CHAPTER 2. LAKE PRESERVATION
IC 14-26-2
Chapter 2. Lake Preservation
IC 14-26-2-1
Applicability of chapter
Sec. 1. This chapter does not apply to the following:
(1) Lake Michigan.
(2) Land under the waters of Lake Michigan.
(3) Any part of the land in Indiana that borders on Lake
Michigan.
As added by P.L.1-1995, SEC.19.
IC 14-26-2-1.2
"Acquiescence" defined
Sec. 1.2. As used in this chapter, "acquiescence" means consent
without conditions, tacit or passive compliance, or acceptance.
As added by P.L.6-2008, SEC.3.
IC 14-26-2-1.5
"Lake" defined
Sec. 1.5. As used in this chapter, "lake" means a reasonably
permanent body of water that:
(1) existed on March 12, 1947;
(2) is substantially at rest in a depression in the surface of the
earth that is naturally created;
(3) is of natural origin or part of a watercourse, including a
watercourse that has been dammed; and
(4) covers an area of at least five (5) acres within the shoreline
and water line, including bays and coves.
As added by P.L.6-2008, SEC.4.
IC 14-26-2-2
"Natural resources" defined
Sec. 2. As used in this chapter, "natural resources" means the
water, fish, plant life, and minerals in a public freshwater lake.
As added by P.L.1-1995, SEC.19.
IC 14-26-2-3
"Public freshwater lake" defined
Sec. 3. (a) As used in this chapter, "public freshwater lake" means
a lake that has been used by the public with the acquiescence of a
riparian owner.
(b) The term does not include the following:
(1) Lake Michigan.
(2) A lake lying wholly or in part within the corporate
boundaries of any of the three (3) cities having the largest
population in a county having a population of more than four
hundred thousand (400,000) but less than seven hundred
thousand (700,000).
(3) A privately owned body of water:
(A) used for the purpose of; or
(B) created as a result of;
surface coal mining.
As added by P.L.1-1995, SEC.19.
IC 14-26-2-4
"Shoreline or water line" defined
Sec. 4. As used in this chapter, "shoreline or water line" means:
(1) if the water level has been legally established, the line
formed on the bank or shore by the water surface at the legally
established average normal level; or
(2) if the water level has not been legally established, the line
formed by the water surface at the average level as determined
by:
(A) existing water level records; or
(B) if water level records are not available, the action of the
water that has marked upon the soil of the bed of the lake a
character distinct from that of the bank with respect to
vegetation as well as the nature of the soil.
As added by P.L.1-1995, SEC.19.
IC 14-26-2-5
Public rights
Sec. 5. (a) As used in this section, "natural scenic beauty" means
the natural condition as left by nature without manmade additions or
alterations.
(b) As used in this section, "recreational purpose" means the
following:
(1) Fishing.
(2) Boating.
(3) Swimming.
(4) The storage of water to maintain water levels.
(5) Any other purpose for which lakes are ordinarily used and
adapted.
(c) The:
(1) natural resources and the natural scenic beauty of Indiana
are a public right; and
(2) public of Indiana has a vested right in the following:
(A) The preservation, protection, and enjoyment of all the
public freshwater lakes of Indiana in their present state.
(B) The use of the public freshwater lakes for recreational
purposes.
(d) The state:
(1) has full power and control of all of the public freshwater
lakes in Indiana both meandered and unmeandered; and
(2) holds and controls all public freshwater lakes in trust for the
use of all of the citizens of Indiana for recreational purposes.
(e) A person owning land bordering a public freshwater lake does
not have the exclusive right to the use of the waters of the lake or any
part of the lake.
As added by P.L.1-1995, SEC.19.
IC 14-26-2-6
Repealed
(Repealed by P.L.152-2006, SEC.4.)
IC 14-26-2-7
Construction of ditches or dams so as to lower water level
prohibited
Sec. 7. (a) This section applies to a public freshwater lake,
regulated or otherwise, that covers an area of at least ten (10) acres.
(b) A person may not order or recommend the:
(1) construction;
(2) reconstruction;
(3) recleaning; or
(4) repair;
of a ditch, dam, or other project that will affect or is likely to affect
a lowering of the water level of the public freshwater lake.
As added by P.L.1-1995, SEC.19. Amended by P.L.6-2008, SEC.5.
