CHAPTER 5. LOWERING OF TEN ACRE LAKES
IC 14-26-5
Chapter 5. Lowering of Ten Acre Lakes
IC 14-26-5-1
Applicability of chapter
Sec. 1. This chapter applies to freshwater lakes having an area of
at least ten (10) acres.
As added by P.L.1-1995, SEC.19.
IC 14-26-5-2
"Normal water level of a lake" defined
Sec. 2. As used in this chapter, "normal water level of a lake"
means:
(1) the water level of the lake established by law; or
(2) if the water level has not been established, the level where
the presence and action of the water has been so constant as to
give to the bed of the lake a character distinct from that of the
surrounding land with regard to vegetation and the nature of the
soil.
As added by P.L.1-1995, SEC.19.
IC 14-26-5-3
Permit required for certain work on ditches and drains; exception
Sec. 3. (a) This section does not apply to a ditch or drain if:
(1) water from the ditch or drain empties into a lake before
activities referred to in subsection (b) begin;
(2) water from the ditch or drain continues to empty into the
lake at the same location after the activities are completed; and
(3) the activities are conducted using best management practices
for soil and erosion control.
(b) A person may not:
(1) locate, make, dig, dredge, construct, reconstruct, repair, or
reclean; or
(2) order or recommend the location, establishment,
construction, reconstruction, repair, or recleaning of;
a ditch or drain having a bottom depth lower than the normal water
level of a lake within one-half (1/2) mile of the lake without a permit
from the department.
As added by P.L.1-1995, SEC.19. Amended by P.L.28-2007, SEC.1.
IC 14-26-5-4
Permits; request
Sec. 4. A request for a permit may be made by any person
interested in the proposed work by filing with the department the
following:
(1) A brief statement and description of the work.
(2) Plans and specifications for the work.
(3) An investigation fee of twenty-five dollars ($25).
As added by P.L.1-1995, SEC.19.
IC 14-26-5-5
Permits; investigation upon request
Sec. 5. The department shall promptly consider a request by
making an investigation of the land, water, lakes, fish, wildlife, and
botanical resources that may be affected by the proposed work.
As added by P.L.1-1995, SEC.19.
IC 14-26-5-6
Permits; issuance
Sec. 6. If the department finds that the proposed work will not:
(1) endanger:
(A) the legally established water level of a lake; or
(B) the normal water level of a lake whose water level has
not been legally established; or
(2) result in unreasonably detrimental effects upon fish,
wildlife, or botanical resources;
the department shall promptly grant the request and issue a permit to
the person requesting the permit.
As added by P.L.1-1995, SEC.19.
IC 14-26-5-7
Safeguards
Sec. 7. If the department finds that the proposed work could be
done provided certain safeguards are included in the proposed work,
the department shall designate the safeguards that will in the
department's opinion protect the lake.
As added by P.L.1-1995, SEC.19.
IC 14-26-5-7.4
Time requirements for approval or refusal of permit request
Sec. 7.4. If a request for a permit is submitted under this chapter
by or for a county drainage board for a project for the reconstruction
or maintenance of a regulated drain under IC 36-9-27, the department
shall approve or refuse the request within one hundred fifty (150)
calendar days after the request is deemed complete by the
department. A request held more than one hundred fifty (150)
calendar days by the department without being either approved or
refused shall be considered approved.
As added by P.L.180-1995, SEC.2.
IC 14-26-5-7.6
Refusal of permit request; notice and hearing
Sec. 7.6. (a) If the department refuses to issue a permit after an
investigation under section 5 of this chapter, the department shall
promptly cause a public notice to be given by one (1) publication in
a newspaper of general circulation published in the county in which
the lake or any part of the lake is located. The notice must state that,
on the date set forth in the notice, which may not be less than ten
(10) days after the publication, at a designated place in the county,
the department will hold a hearing on the request, and any interested
person appearing at the hearing will have the right to be heard. The
notice must contain a brief description of the proposed work and a
statement of the department's reasons for refusing to issue a permit
and of the safeguards, if any, that the department considers necessary
to protect the water level of the lake. The hearing shall be held by the
director of the department or by the director's designee. A hearing
held under this subsection is a nonevidentiary hearing. The rules of
evidence and IC 4-21.5 do not apply to the hearing.
(b) If the request of a county drainage board for a permit for a
project for the reconstruction and maintenance of a regulated drain
under IC 36-9-27 is refused, the department shall publish the public
notice required by subsection (a) within sixty (60) days after the
permit is refused.
As added by P.L.180-1995, SEC.3.
IC 14-26-5-8
Permits; expiration
Sec. 8. A permit issued under this chapter expires two (2) years
after the permit is issued.
As added by P.L.1-1995, SEC.19.
IC 14-26-5-9
Permits, posting, keeping
Sec. 9. 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 14-26-5-10
Complaints; filing
Sec. 10. (a) Except as provided in subsection (b), a person, firm,
limited liability company, or corporation that is adversely affected by
a decision of the department may appeal the decision by filing a
complaint in the circuit or superior court of the county in which the
lake or a part of the lake is situated.
(b) If the proposed work is the work petitioned for in a pending
drainage proceeding, the complaint:
(1) must be filed in the court in which the drainage proceeding
is pending; and
(2) shall be heard and determined as part of the drainage
proceeding.
As added by P.L.1-1995, SEC.19.
IC 14-26-5-11
Complaints; contents
Sec. 11. A complaint must do the following:
(1) State the interest of the person filing the appeal, whether the
person is:
(A) proposing to construct, reconstruct, repair, or reclean a
ditch or drain on the person's own land; or
(B) a petitioner or other party or public officer in a pending
drainage proceeding.
(2) Set forth the plans and specifications of the proposed work.
(3) State the action taken by the department in granting or
withholding approval.
(4) State the objections and causes of appeal from the decision
of the department.
As added by P.L.1-1995, SEC.19.
IC 14-26-5-12
Complaints; service of summons
Sec. 12. A complaint must be filed in the court within thirty (30)
days from the date of the decision of the department by causing
summons to be issued and served upon the director as summons are
served in other civil cases.
As added by P.L.1-1995, SEC.19.
IC 14-26-5-13
Intervention in proceedings
Sec. 13. Any person, firm, limited liability company, or
corporation interested in or affected by the proposed work may
intervene in the proceedings before the court.
As added by P.L.1-1995, SEC.19.
IC 14-26-5-14
Court to hear evidence de novo
Sec. 14. The court shall hear de novo all evidence relevant to the
issues determined by the department.
As added by P.L.1-1995, SEC.19.
IC 14-26-5-15
Appeals
Sec. 15. An appeal may be had from the finding and judgment of
the court as provided by law in other civil cases.
As added by P.L.1-1995, SEC.19.
IC 14-26-5-16
Injunctive relief
Sec. 16. A person, firm, limited liability company, or corporation
that violates or threatens to violate this chapter is subject to an
injunction upon a complaint filed by any of the following:
(1) Any person whose land or interest in land may be damaged
by the violation.
(2) The department.
As added by P.L.1-1995, SEC.19.
IC 14-26-5-17
Violations
Sec. 17. A person who knowingly violates section 3 of this
chapter commits a Class B infraction.
As added by P.L.1-1995, SEC.19. Amended by P.L.71-2004, SEC.8.