Principle II: We All Care About Clean Water

Indiana law explicitly recognizes “the right of all persons to an environment sufficiently uncontaminated as not to be injurious to (a) human, plant, animal, and aquatic life.”

As we established in the introduction to this Report, pollution of Indiana waters is still a pressing issue. We made important progress when—decades ago—our legislature decided in spite of strong opposition that no one should be able to pipe polluted waste water directly into our state waters without a permit—and that you could get a permit only if you used appropriate technology to reduce the level of pollution of your waste. The water pollution laws have helped. We have made progress.  Yet today, 80% of Indiana water utilities in a recent survey still responded that water pollution sometimes affects their ability to deliver the quality and quantity of water they need. Incredibly, Indiana’s most recent assessment of its waters shows nearly seven thousand miles of streams and rivers impaired because untreated or insufficiently treated sewage is being piped from buildings directly into our waters. Of the nine watersheds tracked in IDEM’s 2016 water assessment, an average of 81% of stream miles was adjudged not suitable for recreational use because of bacteriological contamination. We should not allow ourselves to become complacent about the fact that our lakes and streams are still seriously polluted. 

A. Sources of Water Pollution

Perhaps the most important new commitment we recommend that the state make now is to recognize what the General Accounting Office said in a 2014 report to Congress (Clean Water Act: Changes Needed If Key EPA Program is to Help Fulfill the Nation’s Water Quality Goals): “More than 40 years after the Congress passed the Clean Water Act…the nation’s waters are still impaired…without changes to the Act’s approach to non-point source pollution, the Act’s goals are likely to remain unfulfilled.” 

Non-point pollution is water pollution that doesn’t require a permit under state and federal water pollution laws. Non-point pollution is what washes into our streams, rivers and lakes without being collected and treated in factories or sewer districts.  Most of Indiana’s stream impairment is attributable to non-point sources. The most significant sources of non-point source pollution are certain agricultural activities. For decades we have funded programs designed to address non-point water pollution with incentives and voluntary programs. These well-intended programs, though not without effect, have not done the job.  

More specifically, the Indiana Department of Environmental Management, in its 2016 report says that two of the top three known sources of impairment of Indiana waters are non-point pollution associated with animal feeding and grazing (Table 1). Sewage discharge in areas without sewers (as distinct from combined sewer overflows or failed septic systems) are cited as the second most important known cause of impairment. (These sewage discharges are an important unresolved point source of pollution.) Agricultural sub-surface drainage (currently a source of what is considered non-point source pollution) is the seventh most important challenge. 

As to groundwater, Indiana’s Nutrient Reduction Strategy states: “nitrate [primarily from fertilizer] is one of the most common groundwater contaminants found in the state. It represents a threat to drinking water primarily because excess levels can cause methemoglobinemia, or ‘blue baby’ syndrome.” Soil health improvements and continued improvement in fertilizer application technology are vital elements of a solution to that problem. While only 36% of groundwater samples revealed detectable levels of nitrogen contamination and only 2% exceed EPA established maximum allowable levels, groundwater contamination is an issue that will bear careful attention in areas of the state that have high hydrogeologic sensitivity (that is, soils classified as moderately to excessively well-drained).   

Nutrient pollution has other effects in surface water. It isn’t the most frequently cited cause of impairment in streams and rivers, but it stimulates unnatural growth of algae when those streams and rivers get to lakes or (eventually) the Gulf of Mexico. Indiana contributes a significant share of the nutrient pollution that causes the dead zone in the Gulf of Mexico and is a source of some of the phosphorus pollution that feeds the algae blooms in Lake Erie. Over several chaotic days in 2014, those toxic blooms made the public water supply of the city of Toledo unusable. Nutrient pollution is also an important nuisance that results in a reduction of the recreational value of Indiana lakes.

IDEM’s 2016 report concludes that over 60% of the assessed lake and river waters are unfit for human health and wildlife. There are both point source and non-point source issues, but the point source issues are simply a matter of will. The non-point sources both known and unidentified are now the most difficult problem we have to solve.

