Ships doesn't Stink: Marine Sanitation Devices In The Great Lakes.91 Jim Perkins, Director of Marine Services for the St. Lawrence Seaway Authority of Canada, reported recently to the task force concerning new requirements for ships coming through the locks. Effective July 1, 1998, these vessels must comply with Seaway Notice No. 7 (Marine Sanitation Devices) which provides for compliance testing upon entry and spot testing within the Great Lakes. In addition, Seaway Notice No. 7 prohibits the use of portable toilets on the vessels. The Lake Carriers' Association also supports a voluntary compliance program for the 56 commercial ships in its organization which operate exclusively within the Great Lakes.92
An informal meeting was held in Chicago in June 1998 to discuss how best to advise state policymakers as to the impact of Type I and Type II marine sanitation devices on water quality in sourthern Lake Michigan. Included were representatives of the Illinois Environmental Protection Agency, the Illinois State Boating Law Administrator, IDEM, the Indiana State Boating Law Administrator, and the NRC. Participants determined a better understanding was needed as to the proper functioning of MSDs, how and by whom discharges from MSDs are monitored and enforced, and the frequency of enforcement activities within Lake Michigan and the other Great Lakes. To improve this understanding, the Great Lakes Commission was requested to sponsor a workshop on these subjects to include regulatory authorities and the regulated community. The GLC adopted a favorable resolution on the workshop during its October 1998 meeting in Buffalo, New York.
The discharge of "sewage from vessels" is excluded from the requirements for NPDES permits. "Sewage from vessels" means human body wastes and the wastes from toilets and other receptacles intended to receive or retain body wastes that are discharged from vessels and regulated by the Clean Water Act. For commercial vessels on Lake Michigan, the term also includes galley, bath, and shower water (sometimes collectively called "graywater").93
Water or another heavy material is placed as "ballast" in the hold of large vessels to improve their stability. The weight contained in the hold must be varied depending on cargo. "Ballasting requires taking on vast amounts of water. On the 1,000 footers, the ballast tanks have a combined capacity of more than 14 million gallons. Even on the smaller ships the ballast tanks hold anywhere from 2.5 million to 5 million gallons."94
The U.S. Coast Guard has adopted regulations to control the release of ballast water from vessels entering the Great Lakes. The "most practical method of helping to protect the Great Lakes from foreign organisms that may exist in discharged ballast water is the exchange of ballast water in the open ocean, beyond the continental shelf. Water in the open ocean contains organisms that are adapted to physical, chemical, and biological conditions (such as high salinity) of the ocean. These organisms will not, or are unlikely to, survive if introduced into a freshwater system."95 M. Eric Reeves provides a discussion of the potential for biological contamination from ballast water, and the federal regulatory effort directed to controlling the potential, in Protection of the Great Lakes from Infection by Exotic Organisms in Ballast Water.96
Incidental water includes bilge water, rainwater, and lake spray. Bilge water accumulates in a vessel, whether the vessel is constructed of steel or wood, "as a result of sweat or minor weeping of rivets and seams." The customary practice is "for the ship's carpenter to sound the bilges at least once a day," and the failure to do so may constitute negligence.97 Environmental regulations do not generally address bilge water, at least when vessels are not in port. Similarly, rainwater and spray from lake or ocean waves may accumulate in a vessel. This type of water either flows from the decks or is actively pumped out in accordance with the International Convention for the Prevention of Pollution from Ships (MARPOL).98
Clean Vessel Act
The Clean Vessel Act of 1992 (CVA) was enacted by Congress with findings that the discharge of untreated sewage is prohibited by federal law in navigable waters of the United States, but that there are an insufficient number of pumpout stations to accommodate marine sanitation devices operated on recreational watercraft. Congress also found that "Sewage discharged by recreational vessels because of an inadequate number of pumpout stations is a substantial contributor to localized degradation of water quality in the United States."99
The CVA required Great Lakes states and other coastal states to perform surveys concerning the number and location of all pumpout stations and waste reception facilities at public and private marinas, mooring areas, docks, and other boating access facilities with navigable waters. In addition, the survey was to identify the number of recreational vessels in the state's coastal waters with type III marine sanitation devices or portable toilets, and the areas of the coastal waters where the boats congregate.100 Coastal states were required to develop and submit a plan for any construction or renovation of a pumpout facility in accordance with guidance from the Secretary of the Interior. Matching federal funds were also provided to assist the states in this effort.101
The primary funding source for the Clean Vessel Act is the Sport Fish and Restoration Account of the Aquatic Resources Trust Fund, also known as the Wallop-Beaux Fund. Revenues generated from motor boat fuel taxes have also contributed to the fund. Grants are awarded on a competitive basis and will reimburse 75% of the costs of construction. Education and outreach for boaters regarding the problems resulting from the discharge of sewage from boats can also be funded.102
In Indiana, Clean Vessel Act funding is administered by the Indiana Department of Environmental Management. Grant monies totaling $48,156 were allotted to Indiana in 1993 to conduct a survey of existing pumpout facilities and to develop a plan for building facilities. In 1994, IDEM requested $104,700 to build eleven pumpout stations and to implement an education program. Awards were made under a 1995 grant for the construction of pumpout stations. Recipients in Northwest Indiana include the Hammond Port Authority in Hammond, Lefty's Coho Landing in Portage, Miller Chapter of the Izaak Walton League in Portage, Pastrick Marina in East Chicago, and the Portage Municipal Marina.103 Application information can be found at http://www.dnr.state.in.us/lakemich/waterqua.htm.
