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The Indiana Department of Environmental Management (IDEM) is in the process of reviewing three aspects of its watershed management program that could impact a variety of industries in the state. These rulemaking actions may not impose any new requirements in the short term, but could set in motion events leading to new obligations for Indiana businesses and individuals down the road. Potentially affected businesses and individuals should participate in the rulemaking process—either on their own, through industry associations, or by taking part in local stakeholder groups—before the effects of these actions become irreversible.
Indiana List of Impaired Waters
On April 1, 2014, IDEM began soliciting public comments for revision of its 303(d) List of Impaired Waters. Under § 303(d) of the federal Clean Water Act (CWA), states are required to identify waters that do not meet federal water quality standards. Once identified the state must establish a total maximum daily load (TMDL), the amount of pollutant that an impaired river or stream can handle. The TMDLs established by IDEM could require developers and farmers to implement more stringent best management practices (BMPs) into their operations. IDEM is accepting comments on the 303(d) list, and the underlying methodology for assessing waters on that list, until July 29, 2014.
TMDLs and Agriculture: The Lower Big Blue River Watershed as Case Study
Given that so much land in Indiana is dedicated to agricultural production, IDEM's decisions regarding the Lower Big Blue River watershed, a predominantly agricultural 280-square mile area in east-central Indiana, should be watched closely. On May 13, 2014, IDEM published its most recent draft TMDL for the watershed, which covers parts of Hancock, Henry, Johnson, Rush and Shelby counties and includes 12 permitted concentrated animal feeding operations.
According to water sampling conducted by IDEM in 2010 and 2013, 14 of the 23 sites surveyed in the watershed do not meet federal quality standards for e-coli. Over 90 percent of the watershed is considered "impaired" and considerable reductions in e-coli levels may be required in parts of the watershed to meet water quality standards.
IDEM has indicated that potential BMPs for agricultural producers could include use of cover crops; improved manure handling, storage, treatment and disposal practices; conservation crop rotation; and construction of riparian buffers or filter strips. Federal, state and local grants and incentives may be available for farmers and other individuals to voluntarily implement these measures.
IDEM is accepting public comments on the draft TMDL for the Lower Big Blue watershed until June 12, 2014.
Broadening the Parameters of Watershed Review
Since it began implementing TMDLs for watersheds in 2001, IDEM has focused on e-coli, the most common type of water quality impairment. Recently, however, the agency has begun to assess several other watersheds according to a broader set of parameters, including dissolved oxygen, biotic communities and siltation. In assessing these potential impairments, IDEM will analyze a wider set of factors, including general chemistry, nutrients, habitat, fish and macroinvertebrate communities, and stream flow.
IDEM began implementing this broader assessment in 2013 with the Deep River-Portage Burns Watershed, located in the heavy industrial area of northwest Indiana that includes Gary, Hobart, Merrillville, Griffith, and other municipalities in Lake and Porter counties.
The draft TMDL for the Deep River-Portage Burns Watershed is expected in late summer 2014. Given that the most commercial land in the Deep River-Portage Burns Watershed is dedicated to development, not agriculture, TMDLs established for this watershed will likely result in more stringent discharge limits and other obligations for new and existing individually permitted industrial sources, such as manufacturers and utilities.
These three rulemakings from IDEM illustrate the complex regulatory framework between federal, state and local governments. Individuals and businesses who may be impacted should provide input as necessary to ensure that future obligations are adequately justified.
If you have questions about how these or any other environmental agency rulemakings may affect your business operations, please contact a Faegre Baker Daniels environment lawyer.
