CHAPTER 3. POWERS AND DUTIES CONCERNING WATER POLLUTION CONTROL
IC 13-18-3
Chapter 3. Powers and Duties Concerning Water PollutionControl
IC 13-18-3-1
Duties of board
Sec. 1. The water pollution control board shall adopt rules for thecontrol and prevention of pollution in waters of Indiana with anysubstance:
(1) that is deleterious to:
(A) the public health; or
(B) the prosecution of any industry or lawful occupation; or
(2) by which:
(A) any fish life or any beneficial animal or vegetable lifemay be destroyed; or
(B) the growth or propagation of fish life or beneficialanimal or vegetable life is prevented or injuriously affected.
As added by P.L.1-1996, SEC.8.
IC 13-18-3-2
Designation of outstanding state resource waters; rules andrecommendations; NPDES general permits and antidegradationreview; classification of waters
Sec. 2. (a) The board may adopt rules under IC 4-22-2 that arenecessary to the implementation of:
(1) the Federal Water Pollution Control Act (33 U.S.C. 1251 etseq.), as in effect January 1, 1988; and
(2) the federal Safe Drinking Water Act (42 U.S.C. 300fthrough 300j), as in effect January 1, 1988;
except as provided in IC 14-37.
(b) "Degradation" has the meaning set forth in IC 13-11-2-50.5.
(c) "Outstanding national resource water" has the meaning setforth in IC 13-11-2-149.5.
(d) "Outstanding state resource water" has the meaning set forthin IC 13-11-2-149.6.
(e) "Watershed" has the meaning set forth in IC 14-8-2-310.
(f) The board may designate a water body as an outstanding stateresource water by rule if the board determines that the water bodyhas a unique or special ecological, recreational, or aestheticsignificance.
(g) Before the board may adopt a rule designating a water body asan outstanding state resource water, the board must consider thefollowing:
(1) Economic impact analyses, presented by any interestedparty, taking into account future population and economicdevelopment growth.
(2) The biological criteria scores for the water body, usingfactors that consider fish communities, macro invertebratecommunities, and chemical quality criteria using representativebiological data from the water body under consideration. (3) The level of current urban and agricultural development inthe watershed.
(4) Whether the designation of the water body as an outstandingstate resource water will have a significant adverse effect onfuture population, development, and economic growth in thewatershed, if the water body is in a watershed that has morethan three percent (3%) of its land in urban land uses or servesa municipality with a population greater than five thousand(5,000).
(5) Whether the designation of the water body as an outstandingstate resource water is necessary to protect the unique or specialecological, recreational, or aesthetic significance of the waterbody.
(h) Before the board may adopt a rule designating a water body asan outstanding state resource water, the board must make availableto the public a written summary of the information considered by theboard under subsections (f) and (g), including the board's conclusionsconcerning that information.
(i) The commissioner shall present a summary of the commentsreceived from the comment period and information that supports awater body designation as an outstanding state resource water to theenvironmental quality service council not later than one hundredtwenty (120) days after the rule regarding the designation is finallyadopted by the board.
(j) Notwithstanding any other provision of this section, thedesignation of an outstanding state resource water in effect onJanuary 1, 2000, remains in effect.
(k) For a water body designated as an outstanding state resourcewater, the board shall provide by rule procedures that will:
(1) prevent degradation; and
(2) allow for increases and additions in pollutant loadings froman existing or new discharge if:
(A) there will be an overall improvement in water quality forthe outstanding state resource water as described in thissection; and
(B) the applicable requirements of 327 IAC 2-1-2(1) and 327IAC 2-1-2(2) and 327 IAC 2-1.5-4(a) and 327 IAC2-1.5-4(b) are met.
(l) The procedures provided by rule under subsection (k) mustinclude the following:
(1) A definition of significant lowering of water quality thatincludes a de minimis quantity of additional pollutant load:
(A) for which a new or increased permit limit is required;and
(B) below which antidegradation implementation proceduresdo not apply.
