The recent passage of Indiana Senate Bill 28, along with provisions from the original Indiana water rights legislation, may raise concerns for landowners who utilize groundwater resources. If you have significant water usage due to irrigation or other agricultural activities, being prepared for challenges from your neighbors and community may help ensure that you can continue to use your water resources.
SB 28 added provisions to the established Indiana groundwater rights law, Indiana Code 14-25-4, and now allows owners of Significant Water Withdrawal Facilities (SWWF) (greater than 70 gallons per minute pump capacity) to file complaints with Indiana’s DNR about neighboring significant volume water uses. Previously, this law only applied to complaints from small well users (those using less than 70 gallons per minute) against neighboring significant-volume well users.
Scrutiny over Indiana’s water use policy over the past year has also drawn attention to provisions within the legislation, which state that no significant volume of groundwater use shall cause permanent depletion of the natural resource. Even though a restricted-use area has never been designated by the DNR, the implications of the regulation may be used to restrict agricultural water use in the future.
IC 14-25-3-4 Restricted use areas; designation
Sec. 4. (a) The department may, by rule or order, when the department has reason to believe it is necessary and in the public interest, designate certain areas of Indiana where the withdrawal of ground waters exceeds or threatens to exceed natural replenishment as restricted use areas. Before the department designates an area as a restricted use area, the department shall do the following:
(1) Have surveys made of the groundwater resources of the area.
(2) Determine the safe annual yield of the basin.
(b) The department may do the following:
(1) Cooperate with the agencies of the federal government engaged in making groundwater surveys.
(2) Accept and use the findings of other agencies of the federal and state governments as a basis of the department’s decisions.
The combination of these legislative acts is a double-edged sword for Indiana irrigators, as it protects them from large industrial water use that may deplete the aquifer and cause challenges, but also raises questions about irrigation and its potential to deplete both surface water and groundwater resources.
At least one hydrogeology firm active in Indiana has predicted that irrigation water use has depleted or has the potential to deplete water resources in Fulton, Steuben, and LaPorte Counties in Indiana. Especially in such cases, it is essential for SWWF users to document their water use, well performance, and the impacts on water resources.
Monitoring Static Water Levels
A good starting point is to record static water levels before beginning irrigation each year, at mid-irrigation season, and again at the end of the irrigation season. Take these measurements at least 72 hours after the last pumping cycle has occurred. Multiple years of these records can be used to monitor the long-term impacts of pumping. Data from both irrigation wells and nearby home wells can help paint a picture of the effect or lack of natural resources in your area.
The Indiana DNR will develop rules to implement Indiana Senate Bill 28 in the coming months, and its staff will be invited to participate in irrigation and water use-related educational meetings coming this winter. If you are concerned about your water rights, water use, and the sustainability of the water resources in your area, be sure to participate in these discussions.
Over the past two decades, several landowners have organized groups interested in protecting the use of large volumes of water and have collected local data from agricultural wells. Their goal is to document well performance and any effect on water resources. A forerunner of this data collection was the LENK group, which represented irrigators in LaGrange, Elkhart, Noble, and Kosciusko counties in Indiana. In 2018, several of the well-monitoring efforts were consolidated under the banner of Midwest Water Stewards. https://midwestwaterstewards.com/. Midwest Water Stewards offers monitoring programs for SWWF that provide an in-depth look at how their wells perform, how pumping affects the water resources, and how seasonal fluctuations relate to rainfall and drought.
My SWWF was here first- will that matter?
Indiana, like most states east of the Mississippi River, follows a Riparian Doctrine. This doctrine allows landowners to use water from surface waters adjacent to their property or groundwater accessible from their property to the extent that their use does not interfere with other riparian’s water use. Indiana’s appellate level or higher rulings that make up the doctrine hold all landowners use of the water equal with no preference to who was using the water first.
Indiana follows what is termed the Regulated Riparian Doctrine policy, meaning the State has enacted specific requirements for water users ranging from well construction to investigations of water conflict disputes. A list of these statutes and rules can be found at the Indiana DNR Water Resources website. https://www.in.gov/dnr/water/statutes-and-rules/
Could my SWWF be Challenged by Local Lake Landowners?
Indiana freshwater lakes are protected from significant lowering of the lake level by SWWF pumping through Indiana Code 14-25-5. “Freshwater lake” is defined as being: 1) 10 acres in size, 2) of natural origin, 3) originally constructed to retain water, and 4) existed at least 5 years before SWWF’s pumping. For the reduction of pumping by the SWWF to be required, the DNR must document a significant lowering of the lake level by the SWWF. The SWWF must be within ½ mile of the freshwater lake, and the water level lowering must result in “Significant Environmental Harm” as described in Rule 312 IAC 11.5.
Long-term monitoring of lake levels is important for owners of SWWF within ½ mile of a lake. Lake level monitoring may already be in place through state or local governmental activities or through monitoring activities conducted by local lake landowners. If you believe that your water use may be challenged, starting a third-party monitoring program may be a very cost-effective way to distinguish your pumping effects from those of dry weather cycles that seem to happen every decade or so.