Indiana's water-use laws are: If you own the land, you may tap the water

Editor's note: This is the third report in a three-part series that looks at the proposed use of water resources in Tippecanoe County to benefit economic development in Boone County.

LAFAYETTE, Ind. — If you own the land, Indiana law says you may use the water beneath the property.

This means that if Lebanon's LEAP developers buy land over the Wabash River aquifer in southwestern Tippecanoe County, they legally can tap into its water, pump between 10 million and 100 million gallons of water a day across one-third of the state to Lebanon for use at its 9,000-acre business park.

There's nothing that anyone here can do about it.

“Indiana code specifies that water must be put to reasonable and beneficial use," said Ryan Mueller, deputy director of regulatory services for the Indiana Department of Natural Resources during an April online discussion of Indiana's water rights.

If there is a dispute about what is reasonable and beneficial, it would be decided by the courts, Meuller said.

“Like most Midwestern and Eastern states, Indiana recognizes a system of riparian water rights where use of surface or ground water is associated with the ownership of land adjacent to or overlying ground water resources,” Mueller said.

More: LEAP project proposes piping millions of gallons of water from Tippecanoe County aquifer

More: A look at potential impact of transferring water from one part of the state to another

High-capacity water withdraw operations, such as the one proposed by LEAP, must register with the Indiana Department of Natural Resources after it goes into operation, Mueller said. It does not require prior approval from the state.

After the high-capacity water withdraw is in operation, the owners will be required to file an annual report with the state, said Mark Basch of the water rights and use section of the Indiana Department of Natural Resources.

If a high-capacity user of ground water causes smaller wells to dry up, then those responsible for the high-capacity use of ground water are required to fix the problem.

This happened during the 2012 drought when Fair Oaks — a large livestock farming operation in Jasper County — caused residential wells to run dry, said Keith Cherkauer, a Purdue professor of agricultural and biological engineering and the director of the Indiana Water Resources Research Center.

In that instance, Fair Oaks paid for new, deeper wells for the smaller-capacity water users.

The proposed LEAP project

Jane Frankenberger, professor and extension agricultural engineer, began that April discussion by noting, “If the analysis showed that the withdraw would be harmful to those who use the water today or will in the future — and I want to be clear, that this is not the case for the Lebanon withdraw — would it be allowed?

"Most likely … yes, in the Lebanon case," she said.

The Indiana Economic Development Corp.'s proposed LEAP development is on 9,000 acres in Boone County on the west side of Interstate 65 and mostly north of Indiana 32 plans. It is intended to house manufacturing operations as well as research and development businesses.

But Lebanon doesn't have the water to sustain such large manufacturing or R&D operations on the scale proposed for LEAP.

Ginger Davis, research hydrogeologist with Indiana Geological & Water Survey, said Lebanon is on a high-ground area, and ground water is moving in multiple directions. But the ground water there is in shallow systems, not on deeper bedrock system, like the aquifers in Tippecanoe County.

LEAP developers' solution is to tap the Wabash River aquifer in southwestern Tippecanoe County, pump the water 40 or 50 miles to Lebanon for treatment and use. As comparison to the vastness of the project, Indiana is 140 miles wide, so LEAP is proposing to pump water across roughly one-third of the state.

It's been estimated that the LEAP development will need between 10 million and 100 million gallons of water a day. By comparison, Lafayette uses between 10 million and 17 million gallons of water a day from the Teays River aquifer, Lafayette Mayor Tony Roswarski said.

Roswarski also wondered that if the aquifers in Tippecanoe County are tapped for Lebanon, might they be used in the future to meet the water needs of a growing metropolitan Indianapolis?

Indiana water use and its future

Whether the LEAP development ever materializes, the developers' plan at least started a statewide conversation about water use and water conservation in the state.

“The question for each of us to think about is: Are we happy with this situation?" Frankenberger asked during the online presentation in April. "And if not, what policy changes could be implemented to protect our water resources from future unsustainable withdraws and transfers.”

Cherkauer said, “From the perspective as one who studies water resources, the biggest thing is Indiana’s current law is only about reacting to problems when they’ve happened. I would like people in the state to think about the potential.

“What do we want the future of this state to look like?" Cherkauer said. "Do we want people to be able to move water anywhere in the state? Do we want to put regulations on that? If we put regulations on that, what would they look like?"

The April discussion indicated that surface water in the state is increasing, but ground water, such as aquifers, is the unknown because they are not monitored closely.

“I think it would take a lot for Indiana to go from where it is now, which is water rich, to a place where it would be really bad,” Cherkauer said.

“Indiana has plentiful water resources," Cherkauer said, "but they are not evenly distributed. That is why we’re having these conversations about moving water from one watershed to another.”

“In order to have a better understanding, ... we have to have better observational records,” he said, describing the need to have test wells to monitor aquifer levels.

In Ohio, high-capacity pumping from wells requires permits from the state, according to the April discussion.

Proposals in the Indiana General Assembly to address how to regulate the state's water resources have failed.

Basch noted Indiana has a drought plan, but it is vague.

The Department of Natural Resources and Homeland Security can issue a drought watch, which is mostly voluntary conservation of water, Basch said.

The governor can declare a drought warning, which sets priorities for water use. Some of the those priorities are health and safety, power production, agricultural and domestic purposes, Basch said.

As for who may tap into groundwater, what it can be used for and even if it can be pumped to another watershed for use, the answer comes back to ownership of the land above the aquifer.

Davis raised concerns about aquifer water levels.

“The trend of the water is declining, with obviously some droughts impacting that," Davis said. "We love to see that rebound and recharge of the aquifer with the water coming back up after droughts. But we are seeing a steady decline in those water levels.

“The consequences for over withdraw — there are many, and they have been misunderstood and not characterized within the state," Davis said in April. "I’d like to impress on you today the importance of characterizing these things before we over withdraw any aquifer.”

Reach Ron Wilkins at rwilkins@jconline.com. Follow on Twitter: @RonWilkins2.

This article originally appeared on Lafayette Journal & Courier: Indiana laws give water rights to those who own the land