(2) Provisions allowing the permittee to choose application ofone (1) of the following for each activity undertaken by thepermittee that will result in a significant lowering of waterquality in the outstanding state resource water: (A) Implementation of a water quality project in thewatershed of the outstanding state resource water that willresult in an overall improvement of the water quality of theoutstanding state resource water.
(B) Payment of a fee, not to exceed five hundred thousanddollars ($500,000), based on the type and quantity ofincreased pollutant loadings, to the department for deposit inthe outstanding state resource water improvement fundestablished under section 14 of this chapter for use aspermitted under that section.
(3) Criteria for the submission and timely approval of projectsdescribed in subdivision (2)(A).
(4) A process for public input in the approval process.
(5) Use of water quality data that is less than seven (7) years oldand specific to the outstanding state resource water.
(6) Criteria for using the watershed improvement fees to fundprojects in the watershed that result in improvement in waterquality in the outstanding state resource water.
(m) For a water body designated as an outstanding state resourcewater after June 30, 2000, the board shall provide by ruleantidegradation implementation procedures before the water body isdesignated in accordance with this section.
(n) A water body may be designated as an outstanding nationalresource water only by the general assembly after recommendationsfor designation are made by the board and the environmental qualityservice council.
(o) Before recommending the designation of an outstandingnational resource water, the department shall provide for an adequatepublic notice and comment period regarding the designation. Thecommissioner shall present a summary of the comments andinformation received during the comment period and thedepartment's recommendation concerning designation to theenvironmental quality service council not later than ninety (90) daysafter the end of the comment period. The council shall consider thecomments, information, and recommendation received from thedepartment, and shall convey its recommendation concerningdesignation to the general assembly within six (6) months afterreceipt.
(p) This subsection applies to all surface waters of the state. Thedepartment shall complete an antidegradation review of the rules ofthe board that authorize NPDES general permits. The board maymodify those rules for purposes of antidegradation compliance. Afteran antidegradation review of a rule is conducted under thissubsection, activities covered by an NPDES general permitauthorized by that rule are not required to undergo an additionalantidegradation review. An NPDES general permit may not be usedto authorize a discharge into an outstanding national resource wateror an outstanding state resource water, except that a short term,temporary storm water discharge to an outstanding national resourcewater or to an outstanding state resource water may be permitted
under an NPDES general permit if the commissioner determines thatthe discharge will not significantly lower the water qualitydownstream of the discharge.
(q) Subsection (r) applies to an application for:
(1) an NPDES permit subject to IC 13-15-4-1(a)(2)(B),IC 13-15-4-1(a)(3)(B), or IC 13-15-4-1(a)(4); or
(2) a modification or renewal of a permit referred to in one (1)of the sections referred to in subdivision (1) that proposes newor increased discharge that would result in a significantlowering of water quality as defined in subsection (l)(1).
(r) For purposes of an antidegradation review with respect to anapplication referred to in subsection (q), the applicant shalldemonstrate at the time the application is submitted to thedepartment, and the commissioner shall review:
(1) an analysis of alternatives to the proposed discharge; and
(2) subject to subsection (s), social or economic factorsindicating the importance of the proposed discharge ifalternatives to the proposed discharge are not practicable.
(s) Subject to subsection (t), the commissioner shall consider thefollowing factors in determining whether a proposed discharge isnecessary to accommodate important economic or socialdevelopment in the area in which the waters are located underantidegradation standards and implementation procedures:
(1) Creation, expansion, or maintenance of employment.
(2) The unemployment rate.
(3) The median household income.
(4) The number of households below the poverty level.
(5) Community housing needs.
(6) Change in population.
(7) The impact on the community tax base.
(8) Provision of fire departments, schools, infrastructure, andother necessary public services.
(9) Correction of a public health, safety, or environmentalproblem.
