Federal Emergency Management Agency
National Flood Insurance Program
Storm Disasters

Flood Plain Management

Water Shortage Plan
Water Resource Management
Groundwater Emergencies
Surface Water Emergencies
Lake Protection Legislation
Conservancy Districts
Little Calumet River Basin Development Commission
Flood Control Revolving Loan Fund

Although not as pervasive as water quality legislation, there are state enactments which address water quantity issues. Most laws governing water quantity management are of state rather than federal origin, but there is an important federal presence. Indiana statutes directed to flooding and other issues of excess water have existed for more than 50 years. Statutes directed to water deficiencies are generally of more recent derivation.


Federal Programs and the State and Local Response

Federal Emergency Management Agency

The Federal Emergency Management Agency was created in 1978. The agency is responsible for administering several programs including the National Flood Insurance Program and Disaster Assistance. In addition, the agency functions include advising on building codes and floodplain management; teaching people how to get through a disaster; coordinating federal response to a disaster; making disaster assistance available to states, communities, businesses, and individuals; training emergency managers; supporting the nation's fire service; and administering the national flood and crime insurance programs.⁴⁴


National Flood Insurance Program

Congress established the National Flood Insurance Program (NFIP) through the National Flood Insurance Act of 1968. The program was broadened and modified with the passage of the Flood Disaster Protection Act of 1973 and other legislative measures. The intent of the program was to mitigate against potential losses through an insurance mechanism that allows a premium to be paid for the protection by those who need the protection. The NFIP is administered by the Federal Emergency Management Agency at the federal level. At the state level in Indiana, the NFIP is administered by the Division of Water of the Department of Natural Resources.


Storm Disasters

The Disaster Relief Act of 1973 was amended in 1988 as the Robert T. Stafford Disaster Relief and Emergency Assistance Act.⁴⁵ The Stafford Act is a mechanism through which the federal government can provide assistance for both public and private losses sustained due to disaster events. Primarily the assistance is available to supplement state and local government resources for post-disaster mitigation projects.

The request for declaration of a major disaster by the President must be made by the Governor of the state in which a disaster occurs. If the Governor requests federal disaster assistance, the Federal Emergency Management Agency (FEMA) and the state conduct a joint preliminary damage assessment to determine the extent of the damages and whether federal assistance is needed. A "major disaster" is a natural catastrophe "which in the determination of the President causes damage of sufficient severity and magnitude to warrant major disaster assistance."⁴⁶ The Stafford Act also authorizes a variety of FEMA disaster assistance programs which fall into three categories: individual assistance, public assistance, and hazard mitigation assistance.

Under the Indiana Emergency Management and Disaster Law,⁴⁷ "each county shall maintain a county emergency management advisory council and a county emergency management organization or participate in an interjurisdictional disaster agency." A county emergency management advisory council may "exercise general supervision and control over the emergency management and disaster program of the county."⁴⁸

Lake, LaPorte, and Porter Counties maintain emergency management and disaster plans. The plans do not specifically address severe storm disasters associated with the shoreline of Lake Michigan. Lake County is in the process of updating its plan.⁴⁹ LaPorte County updated its emergency plan in 1993.⁵⁰ Porter County is in the final stages of updating its plan.⁵¹ The State Emergency Management Agency will, upon request, assist local entities in revising emergency management and disaster plans.⁵²



The Great Lakes Storm Damage Reporting System (GLSDRS) is a long-term data collection and research project of the Chicago District of the Army Corps. The system is designed to maintain data in order to quantify the impacts of erosion and flooding on residential riparian properties along the Great Lakes.⁵³


State Flood Control and Drainage Laws

Flood Plain Management

A rare state statutory declaration of intent accompanies the Flood Control Act.⁵⁴ The Indiana General Assembly has found that the "loss of lives and property caused by floods and the damage resulting from floods is a matter of deep concern to Indiana affecting the life, health, and convenience of the people and the protection of property." Flood control works, structures, and the alteration of waterways are sought to be regulated and designed according to sound engineering practices in order to minimize flooding problems.⁵⁵