Great Lakes Water Quality Agreement
The United States and Canada signed a Protocol in 1987 promising to report on progress and calling on the International Joint Commission to review "Remedial Actions Plans" for "Areas of Concern." Acting in furtherance of the Protocol, the commission designated Areas of Concern around the Great Lake where the objectives of the Great Lakes Water Quality Agreement were not met. The Remedial Action Plans or RAPs are prepared by governments and communities to clean up sites and promote sustainable development in the region.104
The Indiana Department of Environmental Management is preparing the RAP for Indiana's Area of Concern located in Lake County including the Grand Calumet River, the Indiana Harbor and Ship Canal, and nearshore Lake Michigan. The Citizens Advisory for the Remediation of the Environment (CARE) Committee is a citizens advisory group appointed by the Commissioner of the Department of Environmental Management to assist with the development of the plan. Currently Indiana is completing Phase Two of the plan, preparation of which calls for the development of remedial strategies. Phase Three will implement the RAP.
The Protocol also designates the International Joint Commission as the entity to review "Lakewide Management Plans" or LaMPs that propose actions to improve the water quality in the five Great Lakes.105 The United States government has the full responsibility of developing the LaMP for Lake Michigan. The LaMP is to reduce both loadings and ambient levels of "Critical Pollutants" in order to restore beneficial uses of the Lake waters. Critical Pollutants are "substances that persist at levels that, singly or in synergistic or additive combination, are causing, or are likely to cause, impairment of beneficial uses despite past application of regulatory controls due to their: (i) presence in open lake waters; (ii) ability to cause or contribute to a failure to meet Agreement objectives through their recognized threat to human health and aquatic life; or (iii) ability to bioaccumulate."106
Critical Pollutants identified in the Lake Michigan LaMP include total PCBs, dieldrin, chlordane, DDT and metabolites, mercury, dioxins, and furans. Pollutants of concern identified in the LaMP include lead, cadmium, copper, zinc, chromium, arsenic, cyanide, hexachlorobenzene, toxaphene, and PAHs. An emerging pollutant identified by the LaMP is atrazine. A Critical Pollutant Work Group has developed a process for listing and delisting substances as LaMP pollutants. The work group participants include technical staff from the U.S. Environmental Protection Agency, U.S. Fish and Wildlife Service, U.S. Geological Survey, and the surrounding Lake Michigan States. Indiana's participation in the LaMP is through the Indiana Department of Environmental Management.
Great Lakes Initiative (GLI)
To further the goals of the Great Lakes Water Quality Agreement, and to promote State consistency, the Council of Great Lakes Governors determined in 1989 to participate with the Environmental Protection Agency in the Great Lakes Water Quality Initiative. This effort is also known as the Great Lakes Initiative or GLI.
Goals of the GLI include: (1) providing assurance that the unique water quality protection needs of the Great Lakes are addressed in all the laws and regulatory activities of the eight Great Lakes States; (2) leveling the playing field by providing uniform criteria and a uniform level of protection across the basin for toxic substances; (3) providing the basis for U.S. negotiations with Canada on updating water quality objectives in the Great Lakes Water Quality Agreement; and (4) establishing a foundation for virtually eliminating the discharge of bioaccumulative toxic substances into the Great Lakes.