(10) Production of goods and services that protect, enhance, orimprove the overall quality of life and related research anddevelopment.
(11) The impact on the quality of life for residents in the area.
(12) The impact on the fishing, recreation, and tourismindustries.
(13) The impact on threatened and endangered species.
(14) The impact on economic competitiveness.
(15) Demonstration by the permit applicant that the factorsidentified and reviewed under subdivisions (1) through (14) arenecessary to accommodate important social or economicdevelopment despite the proposed significant lowering of waterquality.
(16) Inclusion by the applicant of additional factors that mayenhance the social or economic importance associated with theproposed discharge, such as an approval that: (A) recognizes social or economic importance; and
(B) is given to the applicant by:
(i) a legislative body; or
(ii) other government officials.
(17) Any other action or recommendation relevant to theantidegradation demonstration made by a:
(A) state;
(B) county;
(C) township; or
(D) municipality;
potentially affected by the proposed discharge.
(18) Any other action or recommendation relevant to theantidegradation demonstration received during the publicparticipation process.
(19) Any other factors that the commissioner:
(A) finds relevant; or
(B) is required to consider under the Clean Water Act.
(t) In determining whether a proposed discharge is necessary toaccommodate important economic or social development in the areain which the waters are located under antidegradation standards andimplementation procedures, the commissioner:
(1) must give substantial weight to any applicabledeterminations by governmental entities; and
(2) may rely on consideration of any one (1) or a combinationof the factors listed in subsection (s).
(u) Each exceptional use water (as defined in IC 13-11-2-72.5,before its repeal) designated by the board before June 1, 2009,becomes an outstanding state resource water on June 1, 2009, byoperation of law.
(v) Beginning June 1, 2009, all waters of the state are classifiedin the following categories:
(1) Outstanding national resource waters.
(2) Outstanding state resource waters.
(3) Waters of the state as described in 327 IAC 2-1-2(1), as ineffect on January 1, 2009.
(4) High quality waters as described in 327 IAC 2-1-2(2), as ineffect on January 1, 2009.
(5) Waters of the state as described in 327 IAC 2-1.5-4(a), as ineffect on January 1, 2009.
(6) High quality waters as described in 327 IAC 2-1.5-4(b), asin effect on January 1, 2009.
As added by P.L.1-1996, SEC.8. Amended by P.L.140-2000, SEC.17;P.L.1-2001, SEC.16; P.L.78-2009, SEC.15.
IC 13-18-3-2.1
Deadline for department to complete antidegradation review incertain circumstances; extension
Sec. 2.1. (a) If a discharge results from an activity for which:
(1) an NPDES permit subject to IC 13-15-4-1(a)(2)(B),IC 13-15-4-1(a)(3)(B), or IC 13-15-4-1(a)(4); or (2) a modification or renewal of a permit referred to in one (1)of the sections referred to in subdivision (1) that proposes newor increased discharge that would result in a significantlowering of water quality as defined in IC 13-18-3-2(l)(1);
is sought, the deadline for the department to complete theantidegradation review under 40 CFR 131.12 and 40 CFR Part 132,Appendix E with respect to the discharge is the deadline for thecommissioner to approve or deny the NPDES permit applicationunder IC 13-15-4-1.
(b) The commissioner may extend for cause for not more thanninety (90) days the deadline under subsection (a) for the departmentto complete the antidegradation review.
As added by P.L.78-2009, SEC.16.
IC 13-18-3-2.3
Designated use change to CSO wet weather category; long termcontrol plans
Sec. 2.3. (a) This subsection applies if a use attainability analysisis performed and approved to change the designated use of a waterbody receiving wet weather discharges from combined seweroverflows from the recreational use designation that applied to thewaters immediately before the application to the waters of the CSOwet weather subcategory established in section 2.5 of this chapter tothat subcategory. Upon implementation of the approved long termcontrol plan, the plan fulfills the water quality goals of the state withrespect to wet weather discharges that are a result of overflows fromthe combined sewer system addressed by the plan.
