Letting the algal blooms bloom 

Most of Indiana isn't distinguished by its lakes -- at least not like a few of its neighbors to the north and northwest. A notable exception is Steuben County, known as the "Land of 101 Lakes."

County leaders consider their lakes to be the county's greatest natural, cultural and economic resource, for obvious reasons: Steuben county's population rises from roughly 33,000 in the winter to 125,000 during the summer, according to Steuben County Commissioner Ronald Smith. Most of that is due to the county's water-based attractions and lakeside, second-home dwellers.

So some were surprised last month when Indiana State Chemist and Seed Commissioner Robert Waltz effectively overturned the county's attempts to restrict the use of phosphorus fertilizers within its own borders, citing the county's failure to demonstrate "that special or unique circumstances existed within (its) respective jurisdiction."

Numerous studies attribute rapid rises in freshwater algae, known as algal blooms, and increased aquatic weed growth to phosphorus runoff.

Elected county commissioners had already tried to enact restrictions on phosphorus-based fertilizer use back in 2007. If implemented, the county's proposed restrictions would have applied mostly to established homeowners. Farmers and those growing new lawns would have been exempted from the ban.

But authority over fertilizer use, they discovered, rested solely with the governor-appointed Indiana State Chemist and Seed Commissioner. The county's only recourse was a petition process, whereby counties and municipalities can request a waiver from the chemist to set their own fertilizer standards.

With so many lakes, Steuben County officials had hoped their special needs in this regard were self-evident. Yet late January, this year, the state chemist rejected Steuben's waiver request.

The decision has left some wondering what a "special or unique circumstance" is.

A failure to demonstrate

In its decision, the chemist's office noted it "accep(ted) the science presented -- that phosphorus in aquatic environments is generally regarded as a limiting nutrient, which, when in excess in water, may contribute to algal blooms and degradation of waters."

Despite this, the decision also stated Steuben County had "failed to demonstrate local cause and effect within (its) jurisdiction."

Linking phosphorus use to specific instances of algal bloom and aquatic weed expansion is notoriously difficult -- in part because phosphorus can enter bodies of freshwater through various means.

But some argue that requiring localized, causal proof misses the point. The effect of phosphorus on algal blooms and weed growth is well-documented, and recent studies indicate that lawn fertilizer is, indeed, a significant factor in raising phosphate levels.

A Wisconsin-based study by the United States Geological Survey, for example, concluded that "total phosphorus concentration in lawn runoff was directly related to the phosphorus concentration of lawn soils," and that dissolved phosphorus concentrations were twice as high in lawns that were fertilized with phosphorus when compared to those that weren't.

Other studies, such as one conducted by the University of Michigan in 2008, have drawn similar links.

"There's a lot of work out there that makes the relationship between phosphate levels in the lakes and runoff from lawns containing phosphate fertilizer," said Bill Schmidt, who, as a volunteer for the Steuben County Lakes Council, led the county's efforts.

In preparing their three-hour presentation, Schmidt and a team of volunteers spent about 30 months gathering data from soil and water tests and relevant literature.

"The point we were trying to make was, water quality is an extremely important issue in this county," he said. "I mean our economy is based on it."

According to rules governing the waiver process, however, the state chemist doesn't have to consider economics in making his decision, Schmidt said -- pre-empting much of the county's argument for exceptionalism.

"We were trying to find ways to talk about economics and not talk about economics, because we were trying to make the point that our lakes are what defines the county," Schmidt said. "Anything that degrades that, and that we can control, is something we should be allowed to control."

A home rule issue

Waltz, who was appointed by Governor Mitch Daniels in 2006, defended his decision in a phone interview, emphasizing that Steuben County had simply failed to prove its needs were unique. Erosion and soil movement were the biggest factors in freshwater phosphorus content, he said, in addition to other contributors like road runoff.

"We do value high quality water, there's no doubt about that," Waltz said in a phone interview. There just wasn't enough evidence that the Steuben County ban would make a significant impact.

Education was more important, he said, as limiting lawn runoff was only "a piece" of the overall picture.

"People need to know how to use it so they can control that piece," Waltz added. "But there are other pieces out there that probably have as much or greater impact and we need to get education on this as well."

Waltz also noted that enforcement on these sorts of regulations was next to impossible -- another point in favor of emphasizing education over regulation. There was simply no way to monitor what every lakeside homeowner did with his or her lawn.

Rae Schnapp, Water and Agriculture Policy Director for the Hoosier Environmental Council, argued this was really a "home rule issue" -- more about political authority than science.

"This decision is really much bigger than Steuben County," Schnapp said. "The state chemist is basically saying 'you counties don't have the authority to protect your own waterways, at least with respect to the use of fertilizer.'"

One problem, she said, was misplaced jurisdiction. Though the state chemist's job description includes "protection of our environment," its main concern is seed and fertilizer regulation. Protecting Indiana's water table falls more squarely under the purview of the Indiana Department of Environmental Management's Office of Water Quality.

"The State Chemist is an institution that represents the agricultural industry, with lots of information and lots of power," Schnapp said. "Industry wants to have one size fits all regulations across the state, they don't want to have to deal with county regulations that may differ.

Perhaps as problematic is the potential conflict of interest created by the chemist's direct link to Purdue University. State law requires the State Chemist be a professor of biochemistry at Purdue's School of Agriculture, and the commissioner's office is located on campus.

Given Purdue's preeminence in agricultural research and education, its relationship to the agriculture and food industries is a natural fit. Industry companies hire from Purdue's graduate pool. They rely on Purdue's research and innovation.

Those companies, in turn, help fund that research and innovation. In its 2007-2008 statistical report, the School of Agriculture lists major fertilizer-makers like Dow and DuPont as donors to its research programs, along with big industry groups like the Fluid Fertilizer Foundation and the Indiana Soybean Alliance.

A subjective standard

Though they didn't agree with the decision, both Schmidt and Smith said they believed Waltz made his decision in good faith.

"The state chemist was honest and fair," Schmidt said. "But there are people who didn't want to see our waver granted."

Steuben County's petition was the first to see a public hearing since the state granted the State Chemist its pre-emptive authority back in 2001. It was also the first rejected.

Schmidt argued that the real obstacle to getting the waiver is the laws themselves.

"I still don't know what a 'special condition' is," he said. "I think that it's a very subjective standard. The people who wrote this were not writing it so people could meet it."

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