IC 14-26-2-8
Accretion rights
Sec. 8. Accretion rights in public freshwater lakes are limited to
land from which the waters have receded or may recede from natural
causes only. Accretion rights do not accrue to a riparian landowner
as a consequence of lowering the public freshwater lake level by any
of the following:
(1) Drainage.
(2) Extending the shoreline into the water of the public
freshwater lake by filling the public freshwater lake with soil or
any other substance.
(3) Extending the shoreline away from the public freshwater
lake by excavating, dredging, or channeling through the
shoreline.
As added by P.L.1-1995, SEC.19. Amended by P.L.6-2008, SEC.6.
IC 14-26-2-9
Repealed
(Repealed by P.L.152-2006, SEC.4.)
IC 14-26-2-10
Notice and hearing
Sec. 10. (a) Notwithstanding any other provision of law but
subject to section 11 of this chapter, the department may not
authorize:
(1) the changing of the level;
(2) the dredging, other than to maintain channels or construct
sea walls, beaches, or near-shore access improvements on a lot
by lot basis; or
(3) the mining;
of a public freshwater lake without giving notice and the opportunity
for a public hearing at the county seat of the county in which the
public freshwater lake is located.
(b) The notice must:
(1) generally describe the project for which a permit has been
requested to authorize;
(2) state that the public has a right to request that a hearing be
held on the proposed project;
(3) state that persons interested in or affected by the proposed
project may speak at the hearing; and
(4) be published two (2) times, seven (7) days apart, in two (2)
daily newspapers in the county in which the public freshwater
lake is located, in the manner prescribed by IC 5-3-1.
(c) If a hearing is requested within ten (10) days after the final
publication of the notice, the department shall do the following:
(1) Hold a public hearing in the manner stated in the notice.
(2) Give notice of the date, time, and place of the hearing as
prescribed in subsection (b).
(3) Consider the public comments concerning the proposed
project before the department makes a decision concerning the
proposal.
As added by P.L.1-1995, SEC.19. Amended by P.L.6-2008, SEC.7.
IC 14-26-2-11
Sand mining
Sec. 11. (a) This section applies to a private lake that lies wholly
or in part within any of the three (3) cities having the largest
population in a county having a population of more than four
hundred thousand (400,000) but less than seven hundred thousand
(700,000).
(b) Sand mining may be conducted at the lake only if approved by
resolution of the legislative body of the city after a public hearing.
(c) A sand mining operation at the lake:
(1) is subject to and shall be conducted in accordance with the
regulations and permit process of the United States Army Corps
of Engineers and the United States Environmental Protection
Agency; and
(2) is subject to local supervision and monitoring by the city
engineer of the city in which the lake lies.
(d) A person performing the sand mining is liable for any damages
directly attributable to the sand mining operation to any real property
located within a one (1) mile radius of the lake.
(e) After mining operations are completed, the lake may not be
used as a sanitary landfill or as a hazardous waste site.
As added by P.L.1-1995, SEC.19.
IC 14-26-2-12
Permit to construct channels
Sec. 12. (a) The department may not issue a permit for the
construction of a channel into a public freshwater lake unless:
(1) the channel follows the path of a stream already in
existence; or
(2) the applicant proves that fifty-one percent (51%) of the
property owners abutting the shoreline of the public freshwater
lake approve of the channel construction.
(b) This section does not prevent the department from issuing a
permit to construct small private drainage channels.
As added by P.L.1-1995, SEC.19. Amended by P.L.6-2008, SEC.8.
IC 14-26-2-13
Sewage disposal facilities for housing developments
Sec. 13. As a condition precedent to action by the department,
written approval by the department of environmental management
must be obtained for the construction of sewage disposal facilities
for housing developments of at least five (5) lots if the developments
are an integral part of a change in shoreline requested under this
chapter.
As added by P.L.1-1995, SEC.19.
IC 14-26-2-14
Applicability to private cooling or pollution control ponds
Sec. 14. (a) This section applies to an off-stream, privately owned
pond, lake, reservoir, or other body of water designed and
constructed primarily for the reduction or control of pollutants or
cooling before discharge of the water into the public water of
Indiana.
(b) A body of water subject to this section does not become a
body of public water for the purpose of permitting the state to
regulate the quality of water.
(c) The state and the citizens of Indiana do not acquire a
continuing right or interest in a body of water subject to this section
if the owner permits entrance to or recreational use of the body of
water by the public.
(d) IC 14-22-10-2 applies to a body of water operated under this
section.