(b) A long term control plan must meet the requirements of:
(1) Section 402(q) of the federal Clean Water Act (33 U.S.C.1342(q)); and
(2) 59 FR 18688.
(c) An approved long term control plan shall be incorporated into:
(1) the NPDES permit holder's NPDES permit; or
(2) an order of the commissioner under IC 13-14-2-6.
(d) If a use attainability analysis is performed, the departmentshall:
(1) review a use attainability analysis submitted under thischapter concurrently with a long term control plan submittedunder this chapter; and
(2) use the approved long term control plan to satisfy therequirements of the use attainability analysis.
As added by P.L.140-2000, SEC.18. Amended by P.L.54-2005,SEC.2.
IC 13-18-3-2.4
Review of feasibility of implementing additional or new controlalternatives to attain water quality standards
Sec. 2.4. An NPDES permit holder shall review the feasibility ofimplementing additional or new control alternatives to attain waterquality standards. The NPDES permit holder shall conduct such a
review periodically, but not less than every five (5) years afterapproval of the long term control plan by the department. TheNPDES permit holder shall:
(1) document to the department that the long term control planhas been reviewed;
(2) update the long term control plan as necessary;
(3) submit any amendments to the long term control plan to thedepartment for approval; and
(4) implement control alternatives determined to be costeffective and affordable.
Cost effectiveness may be determined, at the option of the NPDESpermit holder, by using a knee of the curve analysis in accordancewith section 402(q) of the federal Clean Water Act (33 U.S.C.1342(q)) and 59 FR 18688.
As added by P.L.140-2000, SEC.19. Amended by P.L.1-2001,SEC.17; P.L.54-2005, SEC.3.
IC 13-18-3-2.5
CSO wet weather limited use subcategory established; applicationafter approval of long term control plan; other requirements; EPAapproval; monitoring and review; rules
Sec. 2.5. (a) A CSO wet weather limited use subcategory isestablished for waters affected by receiving combined seweroverflows, as specified in an approved long term control plan. TheCSO wet weather limited use subcategory applies to a specific waterbody after implementation of an approved long term control plan forthe combined sewer system whose overflow discharges affect thosewaters is implemented and the conditions of subsection (b) aresatisfied. The following requirements apply to the CSO wet weatherlimited use subcategory:
(1) The water quality based requirements associated with theCSO wet weather limited use subcategory that apply to watersaffected by wet weather combined sewer overflows aredetermined by an approved long term control plan for thecombined sewer system. The water quality based requirementsremain in effect during the time and to the physical extent thatthe recreational use designation that applied to the watersimmediately before the application to the waters of the CSO wetweather limited use subcategory is not attained, but for notmore than four (4) days after the date the overflow dischargeends.
(2) At all times other than those described in subdivision (1),the water quality criteria associated with the appropriaterecreational use designation that applied to the watersimmediately before the application to the waters of the CSO wetweather limited use subcategory apply unless there is a changein the use designation as a result of a use attainability analysis.
(b) The CSO wet weather limited use subcategory applies if:
(1) the department has approved a long term control plan for theNPDES permit holder for the combined sewer system; (2) the approved long term control plan:
(A) is incorporated into:
(i) the NPDES permit holder's NPDES permit; or
(ii) an order of the commissioner under IC 13-14-2-6;
(B) satisfies the requirements of section 2.3 of this chapter;and
(C) specifies the water quality based requirements that applyto combined sewer overflows during and immediatelyfollowing wet weather events, as provided in subsection(a)(1);
(3) the NPDES permit holder has implemented the approvedlong term control plan; and
(4) subject to subsection (c), 40 CFR 131.10, 40 CFR 131.20,and 40 CFR 131.21 are satisfied.
