§ 13-18-3-2 — Adoption of rules to implement federal acts; designation of outstanding state resource waters; antidegradation review of certain applications; classification of all state waters

(a) The board may adopt rules under IC 4-22-2
that are necessary to the implementation of:
(1) the Federal Water Pollution Control Act (33 U.S.C. 1251 et
seq.), as in effect January 1, 1988; and
(2) the federal Safe Drinking Water Act (42 U.S.C. 300f through
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 set forth
in IC 13-11-2-149.5.
(d) "Outstanding state resource water" has the meaning set forth in
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 state
resource water by rule if the board determines that the water body has
a unique or special ecological, recreational, or aesthetic significance.
(g) Before the board may adopt a rule designating a water body as
an outstanding state resource water, the board must consider the
following:
(1) Economic impact analyses, presented by any interested party,
taking into account future population and economic development
growth.
(2) The biological criteria scores for the water body, using factors
that consider fish communities, macro invertebrate communities,
and chemical quality criteria using representative biological data
from the water body under consideration.
(3) The level of current urban and agricultural development in the
watershed.
(4) Whether the designation of the water body as an outstanding
state resource water will have a significant adverse effect on
future population, development, and economic growth in the
watershed, if the water body is in a watershed that has more than
three percent (3%) of its land in urban land uses or serves a
municipality with a population greater than five thousand (5,000).
(5) Whether the designation of the water body as an outstanding
state resource water is necessary to protect the unique or special
ecological, recreational, or aesthetic significance of the water
body.
(h) Before the board may adopt a rule designating a water body as
an outstanding state resource water, the board must make available to
the public a written summary of the information considered by the
board under subsections (f) and (g), including the board's conclusions
concerning that information.
(i) The commissioner shall present a summary of the comments
received from the comment period and information that supports a
water body designation as an outstanding state resource water to the
interim study committee on environmental affairs established by IC 2-5-1.3-4 in an electronic format under IC 5-14-6 not later than one
hundred twenty (120) days after the rule regarding the designation is
finally adopted by the board.
(j) Notwithstanding any other provision of this section, the
designation of an outstanding state resource water in effect on January
1, 2000, remains in effect.
(k) For a water body designated as an outstanding state resource
water, the board shall provide by rule procedures that will:
(1) prevent degradation; and
(2) allow for increases and additions in pollutant loadings from an
existing or new discharge if:
(A) there will be an overall improvement in water quality for
the outstanding state resource water as described in this section;
and
(B) the applicable requirements of rules adopted by the board
under this section are met.
(l) The procedures provided by rule under subsection (k) must
include the following:
(1) A definition of significant lowering of water quality that
includes 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 procedures do
not apply.
(2) Provisions allowing the permittee to choose application of one
(1) of the following for each activity undertaken by the permittee
that will result in a significant lowering of water quality in the
outstanding state resource water:
(A) Implementation of a water quality project in the watershed
of the outstanding state resource water that will result in an
overall improvement of the water quality of the outstanding
state resource water.
(B) Payment of a fee, not to exceed five hundred thousand
dollars ($500,000), based on the type and quantity of increased
pollutant loadings, to the department for deposit in the
outstanding state resource water improvement fund established
under section 14 of this chapter for use as permitted under that
section.
(3) Criteria for the submission and timely approval of projects
described 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 old
and specific to the outstanding state resource water.
(6) Criteria for using the watershed improvement fees to fund
projects in the watershed that result in improvement in water
quality in the outstanding state resource water.
(m) For a water body designated as an outstanding state resource
water after June 30, 2000, the board shall provide by rule
antidegradation implementation procedures before the water body is
designated in accordance with this section.
(n) A water body may be designated as an outstanding national
resource water only by the general assembly after recommendations for
designation are made by the board and the interim study committee on
environmental affairs established by IC 2-5-1.3-4.
(o) Before recommending the designation of an outstanding national
resource water, the department shall provide for an adequate public
notice and comment period regarding the designation. The
commissioner shall present a summary of the comments and
information received during the comment period and the department's
recommendation concerning designation to the interim study
committee on environmental affairs established by IC 2-5-1.3-4 in an
electronic format under IC 5-14-6 not later than ninety (90) days after
the end of the comment period. The committee shall consider the
comments, information, and recommendation received from the
department, and shall convey its recommendation concerning
designation to the general assembly within six (6) months after receipt.
(p) This subsection applies to all surface waters of the state. The
department shall complete an antidegradation review of all NPDES
general permits. The department may modify the general permits for
purposes of antidegradation compliance. After an antidegradation
review of a permit is conducted under this subsection, activities
covered by an NPDES general permit are not required to undergo an
additional antidegradation review. An NPDES general permit may not
be used to authorize a discharge into an outstanding national resource
water or an outstanding state resource water, except that a short term,
temporary storm water discharge to an outstanding national resource
water or to an outstanding state resource water may be permitted under
an NPDES general permit if the commissioner determines that the
discharge will not significantly lower the water quality downstream of
the discharge.
(q) Subsection (r) applies to:
(1) an application for 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) an application for a modification or renewal of an NPDES
permit;
that proposes new or increased discharge that would result in a
significant lowering of water quality as defined in subsection (l)(1).
(r) For purposes of an antidegradation review with respect to an
application referred to in subsection (q), the applicant shall
demonstrate at the time the application is submitted to the department,
and the commissioner shall review:
(1) an analysis of alternatives to the proposed discharge; and
(2) subject to subsection (s), social or economic factors indicating
the importance of the proposed discharge if alternatives to the
proposed discharge are not practicable.
(s) Subject to subsection (t), the commissioner shall consider the
following factors in determining whether a proposed discharge is
necessary to accommodate important economic or social development
in the area in which the waters are located under antidegradation
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, and
other necessary public services.
(9) Correction of a public health, safety, or environmental
problem.
(10) Production of goods and services that protect, enhance, or
improve the overall quality of life and related research and
development.
(11) The impact on the quality of life for residents in the area.
(12) The impact on the fishing, recreation, and tourism industries.
(13) The impact on threatened and endangered species.
(14) The impact on economic competitiveness.
(15) Demonstration by the permit applicant that the factors
identified and reviewed under subdivisions (1) through (14) are
necessary to accommodate important social or economic
development despite the proposed significant lowering of water
quality.
(16) Inclusion by the applicant of additional factors that may
enhance the social or economic importance associated with the
proposed 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 the
antidegradation 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 the
antidegradation demonstration received during the public
participation 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 to
accommodate important economic or social development in the area in
which the waters are located under antidegradation standards and
implementation procedures, the commissioner:
(1) must give substantial weight to any applicable determinations
by governmental entities; and
(2) may rely on consideration of any one (1) or a combination of
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, by operation of
law.
(v) Beginning June 1, 2009, all waters of the state are classified in
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 in
effect on January 1, 2009.
(4) High quality waters as described in 327 IAC 2-1-2(2), as in
effect on January 1, 2009.
(5) Waters of the state as described in 327 IAC 2-1.5-4(a), as in
effect on January 1, 2009.
(6) High quality waters as described in 327 IAC 2-1.5-4(b), as in
effect on January 1, 2009.
[Pre-1996 Recodification Citation: 13-1-3-4(a) part.]

Legislative History

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; P.L.81-2011, SEC.1; P.L.53-2014, SEC.124; P.L.112-2016, SEC.17.