In 1990, Congress codified the GLI into the Clean Water Act and incorporated a schedule for GLI activities under the Great Lakes Critical Programs Act. EPA was required to propose a guidance, take public comments, and publish a final guidance. The act also required the Great Lakes States to adopt State water quality standards consistent with the guidance within two years after the final guidance was published.
In March 1995, EPA published its final guidance to implement the GLI. The document has water quality criteria for 29 pollutants to protect aquatic life, wildlife, and human health. The document details methodologies to develop criteria for additional pollutants and implementation procedures for more consistent water quality-based effluent limitation in discharge permits. The document establishes maximum daily loads of pollutants that can be allowed to reach the Great Lakes and their tributaries from all sources, as well as antidegradation policies and procedures. Short-term emphasis is placed on bioaccumulative toxic substances. The document also helps establish minimum requirements for Remedial Action Plans ("RAPs") and Lakewide Management Plans ("LaMPs"). Indiana and other Great Lakes States were to incorporate provisions in their water quality standards and National Pollutant Discharge Elimination System permit programs by March 23, 1997.
The Water Pollution Control Board published its first notice of comment period with respect to rule adoption for Indiana implementation of the GLI in June 1995. In 1995 and 1996, IDEM held public meetings in northern Indiana and Indianapolis to review the GLI and determine its implementation in Indiana. Following the conclusion of those meetings, IDEM caused its second notice to be published in June 1996. Public hearings were conducted on the rules later that year, and in early 1997 the GLI was, in large part, adopted at 327 IAC 2-1.5 as the "Water Quality Standards Applicable to All State Waters Within the Great Lakes System." Among the provisions contained in the first series of final rules are those (1) outlining water quality goals; (2) setting antidegradation principles; (3) describing surface water use designations; (4) listing bioaccumulative chemicals of concern; (5) providing general mixing zone guidelines; (6) delineating minimum surface water quality criteria; (6) providing interim ground water quality standards; (7) determining Tier I and Tier II aquatic life criteria; (8) determining bioaccumulation factors; (9) outlining human health criteria and values; (10) providing wildlife criteria; (11) addressing variances from water quality standards for point sources; and (12) setting general standards for designation as a limited use water or an outstanding state resource water. Other elements of Indiana's response to the GLI are currently being developed.
Triennial Review and Special Designation
The Indiana Department of Environmental Management has initiated a new rulemaking to review the state's water quality standards ("triennial review"), as well as to develop a list of water bodies within the state eligible to receive special designation. A workgroup consisting of representatives from the regulated community environmental groups, citizen groups, academia, state agencies, and Region 5 of E.P.A. was established in early 1997 and has met several times to help in development of these rules.
Following a number of workshop discussions, IDEM has focused upon the preparation of a draft rule. Included are special designations of waterways which are "outstanding state resource waters" or "outstanding national resource waters." These waters would receive protection above and beyond the standards generally applicable to Indiana lakes, rivers, and streams. Other elements within the draft would address antidegradation standards and procedures, as well as other state water quality standards. IDEM maintains a webpage directed to these issues at www.ai.org/idem/owm/planbr/wqs/trirev.htm.
Additional information concerning the workgroup or the rulemaking process can be obtained through Terry Lewis at (317) 233-8544.107
IDEM recently published a nonrule policy document to assist in the interpretation of "significant lowering of water quality" for the purpose of applying the antidegradation requirements for outstanding state resource waters in the Lake Michigan and Lake Erie watersheds. The policy is separated into two parts, one for discharges into tributaries of the Indiana portion of Lake Michigan and the other for discharges into Cedar Creek (a tributary of the St. Joseph River) and waters within Indiana Dunes National Lakeshore.108
Total Maximum Daily Load Program
Under Section 303(d) requirements of the CWA, states must identify waters of the state that do not meet water quality standards. The Indiana Department of Environmental Management has recently submitted a list of waterways in Indiana to EPA. The listed waters are to be included in the Total Maximum Daily Load (TMDL) Program. The purpose of the program is to identify remaining sources of pollution and determine maximum pollutant loads allowed in places where water quality goals are still not being achieved.109
Northwest Indiana Environmental Initiative Action Plan
In addition to the Remedial Action Plan (RAP) and the Lakewide Management Plan (LaMP), being prepared for several reasons including the remediation of polluted waters and to prevent further degradation of Lake Michigan, the Northwest Indiana Environmental Initiative Action Plan is being developed. The Environmental Protection Agency and the Indiana Department of Environmental Management are developing a strategy to improve air quality; clean up contaminated sediments in the Indiana Harbor Ship Canal and Grand Calumet River; remediate and restore contaminated lands and ground water; promote pollution prevention; attain high compliance with state and federal environmental laws; and continue to develop and implement the RAP and the LaMP. The Action Plan addresses the area north of US 30 in Lake County; north of US 30 west of Valparaiso and north of State Route 2 east of Valparaiso in Porter County; and in LaPorte County, the area north of SR 2.