A permit is required from the Department of Natural Resources before a person erects a structure or places fill in a floodway. The permit can be issued only if the applicant demonstrates the intended activity will not "[a]dversely affect the efficiency of or unduly restrict the capacity of the floodway" or "constitute an unreasonable hazard to the safety of life or property."⁵⁶ In determining whether to grant a permit, the cumulative effects of a project or projects upon the floodway are also to be considered.⁵⁷ The construction of a new "abode or place of residence" within a floodway is prohibited, although the repair or reconstruction of a lawful existing residence may be permitted under some circumstances.⁵⁸

The Flood Control Act is supplemented by the Flood Plain Management Act.⁵⁹ While the Flood Control Act is administered by the Department of Natural Resources and has application exclusively to the floodway, the Flood Plain Management Act is administered at the local level and may apply to the entire flood plain. The "floodway" refers to the channel of a river or stream needed to efficiently carry and discharge flood flows during a 100-year frequency flood. The "flood plain" is the entire area covered by flood waters, including the floodway.⁶⁰



The Flood Plain Management Act is concerned primarily with regulating construction activities within a "flood hazard area," the portion of the flood plain which is not adequately protected by dikes, levees, and similar structures. Counties and municipalities are encouraged to delineate flood hazard areas through ordinances which are no less restrictive than the minimum standards which the Natural Resources Commission sets by rule.⁶¹

Along the Lake Michigan shoreline, 13 communities and the unincorporated areas of Lake, Porter, and LaPorte counties are participating in the regular phase of the National Flood Insurance Program. The regular phase involves the agreement by the communities to adopt special regulations regarding development activities in their respective designated special flood hazard areas. The shoreline communities participating in the program have adopted ordinances that are filed with the Indiana Department of Natural Resources, Division of Water. In Lake County, participating shoreline communities include East Chicago, Gary, Hammond, Whiting, and Lake County Unincorporated. Participating communities in Porter County include Burns Harbor, Portage, Ogden Dunes, Dune Acres, Porter, Beverly Shores, and Porter County Unincorporated. LaPorte County communities include Michigan City, Michiana Shores, Long Beach, and LaPorte County Unincorporated. There have been at total of 367 claims made by the 13 communities since 1978. ⁶²

Generally the local ordinance requires regulation of new development in identified special flood hazard areas within the communities. New development activities include building, excavating, filling, or construction of an addition to an existing structure. The lowest floor of a building is required to be two feet above the base flood elevation. Most communities follow the suggested classification of activities regarded as substantial improvements in special flood hazard areas. Substantial improvements are those that would incur a cost of 50% or more of the structure's value prior to the improvement. The communities of East Chicago and Dune Acres, however, are more restrictive in their ordinances which designate 40% or more of the existing structures value as a substantial improvement.

The National Flood Insurance Program does not currently contain a setback requirement, although some communities have incorporated a setback requirement into their local floodplain ordinances. The Town of Porter has a 30 foot setback requirement for new development along the shoreline. The City of Michigan City implements a 30 to 50 foot set back along the shoreline depending upon whether the structure is residential or commercial.⁶³


State Water Deficiency Legislation

Water Shortage Plan

In 1991, the Indiana General Assembly enacted House Bill 1260 requiring the Advisory Council for the Bureau of Water and Resource Regulation, Department of Natural Resources, augmented with additional citizen membership appointed by the Governor, to develop a plan to meet the needs of citizens and the environment if a water shortage in Indiana threatens: (1) the health, safety, welfare, or economic well-being of the citizens; or, (2) the environment.⁶⁴ A water shortage was defined as a "limitation of the water supply resulting from natural phenomenon such as drought and problems of water distribution and use."⁶⁵

The plan was finalized in 1994 and recognized that water shortage management might occur on a state, regional, or local level. Basins were viewed as a primary unit for determining water shortage contingency regions, including the Lake Michigan basin of Northwest Indiana. The plan recommended the establishment of a Water Shortage Task Force under the direction of the Governor or Lieutenant Governor, with representation from the State Emergency Management Agency, Department of Natural Resources, Indiana Department of Environmental Management, Commissioner of Agriculture, Indiana Utility Regulatory Commission, and Indiana State Department of Health.