(c) For purposes of subsection (b)(4), 40 CFR 131.10 may besatisfied by including appropriate data and information in the longterm control plan.
(d) The department shall implement the CSO wet weather limiteduse subcategory and associated water quality based requirementsunder this section when the subcategory and requirements areapproved by the United States Environmental Protection Agency.The department shall seek approval of the United StatesEnvironmental Protection Agency in a timely manner.
(e) The NPDES permit holder shall monitor its discharges and thewater quality in the affected receiving stream periodically asprovided in the long term control plan. The NPDES permit holdershall provide all such information to the department.
(f) In conjunction with a review of its long term control planunder section 2.4 of this chapter, the NPDES permit holder shallreview information generated after the use attainability analysis wasapproved by the department to determine whether the conclusion ofthe use attainability analysis is still valid. The NPDES permit holdershall provide the results of the review to the department.
(g) The board shall adopt rules under IC 13-14-8 and IC 13-14-9to implement this section before October 1, 2006.
As added by P.L.140-2000, SEC.20. Amended by P.L.54-2005,SEC.4.
IC 13-18-3-2.6
Permit schedules of compliance
Sec. 2.6. (a) Where appropriate, permits shall contain schedulesof compliance requiring the permittee to take specific steps toachieve expeditious compliance with applicable standards,limitations, and other requirements.
(b) The schedule of compliance shall require compliance as soonas reasonably possible, but may remain in effect as long as theNational Pollutant Discharge Elimination System (NPDES) permitrequirements are in effect.
(c) The department shall, at the request of the NPDES permitholder, incorporate in the permit a schedule of compliance for
meeting the water quality based requirements associated withcombined sewer overflows during the period of development,approval, and implementation of the long term control plan. Theschedules of compliance:
(1) may exceed time frames authorized under 327 IAC; and
(2) may not exceed the period specified for implementation inan approved long term control plan.
(d) If the term of a schedule of compliance exceeds the term of anNPDES permit, the department shall continue to implement theschedule of compliance continuously before and during eachsuccessive permit term, to the maximum duration as provided insubsection (c). The permit shall specify that the schedule ofcompliance lasts beyond the term of the permit.
(e) Upon request of the permittee, the department shall modifyNPDES permits containing water quality based requirementsassociated with combined sewer overflows to provide schedules ofcompliance as provided in subsection (c).
(f) The board shall adopt rules under IC 13-14-8 and IC 13-14-9to implement this section before October 1, 2006.
As added by P.L.54-2005, SEC.5.
IC 13-18-3-3
Operating policies
Sec. 3. The board shall develop operating policies governing theimplementation of the water pollution control laws by thedepartment.
As added by P.L.1-1996, SEC.8.
IC 13-18-3-4
Orders; review by environmental law judge
Sec. 4. (a) The commissioner may enter into agreed orders asprovided in IC 13-30-3-6.
(b) An environmental law judge under IC 4-21.5-7 shall revieworders and determinations of the commissioner.
As added by P.L.1-1996, SEC.8.
IC 13-18-3-5
Additional duties
Sec. 5. The board shall carry out other duties imposed by law.
As added by P.L.1-1996, SEC.8.
IC 13-18-3-6
Enforcement
Sec. 6. The water pollution control laws may be enforced underIC 13-30-3 or IC 13-14-2-6.
As added by P.L.1-1996, SEC.8.
IC 13-18-3-7
Orders to acquire, construct, repair, alter, or extend plants
Sec. 7. The commissioner may order any person to acquire,
construct, repair, alter, or extend the plants that are necessary for thedisposal or treatment of organic or inorganic matter that is:
(1) causing;
(2) contributing to; or
(3) about to cause or contribute to;
a polluted condition of the waters of Indiana.
As added by P.L.1-1996, SEC.8.
IC 13-18-3-8
Sealing of mines and wells
Sec. 8. The commissioner may require the sealing of mines, oiland gas wells, brine wells, or any other subterranean strata that are:
(1) causing;
(2) contributing to; or
(3) about to cause or contribute to;
a polluted condition of the waters of Indiana.