A notable state role is for the implementation and enforcement of federal legislation. Primary enforcement authority (or "primacy"110) is enjoyed by Indiana for provisions of the Clean Water Act, Safe Drinking Water Act, and other federal programs. In addition, several pertinent state statutes exist which are independent of or supplement federal mandates.
Indiana Water Quality Laws
The Indiana General Assembly has provided broad authority to protect against processes or systems likely to result in water quality degradation. As a general prescription, a person may not throw, drain, allow to seep, or otherwise dispose of an organic or inorganic matter that contributes to the pollution of streams or waters of Indiana.111
The state agency primarily responsible for water quality protection is the Indiana Department of Environmental Management. IDEM is designated as the water pollution agency for Indiana under the federal Clean Water Act112 and the federal Safe Drinking Water Act.113 IDEM may (1) cooperate with federal agencies, state agencies, and other interested parties in all matters relating to water pollution, including the development of programs for eliminating or reducing pollution and improving the sanitary condition of waters; (2) apply for grants under the Clean Water Act; (3) approve projects under the Clean Water Act; (4) participate in proceedings under the Clean Water Act; (5) consent to the U.S. Attorney General to bring suits to abate pollution; and, (6) consent to joinder as a defendant in a lawsuit seeking pollution abatement.114
IDEM policy with respect to water quality is articulated through the Water Pollution Control Board. The board has broad discretion to adopt rules to control possible water quality degradation. Included is the authority to adopt rules for the "control and prevention of pollution in waters of Indiana with any substance" that is deleterious to public health or which may adversely affect any fish or beneficial animal or vegetable life.115 The board may adopt rules needed to implement the Clean Water Act or the federal Safe Drinking Water Act.116
The Water Pollution Control Board may adopt rules to determine what qualities or properties of water indicate a polluted condition in any streams or waters of Indiana that is (1) deleterious to public health or the conduct of a lawful occupation; (2) by which agriculture, floriculture, or horticulture may be injured; (3) by which the livestock industry may be injured; (4) "by which any lawful use of any waters by the state or by any person may be lessened or impaired or materially interfered with;" or, (5) by which any fish or beneficial animal or vegetable life may be injured.117 The board may also adopt rules restricting the polluting content of any waste material and polluting substances discharged or sought to be discharged into any stream or waters of Indiana.118
Based upon this authority, the Water Pollution Control Board has adopted a policy of nondegradation of water quality applicable to all surface waters which provides that "existing beneficial uses shall be maintained and protected. No degradation of water quality shall be permitted which would interfere with or become injurious to existing and potential uses." Surface waters whose existing quality exceeded minimum standards set on February 17, 1977 must be maintained at that level unless it is affirmatively demonstrated to IDEM that "limited degradation of such waters is justifiable on the basis of necessary economic or social factors and will not interfere with or become injurious to any beneficial uses made of, or presently possible, in such waters." Several "waters of high quality" were designated which must be maintained in the high quality existing in 1977 "without degradation." Included among these waters of high quality are the Indiana portion of Lake Michigan and the waters within the Indiana Dunes National Lakeshore.119
Rules address a number of specified activities with processes or systems which could result in water quality degradation. Among these are wastewater treatment facilities,120 industrial wastewater pretreatment programs,121 land application of sludge and wastewater,122 and public water supply.123 Basic NPDES general permit rule requirements apply to stormwater runoff associated with construction activity, stormwater discharge associated with industrial activity, facilities discharging noncontact cooling water, wastewater discharge associated with petroleum products terminals, wastewater discharge associated with ground water petroleum remediation systems, wastewater discharge associated with hydrostatic testing of commercial pipelines, and wastewater discharge from facilities engaged in sand or gravel operations.124
Public Water Supplies
A permit is required from IDEM for the construction, installation, or modification of sources, facilities, and equipment associated with a public water supply,125 including water distribution systems. Plans and specifications for the construction, installation, or modification of facilities for a public water supply must accompany a permit application.126 Plans must demonstrate the proposed facility is satisfactory in terms of sanitary quality, chemical quality, and adequacy of public water supply.127
In 1986, the federal Safe Drinking Water Act required states to develop and implement a Wellhead Protection Program. In 1989, the Indiana General Assembly authorized the Water Pollution Control Board to adopt rules to help protect the state's public drinking water supplies by managing sources of contamination overlying the ground water sources. From this charge IDEM developed a Wellhead Protection Program which became effective in 1997.