A water contingency plan was recognized in phases, determined by application of the Palmer Hydrologic Drought Index or exceedance values of regionalized monthly average river flows, depending upon the nature and severity of the water shortage. (1) A "water shortage watch" would alert government agencies and the public concerning the onset of conditions which indicated the potential for future water shortage problems. At this stage, voluntary water conservation measures would seek an overall reduction in water use of 5% in the affected areas. (2) A "water shortage warning" would prepare for a coordinated response to imminent water shortage conditions and would initiate "concerted voluntary conservation measures in an effort to avoid or reduce shortages, relieve stressed sources, and if possible forestall the need for mandatory water use restrictions." A reduction in current water use of 10% to 15% would be sought in the affected areas. (3) A "water shortage emergency" would seek to "marshal all available resources to respond to actual emergency conditions, to avoid depletion of water resources, to assure at least minimum water supplies to protect public health and safety, to support essential and high priority water uses and to avoid unnecessary economic dislocations." The Department of Natural Resources and SEMA would submit to the Governor a draft water shortage emergency proclamation. "As warranted by conditions, the Governor, pursuant to his authority under IC 10-4-1, will consider and issue a proclamation declaring a state of water shortage emergency for the affected area(s)." ⁶⁶


Water Resource Management

In 1983, Indiana adopted from the Model Water Code, with respect to water consumption, a variation of the "reasonable-beneficial use" definition.⁶⁷ "Reasonable-beneficial use" refers to "the use of water for a beneficial use in the quantity and manner that is (1) necessary for economic and efficient utilization; and (2) both reasonable and consistent with the public interest."⁶⁸ What is a "beneficial use" is very broadly construed to include "any useful and productive purpose" including domestic, agricultural (including irrigation), industrial, commercial, power generation, energy conversion, public water supply, waste assimilation, navigation, fish and wildlife, and recreational.⁶⁹

These concepts are significant primarily to developing and maintaining inventories of water resources. The Natural Resources Commission is required to assess the capabilities of streams to support instream and withdrawal uses and of aquifers to support withdrawal uses, low stream flow characteristics, existing uses and projections of beneficial use requirements, data regarding flood waters, and other assessments and information needed to properly define water resource availability.⁷⁰ At the same time, the Commission may by rule establish minimum stream flows, "taking into account the varying low flow characteristics of the streams of Indiana and the importance of instream and withdrawal uses, including established water quality standards and public water supply needs."⁷¹

In 1983, legislation was enacted which requires owners of significant water withdrawal facilities to register these facilities and report annual water use to the Natural Resources Commission through the Indiana Department of Natural Resources. Significant water withdrawal facilities are defined as facilities capable of withdrawing at least 100,000 gallons per day of surface water, ground water, or surface water and ground water combined. Registered withdrawals in the Lake Michigan area totaled almost 1128 billion gallons during 1990.⁷²

Facilities capable of withdrawing less than 100,000 gallons of water per day are not required to be registered for annual pumpage. However, it is estimated that non-registered facilities in the Lake Michigan area withdrew approximately 2.4 billion gallons of water in 1990.

The Natural Resources Commission is also given authority to require, by rule, a permit for most water withdrawals from navigable waters. This authority has not been exercised. ⁷³


Groundwater Emergencies

Problems with competing usages of groundwater, and with the application of the strict common-law doctrines by the courts to those usages, resulted in state legislation aimed at alleviating "groundwater emergencies."⁷⁴ The original 1982 provisions applied only to Newton County and Jasper County, site of the farm at issue in Prohosky v. Prudential Ins. Co. of Am.,⁷⁵ and several other large irrigation operations. The law has had its best-known applications in the Kankakee River watershed, but in 1985 it was rewritten and made applicable to all portions of the state.

Administered by the Department of Natural Resources, the law does not establish a permitting process but is instead triggered upon the filing of a complaint by an aggrieved person. The owner of a groundwater withdrawal facility with a capability of withdrawing less than 100,000 gallons of water a day, whose water supply is damaged by the owner of a groundwater withdrawal facility with a capability of withdrawing more than 100,000, may seek relief. In most instances, the law does not preclude a high-capacity user from impacting groundwater levels; however, if levels are lowered to a point where a domestic well fails, the owner of the high capacity facility must provide an alternate supply of water to the homeowner. The Department of Natural Resources may restrict high-capacity groundwater pumping if water withdrawals are exceeding the recharge capability of an aquifer, but a pumping restriction has occurred only once.⁷⁶ There are several statutory requirements which must be met before relief can be granted, most of which relate to causation. Also, the legislation sought to maximize efficient groundwater utilization for commercial and domestic users; in order to receive statutory protection, new wells must conform to construction standards set by rule. ⁷⁷


