Emergency Regulation Of Surface Water Rights

With the enactment of Indiana Code 14-25-5 (Emergency Regulation of Surface Water Rights) by the 1990 General Assembly, freshwater lake owners are protected against the impacts of high capacity pumping if it substantially lowers the level of the freshwater lake, resulting in significant environmental harm to the lake or adjacent property. A "freshwater lake" is defined in the statute to mean "a body of standing surface water that contains at least ten (10) acres at the body of water's normal level and:

1. Is of natural origin; or
2. Was originally constructed to permanently retain water and was in existence at least five (5) years before commencement of water withdrawals by a significant water withdrawal facility."

The term does not include Lake Michigan.

If an onsite investigation by the Department of Natural Resources discloses that the operation of one or more significant water withdrawal facilities (SWWF) has caused a significant lowering of the level of a freshwater lake, that the SWWF is located within one-half (1/2) mile of the freshwater lake, and that the lowering of the water level is likely to result in significant environmental harm, the director shall, by temporary order, declare freshwater lake emergency. The temporary order may restrict the quantity of water extracted by the SWWF and also provide for the restoration of the normal water level of the lake. "Significant environmental harm" is defined in Rule 312 IAC 11.5  to mean "damage to natural or cultural resources, the individual or cumulative effect of which is found by the director to be obvious and measurable (based upon the opinion of a professional qualified to assess the damage) and that:

1. Creates a condition where recovery of affected resources is not likely to occur within an acceptable period; and
2. Cannot be adequately mitigated through the implementation of a mitigation plan approved by the director.

A temporary order may not be issued if the investigation discloses that the lowering of the level of the freshwater lake was the result of improper management or poor maintenance by the lake owner.

The Water Rights and Use Section of the Division of Water will answer any questions concerning Indiana Code 14-25-5 or Rule 312 IAC 11.5. Contact the Section at (317) 232-4160 or toll free at 1-877-928-3755.