The Wellhead Protection Program Document describes Indiana's policy toward preventing contamination within the area contributing water to a public water supply system well. Prevention is addressed through activities performed by state, federal and local government and actions by a public water supply system well. The Wellhead Protection128 Rule outlines the activities required to be performed by the public water supply system to develop a local Wellhead Protection Program.
Nonpoint and Other Diffuse Sources of Water Pollution
Many of the laws which seek generally to control water quality degradation also have application to activities which may result in nonpoint or diffuse sources of water pollution. A few others warrant specific notice.
The Indiana General Assembly has set a policy with respect to the protection of both land and water resources which can result from agricultural runoff. "[L]and and water resources of Indiana are among the basic assets of Indiana." Their proper protection and promotion is necessary to the health, safety, and general welfare of the people of Indiana. The policy reflects that "improper land use practices and failure to control and use rainfall and runoff water cause and contribute to the deterioration and waste of these resources." The loss of "natural grass, plant, and forest cover has interfered with the natural factors of soil stabilization, causing loosening of soil and exhaustion of humus and developing a soil condition that favors excessive runoff and erosion." As a consequence, topsoil is being "washed out of fields and pastures," there is an acceleration of washing from sloping fields, and there is a loss of valuable topsoil. In addition, "valuable water resources are being lost causing damages in watersheds."129
The Soil Conservation Board was established within IDNR to address concerns for improper land use practices. Among the duties of the board are the coordination of erosion and sediment reduction programs that affect water quality.130 In this role, the board is to work with other state agencies, federal agencies, and local soil and water conservation districts. The districts have numerous responsibilities to address land and water resource protection, including action as an agent of the state or United States to acquire, construct, operate, or administer any soil and water conservation, erosion control, water quality protection, flood prevention, or outdoor recreation project within the district boundaries.131 The Soil Conservation Board is also authorized to develop a statewide regulatory program "after all reasonable voluntary approaches to erosion and sediment reduction have been exhausted."132
In 1992, the Water Pollution Control Board adopted a multi-section rule to address stormwater runoff associated with construction activities. Commonly referred to as "Rule 5,"133 its stated purpose is to reduce sediments and other pollutants which result from soil erosion in stormwater discharges from sites where construction activity disturbs at least five acres.134 Construction activities include clearing, grading, excavation, and other land-disturbing activities.135 Rule 5 provides a general permit and does not apply where a person obtains a specific NPDES permit for the construction activity. Conditions of the general permit provide for the development by the operator of an erosion control plan, with appropriate vegetative practices and the placement of erosion control measures (such as sediment detention basins) prepared in accordance with design criteria.136
The Water Pollution Control Board may also adopt rules or nonrule policy documents concerning the construction and operation of confined feeding operations. A manure management plan must accompany a permit for a confined feeding facility and may require the operator to comply with the governing statutory chapter, rules adopted under the chapter, water pollution control statutes, and rules adopted under water pollution control statutes.137
Laws which establish regulatory programs not directed primarily to water quality protection may also serve an important role in the control of nonpoint source pollution. For example, the State Chemist and the Indiana Pesticide Review Board are responsible for the registration, sale, transport, use, and application of pesticides. By rule, the board may establish a list of "restricted use pesticides" and "pesticides for use by prescription only" for the state or for designated areas of the state, if the board finds restrictions on sale, distribution, or usage are needed to prevent undue hazards to persons, animals, wildlife, lands, or waters.138
Another example is the law which governs private land which is managed as a classified forest.139 Rules apply to lands classified after June 30, 1990 and require that any such site be maintained: (1) according to a management plan; (2) to prevent excessive erosion and to control the deposition of sediments off-site; and, (3) to maintain a healthy forest environment.140
Marine Sanitation and Marina Pumpout Stations
