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Drought fuels renewed drive for a statewide water policy

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The Indiana Chamber of Commerce is finding that there is nothing quite like a dry, arid, hot summer to spark people’s interest in water.

Vince Griffin, vice president of energy and environmental affairs at the chamber, has been busy in recent months meeting with different groups around the state who have invited him to talk about the need for a statewide water policy. His main point is that water and electricity are the backbone of the economy and without either, the economy will not exist.

stemler Stemler

The chamber’s focus on water is nothing new. It has been calling for legislative action for some time and is again listing the crafting of a water policy as one of its top legislative priorities for the 2013 session.

Water has always been a sleeper issue, Griffin said. The drought of 2012, called the worst in 100 years, just woke people up and may provide the impetus for the Indiana General Assembly to act.

However, what the content of any potential water legislation would be and even if any bills will be introduced is unknown. The Water Resources Study Committee did examine the impact of the drought and water management but was unable to adopt recommendations or file a final report because it had a lack of quorum at its last meeting.

Still, Rep. Steve Stemler, D-Jeffersonville, has stated he anticipates introducing a bill addressing water accessibility. Also, Gov.-elect Mike Pence specifically highlighted in his Roadmap for Indiana that his policies will include directing state agencies to establish a plan for managing the state’s water resources and for accelerating the effort to clean the state’s waterways.

Stemler and other members of the water resources committee were unavailable for comment.

In general, Griffin said, the questions are simple: Where is the water? Who’s going to need the water? And how are we going to get the water there?

The answers, on the other hand, will be much more difficult.

Running dry

During the 2012 session, the General Assembly passed Senate Bill 132 which directed water utilities in the state to report annually to the Indiana Utility Regulatory Commission the types of use and the operations and maintenance costs. The IURC will then submit a summary of the data to the Legislature in the first quarter of 2013.

John Hardwick, chair of the Water Utility Council Committee of the Indiana Section of the American Water Works Association and retired director of the Valparaiso City Utilities, believes that data will provide a clear direction for water policy and planning.

Unless the state takes water concerns seriously, Indiana will not be able to sustain its drinking water supply, Hardwick said. He believes many aquifers around the state are not refreshing themselves as fast as they once did.

The worst case scenario he presents is even more frightening.

“Without planning, there may be individual pockets around the state that run out of water,” Hardwick said.

Already have statutes

Jack Wittman, director of geosciences at Layne Christensen Co., is optimistic both the incoming governor and the Legislature are serious about tackling the water issues. It is, he said, a purely bipartisan topic.

He sketched a series of water policies that he touts as creating a win-win situation for industry, farmers and municipalities. Among his proposals are:

• River bank filtration which would pump the shallow groundwater near rivers. These sources of water are drought resistant and offer the quality of groundwater but with the limited impacts of surface water diversion.

• Aquifer storage which would put water back into the aquifer. Regulations should encourage storing water and not place too many limits on what water (drinking or runoff) is allowed in. The natural ecosystem will cleanse the contaminants and bacteria.

• Conservation which would reduce the waste of water resources.

Daniel McInerny, a partner in the environmental law and agribusiness groups at Bose McKinney & Evans LLP, has represented parties in water disputes and noted often tensions arise over whose priority is more important.

Indiana common law and the statutes in place have been able to address these water issues, which makes him question the push for additional policies and regulations.

“Is there a need for something else?” McInerny asked. “I don’t know.”

A key statute governing water usage in the state is the Emergency Regulation of Ground Water Rights, I.C. 14-25-4. This provision protects owners of small-capacity wells from significant water-level declines and failures caused by large users. These large users are defined as entities that withdraw at least 100,000 gallons of water per day.

Through this statute, the Indiana Department of Natural Resources Division of Water investigates complaints and, if it determines the large user is impairing the water level, has the authority to restrict the pumping of water and seek compensation for the small-well owner.

Appeals of the findings can be made to the Natural Resource Commission. In 2012 no appeals were filed, which is significant in light of the number of complaints and, some say, indicates the statute is resolving issues.

In June and July, the period when many systems were running full tilt, the DNR Water Division investigated 150 to 200 claims, said Mark Basch, head of the Water Rights and Use Section of the DNR Division of Water. In a normal year, the division investigates an average of 100 complaints over the course of an entire 12 months.

The problems this year were no different than past years, Basch said. The well failures happened in the same areas that typically have chronic supply issues during the summer.

Basch agrees the water statutes are working, but he does not think that is enough reason to not take a deeper look. Specifically, it would be helpful if the Legislature would make an assessment of the groundwater and surface water resources in the state to determine if those resources will meet future needs.

Timing and location

Indiana, as a whole, has plenty of water, Wittman said. The problem is timing and location because while water is plentiful, it is not always available where it needs to be.

Such a situation can hinder energy production and economic growth. Businesses looking to start big operations want to know the location will provide adequate power and water.

One area currently seen as ripe for economic development is the southwestern section of the state along the new portion of Interstate 69. That area can grow quickly, Griffin said, but it has a limited water supply and raises the concern of how to get more water there.

“If we continue to have drought years, we’re going to have trouble because we haven’t figured out a way to get water to where it needs to be,” Wittman said.

Although any proposal to transfer water usually raises howls, he advocates for an infrastructure and policies that allow for moving water but with the caveat that water will never be taken from anyone who is using it.

Under his proposal, the state would invest in building system pipelines that tap into new, more drought-resistant sources like the Wabash and Ohio rivers. This would not divert water from a source that is already being used but rather it would add to the total amount available to residents.

“What we’re talking about isn’t for today,” Wittman said. “It’s for 20 years from now.” •

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  1. I work with some older lawyers in the 70s, 80s, and they are sharp as tacks compared to the foggy minded, undisciplined, inexperienced, listless & aimless "youths" being churned out by the diploma mill law schools by the tens of thousands. A client is generally lucky to land a lawyer who has decided to stay in practice a long time. Young people shouldn't kid themselves. Experience is golden especially in something like law. When you start out as a new lawyer you are about as powerful as a babe in the cradle. Whereas the silver halo of age usually crowns someone who can strike like thunder.

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