IDEM Closes Door on Ephemeral Stream Protection

Agency announces it will no longer regulate rain-dependent streams as part of its federal water quality certification
September 18, 2020

The head of Indiana’s environmental agency said it would no longer regulate ephemeral streams as part of its water quality certification, removing one of the only protections left in the state for the rain-dependent streams.

Indiana Department of Environmental Management Commissioner Bruno Pigott said the agency was making the change because of a U.S. Environmental Protection Agency rule finalized in June that narrowed the definition of waters protected by federal water regulations.

Ephemeral streams, a type of stream that only flows during and after rainfall or snow melt, now fall solely under state jurisdiction.

The streams can provide protection from flooding, filter pollutants, recycle potentially harmful nutrients and play a critical role in maintaining the quality and supply of our drinking water.

Pigott said he and the agency recognize that ephemeral streams provide many upstream and downstream benefits, but must abide by the EPA’s Navigable Waters Protection Rule, which specifically excludes the streams from being recognized as a “water of the United States” and thus is forfeited Clean Water Act protections.

“We will not be regulating ephemeral streams, as they are no longer included in the definitions of waters of the United States,” Pigott announced during a meeting of IDEM’s Environmental Rules Board Sept. 9. “And while we will not regulate them because they are no longer included in the new definition, IDEM will encourage the consideration of avoidance, minimization of downstream water impacts when filling ephemeral streams. And, therefore, that’s the agency’s position moving forward with ephemeral streams.”

Pigott said IDEM will continue regulating isolated wetlands, or wetlands not subject to regulation under the Clean Water Act, under the state’s Isolated Wetlands Law.

The law was passed in 2004, and was intended to protect wetlands not covered by federal law, but over time the state legislature has added exemptions to the rule that have left many isolated wetlands unregulated.

“Basically, the law says that at least here in Indiana, we’re not going to exclude a wetland just because it’s not attached to WOTUS. But that won’t touch ephemeral streams here in Indiana,” said Indra Frank, Hoosier Environmental Council Director of Environmental Health and Water Policy. “The isolated wetlands law starts out by saying it’s going to cover all the wetlands that aren’t covered under the Clean Water Act, and then it includes a list of exemptions. And, unfortunately, our legislature added to the exemptions during the last legislative session.”

Exemptions to the isolated wetland rule include manmade bodies of surface water of any size, wetlands on land used for agricultural purposes, and wetlands that exist as an incidental feature.

A bill introduced by Republican Senators Victoria Spartz, Blake Doriot, and Linda Rogers further weakened state wetland protections by deregulating thousands of miles of man-made ditches, drainage pipes, streams and sewers.

The bill’s authors said the bill would help farmers avoid disputes with IDEM and help them plant crops on time.

Similar rationales were used to garner support for the Navigable Waters Protection Rule and reduce the number of regulated waterways.

Indiana Attorney General Curtis Hill and 16 other state attorneys general supported the rule when it was first proposed, saying it eliminated “vectors for confusion.”

“Rather than tying jurisdiction to unusual weather events or ‘ephemeral’ hydrological connections, the Proposed Rule encompasses only those supplemental waters for which there can be no doubt as to their connection to jurisdictional waters,” they wrote.

The Indiana Pork Producers Association joined the American Farm Bureau Federation and other agricultural trade organizations in supporting the Trump administration’s rule and giving states more say on pollution controls.

“We believe the Proposed Rule will bring an end to the decades-long regulatory creep by appropriately giving effect to the statutory text and Congress’ intent, while balancing the important goal of environmental protection with Congress’ explicit policy to recognize, preserve and protect the states’ primary responsibilities over pollution control and over planning the use of land and water resources,” the groups wrote.

“Clarity” was the clarion call for many Indiana groups that would benefit from reduced regulations of wetlands, claiming that a previous incarnation of a rule intended to define “waters of the United States” had produced unnecessary confusion.

In 2015, the Obama administration introduced a rule that established eight categories of waterways, including ephemeral streams, as “waters of the United States.”

A coalition of 11 states, including Indiana sued the federal government to prevent the rule from taking effect. The rule was never implemented in Indiana and 27 other states and was eventually replaced by the NWPR.

The state’s water quality has mainly been a product of its own water regulations.

Between 2010 and 2020, the number of miles of streams facing impairments that prevent the designated use of a stream greatly increased.

In 10 years, the number of miles of streams facing E. Coli impairment nearly doubled from 12,717 miles to 24,001 miles; The number of miles of streams facing oxygen depletion rose from 1,471 to 3,476; and the number of miles of streams impaired by nutrients nearly tripled from 1,091 to 3,233.

About a third of the 63,511 miles of total rivers and streams in Indiana have a Category 5 impairment, meaning use is impaired and requires an EPA-approved daily limit on pollutants known as total maximum daily loads.

IDEM Closes Door on Ephemeral Stream Protection