(e) This section does not affect the duties of the department to
enforce Indiana fish and wildlife laws as the laws apply to public
entrance or recreational use of the body of water.
As added by P.L.1-1995, SEC.19.
IC 14-26-2-14.5
Determination of public use of a lake
Sec. 14.5. (a) For purposes of determining the acquiescence of a
riparian owner to allow the public use of a lake, indicators of
acquiescence include the following:
(1) Evidence that the general public has used the lake for
recreational purposes.
(2) Evidence that the riparian owner did not object to the
operation by another person of a privately owned boat rental
business, campground, or commercial enterprise that allowed
nonriparian owners to gain access throughout the lake.
(3) A record of regulation of previous construction activities on
the lake by the department or the department of conservation
(before its repeal).
(b) Acquiescence does not exist if a lake has been adjudicated
after March 12, 1947, to be a private lake and the department, or the
department of conservation (before its repeal), was a party to the
adjudication.
As added by P.L.6-2008, SEC.9.
IC 14-26-2-15
Applicability to Tippecanoe River impoundments
Sec. 15. (a) This section applies to impoundments of the
Tippecanoe River that are formed by a dam or control structure
owned and operated by a public utility for the generation of
hydroelectric power. However, this section does not restrict the
department's ability to regulate the safety or maintenance of a dam
or other control structure under IC 14-27-7.5.
(b) As used in this section, "alterations to the shoreline" does not
include the making of canals or inlets.
(c) As used in this section, "construction" includes the building of
a pier.
(d) Notwithstanding any other law, the department may not
regulate or interfere with alterations to the shoreline of or
construction on the impoundments.
As added by P.L.1-1995, SEC.19. Amended by P.L.186-2003,
SEC.70.
IC 14-26-2-16
Applicability to water supply reservoirs
Sec. 16. (a) As used in this section, "water supply reservoir"
means a body of water formed by a dam wholly owned and operated
by a municipality or a public utility (as defined in IC 8-1-2-1) for the
purpose of providing water utility service to the public. The term
does not include the following:
(1) Tributary streams that drain into the body of water.
(2) Wetlands associated with those streams.
(b) Notwithstanding any other law, the department may not
regulate the following activities conducted within the one hundred
(100) year flood level of a water supply reservoir:
(1) Sediment removal, dredging for the purpose of providing
water supply storage, seawall construction, or the maintenance
of water intake structures.
(2) Restoration or stabilization of the shoreline.
(c) This section does not restrict the department's ability to
regulate the safety or maintenance of a dam or other control structure
under IC 14-27-7.5.
As added by P.L.1-1995, SEC.19. Amended by P.L.186-2003,
SEC.71.
IC 14-26-2-17
Expiration of permit
Sec. 17. (a) Subject to subsection (b), a permit issued under this
chapter expires two (2) years after the permit is issued.
(b) The commission may adopt rules under IC 4-22-2 providing
that a type of permit specified in the rules expires more than two (2)
years after it is issued.
As added by P.L.1-1995, SEC.19. Amended by P.L.25-2009, SEC.1.
IC 14-26-2-18
Posting and keeping of permit
Sec. 18. The person to whom a permit is issued under this chapter
shall do the following:
(1) Post the permit at the site of the activity authorized by the
permit.
(2) Keep the permit posted at the site where the activity is
authorized until the activity is completed.
As added by P.L.1-1995, SEC.19.
IC 14-26-2-19
Remedies for violations
Sec. 19. The department may seek relief under IC 14-25.5-4 for
the violation of this chapter.
As added by P.L.1-1995, SEC.19. Amended by P.L.71-2004, SEC.4.
IC 14-26-2-20
Department may bring action for damages
Sec. 20. The department may bring an action under IC 14-25.5-4
for damages caused by a person who violates this chapter.
As added by P.L.1-1995, SEC.19. Amended by P.L.71-2004, SEC.5.
IC 14-26-2-21
Violations
Sec. 21. A person who knowingly violates this chapter commits
a Class B infraction.
As added by P.L.1-1995, SEC.19. Amended by P.L.71-2004, SEC.6.
IC 14-26-2-22
Additional civil penalties
Sec. 22. In addition to other penalties prescribed by this chapter
or IC 13-2-11.1 (before its repeal), the director may impose a civil
penalty under IC 14-25.5-4.
As added by P.L.1-1995, SEC.19. Amended by P.L.24-2001, SEC.3;
P.L.71-2004, SEC.7.