Surface Water Emergencies

Legislation parallel to the Groundwater Emergency Act does not exist for withdrawals from surface water, although a 1990 enactment provides some opportunity for relief if a lake larger than ten acres is being lowered by the withdrawal of 100,000 or more gallons of water daily within ½ mile of the lake.⁷⁸ Before relief is accorded, there must be a showing of significant environmental harm. Even then, a significant water user may post a bond rather than terminate operations, unless the Department of Natural Resources shows the lake or an adjacent property contains an extraordinary or unique natural resource that would be irreparably damaged if water withdrawals continue. The Department of Natural Resources has never issued an order under this statutory chapter.⁷⁹


Lake Protection Legislation

There are several statutory chapters, loosely coordinated with one another if at all, which provide some degree of protection for water levels and quantities. These do not apply directly to Lake Michigan, either because of a statutory exemption or due to the vast volume of Lake Michigan. The statutes are pertinent to the inland lakes located within Northwest Indiana and in the Indiana portion of the Lake Michigan basin. ⁸⁰

The Lake Preservation Act provides that a person cannot change the level of a public freshwater lake by excavating, filling in, or otherwise causing a change in its area, depth, or contour without obtaining a permit from the Department of Natural Resources.⁸¹ Another chapter requires a permit from the Department of Natural Resources before a person may alter a ditch or drain with a level lower than, and located within ½ mile of, a lake containing at least ten acres.⁸² A third chapter makes it a Class C infraction to lower a lake containing at least 20 acres more than twelve inches below its elevation as established by a dam or other control structure.⁸³ A fourth chapter provides that a person cannot establish a ditch or drain with a bottom depth lower than the level of a freshwater lake, and located within ½ mile of the lake, "unless a dam has been provided for and constructed to adequately protect the water level of each lake likely to be affected."⁸⁴ Yet another chapter establishes a petitioning process to "stabilize, raise, or establish and maintain the level" of a lake through the use of a dam or other control structure or by "diverting water into or away from the lake, pumping water into or out of the lake, or other means."⁸⁵

Stormwater runoff associated with construction and industrial activities are addressed in "Rule 5" and "Rule 6." More information concerning these regulatory programs can be found in Water Quality.




Conservancy Districts

In Indiana, conservancy districts may be formed for several purposes, including purposes related to water quantity issues. For instance a district can be formed for: (1) flood prevention and control; (2) improving drainage; (3) providing for irrigation; (4) providing water supply; and (5) storage of water for augmentation of stream flow. Historically districts have been formed for flood prevention and control, developing multi-million dollar projects in cooperation with the federal government. In the last couple decades, more districts have formed for the purposes of serving the needs of communities for water supply and drainage. The Indiana Conservancy Act is administered by the local court with technical assistance from the Indiana Department of Natural Resources, Division of Water.⁸⁶


Little Calumet River Basin Development Commission

The Little Calumet River Basin Development Commission was established to "provide for the creation, development, maintenance, administration, and operation of park, recreation, marina, flood control, and other public works projects" along the west arm of Little Calumet River in Lake and Porter Counties.⁸⁷ The Commission includes eleven members. The membership includes one member from each of the entities of Lake County, Porter County, Gary, and Hammond. A member is appointed by the director of the Department of Natural Resources and six members are appointed by the governor. ⁸⁸


Flood Control Revolving Loan Fund

The Flood Control Revolving Loan Fund was established by the Indiana General Assembly to provide a revolving loan fund for the use of flood control projects. Projects eligible for the loan include: (1) removal of obstructions and accumulated debris from stream channels; (2) clearing and straightening streams; (3) creating new and enlarged channels; and (4) the construction of bank protection works. technical reviews with respect to applications are processed by the Division of Water of the Department of Natural Resources. The fund is administered through the Natural Resources Commission and the State Board of Finance and is available to provide financing, not to exceed $300,000 for a project, to counties, cities, towns, and special taxing districts. Loans under this program may not exceed ten years at an interest rate of three percent.⁸⁹