Current efforts to reduce non-point source pollution haven’t been sufficient, but they are worthy of support. Indiana farmers have been among the nation’s leaders in planting winter cover crops to manage nutrients, soil health and erosion. Over 1.2 million Indiana farm acres, or roughly 8% of Indiana cropland, was planted in cover crops in 2015. Also noteworthy are the state’s nutrient reduction strategy and the Lake Erie Domestic Action plan. They reflect renewed urgency toward the goal of reducing nitrogen and phosphorus pollution. A component of both is a nutrient applicator certification effort, the “4R Nutrient Certification” program, which is designed to promote observance of best practices in fertilizer application. Nonetheless, Indiana and other states have tried for decades to address the non-point source pollution issues with education, and incentives and local watershed planning and talk. Current programs share many characteristics with past efforts. New approaches are needed.   

Indiana has started to establish “pollution budgets” for impaired streams as a first step toward addressing the impairment. These budgets, called TMDLs, are designed to identify problem pollutants and sources, and enable IDEM to focus enforcement attention on the sources of those pollutants. They can only make a difference in water quality with an accurate assessment of the sources of the pollution problem and a sustained commitment to follow-up.   

As the GAO said in its 2014 report (p 36) effective TMDLs must “accurately identify and address causes of impairment, be implemented, and … be revised if found to be ineffective in helping water bodies attain water quality standards.” Because, as GAO says, EPA guidance is lacking specificity regarding those key elements of a worthwhile TMDL program, states need to take the lead in making good on the investment we are required by law to make in establishing TMDLs. One or two states, having not made progress with less assertive efforts, have balanced the scales by making non-point source polluters legally accountable just as point source polluters are.   
We have three specific recommendations for achieving the clean water that is our statutory right as Indiana citizens: 

Recommendation 10.  We recommend that the legislature empanel a study committee to consider two new programs to mitigate non-point source pollution. First, we should consider requiring livestock producers to maintain well-vegetated buffers that separate grazing and feeding livestock from Indiana streams and rivers. Second, we should consider upgrading current rules by requiring animal feeding operations that border Indiana waters to maintain well-vegetated buffers in fields upon which manure from those operations is spread. 

Indiana reports some success in improving nutrient and bacteriological loads in state waters through implementation of best practices. The case reported in IDEM’s 2016 report, however shows relatively small investment from the sources of contamination, and large public investment. With state supplementation to USDA and EPA-funded programs, and an appropriate private sector commitment, the challenge of funding best practices implementation can be met. Forty years of trying, however, teaches us that the challenge will not be met solely with voluntary efforts. The stream buffers called for in recommendation 10 need not be non-productive lands; in many situations, they could, for example be managed for hay. And if buffers are shown to be impracticable, we need an alternative strategy for reducing livestock-sourced E. coli (fecal) pollution of our rivers, streams, and lakes.

The second largest collection of related known sources of pollution of the rivers and streams of Indiana is untreated or improperly treated sewage from: (in descending order of stream miles affected) direct pipes, municipal treatment systems, permitted package treatment plants, combined sewer overflow, and failed septic systems. We must resolve to end that pollution.

Recommendation 11. The state of Indiana should commit immediately to resolving every case of direct piping of insufficiently treated sewage into Indiana waters. Within four years, we should cut by 90% the number of stream miles impaired by untreated sewage, and we should have a plan to bring that number to zero within 10 years. In addition, we should continue to invest in reducing combined sewer overflow and address rural sewage management with appropriate funding for public health department inspection and enforcement. 

In 2015 (according to the United Health Foundation) Indiana ranked 48th in the nation for funding public health departments. We certainly need to fund local health departments to support regular inspections of septic systems and enforce regulations. We believe there will be a role for the IWA in catalyzing the repair or replacement of failing septic systems and investigating the feasibility of investment in rural sewer districts, rural septic management districts, and other new sewage management technologies. 

The next most important manageable source of non-point source surface water pollution in Indiana is agricultural drainage. Important efforts led by soil and water conservation districts and others have resulted in a new emphasis on building soil health with cover crops and other methods. These efforts deserve praise because improved soil health will increase the capacity of soil to hold water, improve yields in variable weather conditions, and reduce nutrient run-off and leaching. 
There is an additional way to reduce the deposition of nutrient pollution in to our waters, and that is to empower drainage boards to invest toward that goal. Very minor statutory amendments could accomplish this. Only two basic changes are needed. First, a definition of “undesirable environmental effects.” Second, authorization for drainage boards and county surveyors to consider reducing undesirable environmental effects in constructing and maintaining public drains. Suggested amendments are included in the Appendix to this Report.  

Recommendation 12. Allow surveyors and drainage boards to take the environment into account when assessing the system, maintaining drains, and planning new or replacement drainage projects.