A person may not operate a boat on public waters of Indiana, if the boat has a water closet or toilet, unless the water closet or toilet is equipped with a holding tank with the capacity to store waste for later disposal at an approved shoreside facility or treatment system approved by the Indiana Department of Environmental Management. The disposal of sewage accumulated in a holding tank or another container on a boat is prohibited if the sewage would or may reach public waters, except through a sewage disposal facility approved by IDEM rules.141
In Indiana, the Natural Resources Commission has also addressed pumpout stations within marinas. A "marina" was defined as a permanent structure which can service at least five boats at a time and which provides, for a fee, engine fuel, docks, boat repair, boats sale, or boat rentals. Beginning in 1992, no new marina would be permitted on the state's navigable waters to accommodate boats equipped with a wastewater holding tank, unless either:
(1) The marina operator obtains a permit from the Indiana Department of Environmental Management under 327 IAC 3-2 for the construction and operation of a wastewater treatment facility or a sanitary sewer. If there is a point source discharge from the wastewater treatment facility, an NPDES permit is required under 327 IAC 5.
(2) The marina operator obtains a permit from the Indiana State Department of Health under 410 IAC 6-10 for the construction of a commercial on-site disposal facility.
Effective January 1, 1996, the requirement also became applicable to all existing marinas.142
Confined Feeding Operations
Confined feeding operations are the only type of agricultural production operation regulated by the Environmental Protection Agency under the NPDES program of the Clean Water Act.143 In Indiana, primary enforcement authority for the program rests with the Indiana Department of Environmental Management.
A "confined feeding operation" (CFO) means any of the following:
Any confined feeding of at least:
(1) 300 cattle
(2) 600 swine or sheep
(3) 30,000 fowl
Any animal feeding operation electing to be subject to the confined feeding operations chapter (IC 13-18-10).
Any animal feeding operation that is causing a violation of either:
(1) water pollution control laws; or
(2) any rules of the water pollution control board.144
Confined feeding refers to the activity of managed feeding of animals for food, fur, or pleasure purposes, in a manner other than grazing and within control structures such as buildings, lots, ponds, or pens. The confined feeding operations chapter has been viewed as a major step towards assuring that, for livestock and poultry operations meeting the jurisdictional minimums or at which water quality violations have occurred, operators are required to (1) build adequate waste storage facilities for manure and feedlot runoff; and (2) provide adequate acreage to accommodate timely and proper manure disposal by land application.145
Heritage Environmental Services and the Department of Natural Resources recently funded a study to identify the impact of unregulated animal feedlots on streams. The study was set in Putnam County and reported that fish communities downstream from animal feedlots "were occasionally absent and usually degraded." The headwaters downstream from feedlots "contained fewer fish and a limited number of species of fish, predominantly creek chub and bluntnose minnow." According to the study, "[a]mmonia concentration, turbidity, and conductivity usually decreased with distance downstream from animal feedlots and the fish
communities improved, but did not usually reach ‘normal' levels even when ammonia was reduced to background levels." The study urged that the negative environmental impacts "could be reduced in many instances by instituting cost-effective practices recommended by several" agencies, including fencing to restrict animal access to streams, the placement of wetlands to "provide low cost, low upkeep water treatment," and the restoration of forested riparian wetlands at some locations.146
Indiana has developed a pretreatment program for industrial wastewaters that are discharged to a municipal sewage treatment facility. The program is designed to reduce concentrations of toxic or harmful substances to "safe" levels before releasing them to the sewer system. The standards for pretreatment find their origin in section 307(b) and 307(c) of the Clean Water Act. The requirements may also be included in the NPDES permit issued to the publicly owned treatment facility.147
Standards for residential sewage disposal are set forth by148 the Indiana State Department of Health by rule. Incorporated within the rule are on-site disposal systems for one or two family dwellings, including sewers, septic tanks, soil absorption systems, temporary sewage holding tanks, and private vault privies.149 The rule provides minimum capacity requirements for septic tanks, piping specifications, soil absorption directives, and soil horizon minimums. There must be a sufficient area for a system, and a site must have a slope of less than 15%.150 Lake County, LaPorte County, and Porter County also have sewage disposal ordinances designed to address localized soil-type limitations for septic systems.151
A "drywell" is a concrete tank, perforated on the sides and bottom. Spillover from a septic tank drains directly into a shallow drywell, from which effluent seeps readily into the surrounding ground.