IC 14-26-2-23
Prohibited activities; permit applications; rules; mediation; civil
enforcement
Sec. 23. (a) Unless a person obtains a permit from the department
under this section and conducts the activities according to the terms
of the permit, a person may not conduct the following activities:
(1) Over, along, or lakeward of the shoreline or water line of a
public freshwater lake:
(A) excavate;
(B) place fill; or
(C) place, modify, or repair a temporary or permanent
structure.
(2) Construct a wall whose lowest point would be:
(A) below the elevation of the shoreline or water line; and
(B) within ten (10) feet landward of the shoreline or water
line, as measured perpendicularly from the shoreline or
water line;
of a public freshwater lake.
(3) Change the water level, area, or depth of a public freshwater
lake or the location of the shoreline or water line.
(b) An application for a permit for an activity described in
subsection (a) must be accompanied by the following:
(1) A nonrefundable fee of one hundred dollars ($100).
(2) A project plan that provides the department with sufficient
information concerning the proposed excavation, fill, temporary
structure, or permanent structure.
(3) A written acknowledgment from the landowner that any
additional water area created under the project plan is part of
the public freshwater lake and is dedicated to the general public
use with the public rights described in section 5 of this chapter.
(c) The department may issue a permit after investigating the
merits of the application. In determining the merits of the
application, the department may consider any factor, including
cumulative effects of the proposed activity upon the following:
(1) The shoreline, water line, or bed of the public freshwater
lake.
(2) The fish, wildlife, or botanical resources.
(3) The public rights described in section 5 of this chapter.
(4) The management of watercraft operations under IC 14-15.
(5) The interests of a landowner having property rights abutting
the public freshwater lake or rights to access the public
freshwater lake.
(d) A contractor or agent of the landowner who engages in an
activity described in subsection (a)(1), (a)(2), or (a)(3) must comply
with the terms of a permit issued under this section.
(e) The commission shall adopt rules under IC 4-22-2 to do the
following:
(1) Assist in the administration of this chapter.
(2) Provide objective standards for issuing permits under this
section, including standards for the configuration of piers, boat
stations, platforms, and similar structures. The standards:
(A) may provide for a common use if the standard is needed
to accommodate the interests of landowners having property
rights abutting the public freshwater lake or rights to access
the public freshwater lake; and
(B) shall exempt any class of activities from licensing,
including temporary structures, if the commission finds that
the class is unlikely to pose more than a minimal potential
for harm to the public rights described in section 5 of this
chapter.
(3) Establish a process under IC 4-21.5 for the mediation of
disputes among persons with competing interests or between a
person and the department. A rule adopted under this subsection
must provide that:
(A) if good faith mediation under the process fails to achieve
a settlement, the department shall make a determination of
the dispute; and
(B) a person affected by the determination of the department
may seek administrative review by the commission.
(f) After:
(1) a final agency action in a mediation under subsection (e)(3)
that makes a determination of a dispute among persons with
competing riparian interests; and
(2) the completion of judicial review or the expiration of the
opportunity for judicial review;
a party to the dispute may seek enforcement of the determination in
a civil proceeding. The remedy provided under this subsection is
supplemental to any other legal remedy of the party.
As added by P.L.64-2000, SEC.1. Amended by P.L.152-2006, SEC.3;
P.L.6-2008, SEC.10; P.L.25-2009, SEC.2.
IC 14-26-2-24
Public freshwater lake listing
Sec. 24. (a) Relying on recommendations of the department and
the advisory council established by IC 14-9-6-1, the commission
shall adopt, under IC 4-22-7-7(a)(5)(A), and maintain a nonrule
policy statement that lists the public freshwater lakes in Indiana. For
each public freshwater lake the statement must include the following
information:
(1) The name of the lake.
(2) The county and specific location within the county where
the lake is located.
(b) A person may obtain administrative review from the
commission for the listing or nonlisting of a lake as a public
freshwater lake through a licensure action, status determination, or
enforcement action under IC 4-21.5.
As added by P.L.6-2008, SEC.11.
IC 14-26-2-25
Public freshwater lake petition
Sec. 25. (a) The owner or owners of the entire shoreline or water
line of:
(1) a lake;
(2) a pond; or
(3) another reasonably permanent body of water that is
substantially at rest;
may petition the department to declare the body of water a public
freshwater lake.
(b) If the department, in writing, grants the petition under
subsection (a), the body of water becomes subject to this chapter.
As added by P.L.6-2008, SEC.12.