As added by P.L.1-1996, SEC.8.
IC 13-18-3-9
Entry upon property; purposes
Sec. 9. The department may, through any authorized agent, enterat all reasonable times in or upon any private or public property forthe purpose of inspecting and investigating conditions relating to thepollution of any water of Indiana.
As added by P.L.1-1996, SEC.8.
IC 13-18-3-10
Assistance from other state departments, agencies, or institutions
Sec. 10. The department may call upon:
(1) any state officer, board, department, school, university, orother state institution; and
(2) the officers or employees of an individual entity describedin subdivision (1);
for any assistance necessary to carry out the water pollution controllaws.
As added by P.L.1-1996, SEC.8.
IC 13-18-3-11
Liberal construction
Sec. 11. Since the water pollution control laws are necessary forthe public health, safety, and welfare, the water pollution controllaws shall be liberally construed to effectuate the purposes of thewater pollution control laws.
As added by P.L.1-1996, SEC.8.
IC 13-18-3-12
Adoption of rules waiving requirement of submission of plans
Sec. 12. The water pollution control board shall adopt rulesproviding that whenever a person submits plans to a unit concerningthe design or construction of: (1) a sanitary sewer or public water main, if:
(A) a professional engineer who is registered under IC 25-31prepared the plans;
(B) the unit provided for review of the plans by a qualifiedengineer and subsequently approved the plans; and
(C) all other requirements specified in rules adopted by thewater pollution control board are met; or
(2) a sanitary sewer extension for and within a subdivision, if:
(A) a qualified land surveyor who is registered underIC 25-21.5 prepared the plans;
(B) the subdivision is being laid out or having been laid outby the land surveyor subject to IC 25-21.5-7;
(C) the unit provided for review of the plans by a qualifiedengineer and subsequently approved the plans; and
(D) all other requirements specified in rules adopted by thewater pollution control board are met;
the plans are not required to be submitted to any state agency for apermit, permission, or review, unless required by federal law.
As added by P.L.104-1998, SEC.1. Amended by P.L.241-1999,SEC.1.
IC 13-18-3-13
Violation of storm water runoff rules
Sec. 13. If a violation of 327 IAC 15-5 occurs, the departmentshall determine which person is responsible for committing theviolation. In making this determination, the department shall, ifappropriate, consider:
(1) public records of ownership;
(2) building permits issued by local units of government; or
(3) other relevant information.
The department's determination to proceed against a personresponsible for committing a violation must be based on the specificfacts and circumstances related to a particular violation.
As added by P.L.161-1999, SEC.1.
IC 13-18-3-14
Outstanding state resource water improvement fund;administration; annual report by commissioner to environmentalquality service council
Sec. 14. (a) The outstanding state resource water improvementfund is established. All money collected under section 2 of thischapter and any money accruing to the fund are continuouslyappropriated to the fund to carry out the purposes of section 2 of thischapter. Money in the fund at the end of a state fiscal year does notrevert to the state general fund, unless the outstanding state resourcewater improvement fund is abolished.
(b) The outstanding state resource water improvement fund shallbe administered as follows:
(1) The fund may be used by the department of environmentalmanagement to fund projects that will lead to overall
improvement to the water quality of the affected outstandingstate resource water.
(2) The treasurer of state may invest the money in the fund notcurrently needed to meet the obligations of the fund in the samemanner as other public money may be invested.
(3) Any interest received accrues to the fund.
(4) The expenses of administering the fund shall be paid fromthe fund.
(c) The commissioner shall annually report to the environmentalquality service council:
(1) plans for the use and implementation of the outstandingstate resource water improvement fund; and
(2) the balance in the fund.
As added by P.L.140-2000, SEC.21. Amended by P.L.78-2009,SEC.17.