Because aquifers can become polluted by the seepage from drywells, their use is prohibited for new construction, and for system repair if the drywell is to extend more than 48 inches below the ground surface.152
"Commercial on-site wastewater disposal facilities" refers to the equipment needed "for proper conduction, collection, storage, treatment, and on-site disposal of wastewater from other than one-or-two family dwellings." Included in the phrase are septic tanks.153 The maintenance of commercial facilities is also regulated by the Indiana State Department of Health and typically requires a permit.154 A permit may be revoked if the facility cannot "consistently treat and dispose of all wastewater received for the life of the facilities it serves, without causing a health hazard, nuisance, surface water pollution or ground water pollution."155 The requirements for the installation of on-site sewage disposal systems serving commercial facilities are as stringent as those serving residences.156
Funding and Technical Assistance
Soil and Water Conservation Districts (SWCD) are available to provide technical assistance regarding erosion and nonpoint source issues. An SWCD is a sub-unit of state government responsible for soil and water conservation programs within its designated boundaries.157 Usually the boundaries are the same as the county boundaries although the boundaries are not required to be identical. Five supervisors (three elected and two appointed) manage the SWCD. The supervisors evaluate local needs, set priorities, and develop programs to meet soil and water conservation needs within the county. SWCDs are funded through state and county appropriations, SWCD money making activities, and private donations.158
Sections 319 and 314 of the Clean Water Act provide funds for grants to address nonpoint source pollution and are administered at the State level by the Indiana Department of Environmental Management, Office of Water Management, Nonpoint Source Section.159
The Section 319 program provides assistance to be matched for various voluntary projects throughout the state. The focus of these projects has been on such tasks as the adoption of best management practices, watershed restoration activities, pollution prevention activities and education and technical assistance. Eligibility for Section 319 funding is limited to governmental units (such as cities, towns, counties, and state agencies) or nonprofit organizations (such as universities and citizen conservation groups).
The Clean Waters Program160 provides financial assistance to states for assessing the water quality, diagnosing the causes of degradation, developing lake restoration and protection plans, implementing these plans and monitoring restoration effectiveness of publicly owned lakes. This program, known in Indiana as the "Clean Lakes Program" is administered by the Indiana Department of Natural Resources. The federal grant monies are made available to public and not-for-profit organizations, agencies, and universities that can provide the necessary match for these funds.161 IDEM also administers Section 604(b) funds for water quality management planning and Section 104(b)(3) for watershed management, both grant programs are authorized by the Clean Water Act.
The Indiana Department of Natural Resources administers the state T by 2000 program to address effects of erosion in watersheds. The program is carried out locally through SWCDs which work with the IDNR Division of Soil Conservation, the Natural Resources Conservation Service, and the Purdue University Cooperative Extension Service to resolve sedimentation problems through volunteer monitoring efforts and public information and education activities.162 In addition, the "T by 2000 Lake and River Enhancement" program is administered by the Division of Soil Conservation to reduce sediments and nutrients entering lakes and streams. Qualified projects include study, design and construction activities in a lake or stream, land treatment practices within the contributing watershed, or both. A fund to support these eligible projects was created from the boat excise tax.163
The Environmental Quality Incentive Program, authorized under the 1996 Farm Bill, is jointly administered by the USDA Natural Resource Conservation Service (NRCS) and the Farm Services Agency (FSA). The program provides funding to address natural resource concerns such as soil erosion and water quality degradation on agricultural land.164
The EQIP is voluntary. Farmers interested in the program enter contracts based on resource management plans they develop with assistance from the NRCS and which are approved by the local conservation district. Funding in the amount of $2,525,000 was allocated to Indiana for 1998 and $1,822,755 is slated for priority areas in the state. Lake and St. Joseph Counties have been designated as priority areas for the program. The remaining $702,245 is for Statewide resource concerns.
The Indiana State Revolving Fund (SRF) offers low interest loans to qualified communities for the planning, design, and construction of publicly-owned wastewater treatment works for the purpose of pollution abatement. The SRF is a financial assistance opportunity created by Congress to replace the Federal Construction Grants Program. The program is managed jointly by the Indiana Department of Environmental Management (IDEM) and the State Budget Agency.165
Communities eligible to participate in the SRF program include incorporated cities and towns, counties, sanitary districts, conservancy districts, and sewer/waste districts with an existing need for [publicly-owned] wastewater treatment works.
The 1995 session of the General Assembly passed Senate Bill 66 to provide a three tiered interest rate policy for the SRF program. The new policy allows the SRF program to be more affordable to communities. The interest rate available to a community is based on the median household income (MHI) of the service area. In addition, a community may be eligible for 0% interest for up to two years depending upon the communities' median household income. The interest rate policy is outlined in the table below:166
||Median Household Income (MHI)
||greater than 100% of the State non-metropolitan MHI > $31,242
||greater than 80% up to and including 100% of the State non-metropolitan MHI over $24,994 but <= $31,242
||less than or equal to 80% of the State non-metropolitan MHI $24,994
* Interest rates will remain in effect at least until the proceeds of the currently outstanding revenue bonds have been fully committed.
To date, the SRF program has closed over $155 million in loans to communities ranging in population from 232 to 127,272. Currently, the SRF program has 43 communities on the Project Priority List.
A publication titled Authority for Local Stormwater User Fees in Indiana has been developed by the Indiana University/Purdue University Indianapolis, School of Public and Environmental Affairs, Center for Urban Policy and the Environment. The document was prepared to assist municipalities in Indiana that are grappling with how to pay for improvements to existing Stormwater systems. The concept of stormwater user fees and options for adapting fee systems that exist under current Indiana law are explained.167
There are several initiatives to promote stream stewardship at the local level. Volunteer monitoring programs contribute to the collection of data to be used by agencies and universities to look at water quality issues. The Hoosier Riverwatch is administered by the Indiana Department of Natural Resources, Division of Soil Conservation. Water samples are collected in rivers and streams by volunteers of middle school through college age groups. Data is used for watershed planning, local decision making, problem identification, education, and enforcement. The Indiana Volunteer Lake Monitoring Program is a component of the Indiana Department of Environmental Management's Indiana Clean Lakes Program. The monitoring program is administered by the School of Public and Environmental Affairs at Indiana University. Lakes, ponds, and reservoirs are monitored for several water quality parameters. The data that is collected is used for local decision making, research, problem identification, education , water classification, and 305(b) reporting. Other programs in Indiana include Save our Streams with the Izaak Walton League, Water Watchers of Indiana in the St. Joseph River basin affiliated with the Illinois Rivers Project, and Wildcat Guardians Stream Quality Monitoring Program on the Wildcat River. Monitoring programs that are on-going in other states have been compiled by the U.S. Environmental Protection Agency in the National Directory of Volunteer Environmental Monitoring Programs.
Watershed Management Opportunities
Approaching water quality issues on a watershed basis is one comprehensive technique for improving water quality. Several opportunities for assistance with watershed planning are available.
Funding available through the Clean Water Act, known as Section 104(b), has already been mentioned in this chapter. The funds can be used to develop watershed management planning efforts, as well as education and information for the implementation of these projects. The Watershed Protection and Flood Prevention Act primarily administered by the Natural Resource Conservation Service, can also be a source of funding for projects supporting watershed management.168
Two examples of existing processes which bring together watershed residents to develop a consensus-based plan include (1) Coordinated Resource Management and (2) The River Work Book. These processes are intended to assist landowners with the development of a watershed plan, to provide technical expertise, and, in some instances, financial assistance from government agencies. Efforts underway to develop and implement watershed plans include Trail Creek, Salt Creek (Monroe Reservoir), Flat Rock River, Upper Wabash River, Tippecanoe River, and Upper Laughery Creek.
The establishment of a conservancy district is an existing mechanism by which issues can be addressed on a watershed basis. A conservancy district can be established for any combination of nine purposes: (1) flood prevention and control; (2) improving drainage; (3) providing for 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, or improvement of a work of improvement for water based recreation or another work of improvement authorized by one of the other eight purposes. The district is authorized to levy taxes on real property within the district to implement the district plan to carry out the designated purpose.169