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 LakeMichigan.
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 consentwithout 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 reasonablypermanent body of water that:
(1) existed on March 12, 1947;
(2) is substantially at rest in a depression in the surface of theearth that is naturally created;
(3) is of natural origin or part of a watercourse, including awatercourse that has been dammed; and
(4) covers an area of at least five (5) acres within the shorelineand 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 thewater, 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" meansa lake that has been used by the public with the acquiescence of ariparian owner.
(b) The term does not include the following:
(1) Lake Michigan.
(2) A lake lying wholly or in part within the corporateboundaries of any of the three (3) cities having the largestpopulation in a county having a population of more than fourhundred thousand (400,000) but less than seven hundredthousand (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 lineformed on the bank or shore by the water surface at the legallyestablished average normal level; or
(2) if the water level has not been legally established, the lineformed by the water surface at the average level as determinedby:
(A) existing water level records; or
(B) if water level records are not available, the action of thewater that has marked upon the soil of the bed of the lake acharacter distinct from that of the bank with respect tovegetation 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" meansthe natural condition as left by nature without manmade additions oralterations.
(b) As used in this section, "recreational purpose" means thefollowing:
(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 andadapted.
(c) The:
(1) natural resources and the natural scenic beauty of Indianaare a public right; and
(2) public of Indiana has a vested right in the following:
(A) The preservation, protection, and enjoyment of all thepublic freshwater lakes of Indiana in their present state.
(B) The use of the public freshwater lakes for recreationalpurposes.
(d) The state:
(1) has full power and control of all of the public freshwaterlakes in Indiana both meandered and unmeandered; and
(2) holds and controls all public freshwater lakes in trust for theuse of all of the citizens of Indiana for recreational purposes.
(e) A person owning land bordering a public freshwater lake doesnot have the exclusive right to the use of the waters of the lake or anypart 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 levelprohibited
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 affecta 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 toland from which the waters have receded or may recede from naturalcauses only. Accretion rights do not accrue to a riparian landowneras a consequence of lowering the public freshwater lake level by anyof the following:
(1) Drainage.
(2) Extending the shoreline into the water of the publicfreshwater lake by filling the public freshwater lake with soil orany other substance.
(3) Extending the shoreline away from the public freshwaterlake by excavating, dredging, or channeling through theshoreline.
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 butsubject to section 11 of this chapter, the department may notauthorize:
(1) the changing of the level;
(2) the dredging, other than to maintain channels or constructsea walls, beaches, or near-shore access improvements on a lotby lot basis; or
(3) the mining;of a public freshwater lake without giving notice and the opportunityfor a public hearing at the county seat of the county in which thepublic freshwater lake is located.
(b) The notice must:
(1) generally describe the project for which a permit has beenrequested to authorize;
(2) state that the public has a right to request that a hearing beheld on the proposed project;
(3) state that persons interested in or affected by the proposedproject 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 freshwaterlake is located, in the manner prescribed by IC 5-3-1.
(c) If a hearing is requested within ten (10) days after the finalpublication 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 asprescribed in subsection (b).
(3) Consider the public comments concerning the proposedproject before the department makes a decision concerning theproposal.
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 whollyor in part within any of the three (3) cities having the largestpopulation in a county having a population of more than fourhundred thousand (400,000) but less than seven hundred thousand(700,000).
(b) Sand mining may be conducted at the lake only if approved byresolution 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 theregulations and permit process of the United States Army Corpsof Engineers and the United States Environmental ProtectionAgency; and
(2) is subject to local supervision and monitoring by the cityengineer of the city in which the lake lies.
(d) A person performing the sand mining is liable for any damagesdirectly attributable to the sand mining operation to any real propertylocated within a one (1) mile radius of the lake.
(e) After mining operations are completed, the lake may not beused 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 theconstruction of a channel into a public freshwater lake unless: (1) the channel follows the path of a stream already inexistence; or
(2) the applicant proves that fifty-one percent (51%) of theproperty owners abutting the shoreline of the public freshwaterlake approve of the channel construction.
(b) This section does not prevent the department from issuing apermit 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 managementmust be obtained for the construction of sewage disposal facilitiesfor housing developments of at least five (5) lots if the developmentsare an integral part of a change in shoreline requested under thischapter.
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 ownedpond, lake, reservoir, or other body of water designed andconstructed primarily for the reduction or control of pollutants orcooling before discharge of the water into the public water ofIndiana.
(b) A body of water subject to this section does not become abody of public water for the purpose of permitting the state toregulate the quality of water.
(c) The state and the citizens of Indiana do not acquire acontinuing right or interest in a body of water subject to this sectionif the owner permits entrance to or recreational use of the body ofwater by the public.
(d) IC 14-22-10-2 applies to a body of water operated under thissection.
(e) This section does not affect the duties of the department toenforce Indiana fish and wildlife laws as the laws apply to publicentrance 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 ariparian owner to allow the public use of a lake, indicators ofacquiescence include the following:
(1) Evidence that the general public has used the lake forrecreational purposes.
(2) Evidence that the riparian owner did not object to theoperation by another person of a privately owned boat rentalbusiness, campground, or commercial enterprise that allowed
nonriparian owners to gain access throughout the lake.
(3) A record of regulation of previous construction activities onthe lake by the department or the department of conservation(before its repeal).
(b) Acquiescence does not exist if a lake has been adjudicatedafter March 12, 1947, to be a private lake and the department, or thedepartment of conservation (before its repeal), was a party to theadjudication.
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 theTippecanoe River that are formed by a dam or control structureowned and operated by a public utility for the generation ofhydroelectric power. However, this section does not restrict thedepartment's ability to regulate the safety or maintenance of a damor other control structure under IC 14-27-7.5.
(b) As used in this section, "alterations to the shoreline" does notinclude the making of canals or inlets.
(c) As used in this section, "construction" includes the building ofa pier.
(d) Notwithstanding any other law, the department may notregulate or interfere with alterations to the shoreline of orconstruction 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 operatedby a municipality or a public utility (as defined in IC 8-1-2-1) for thepurpose of providing water utility service to the public. The termdoes 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 notregulate 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 providingwater supply storage, seawall construction, or the maintenanceof water intake structures.
(2) Restoration or stabilization of the shoreline.
(c) This section does not restrict the department's ability toregulate the safety or maintenance of a dam or other control structureunder 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 thischapter expires two (2) years after the permit is issued.
(b) The commission may adopt rules under IC 4-22-2 providingthat 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 chaptershall do the following:
(1) Post the permit at the site of the activity authorized by thepermit.
(2) Keep the permit posted at the site where the activity isauthorized 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 forthe 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 14-25.5-4for 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 commitsa 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 chapteror IC 13-2-11.1 (before its repeal), the director may impose a civilpenalty 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; civilenforcement
Sec. 23. (a) Unless a person obtains a permit from the departmentunder 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 apublic freshwater lake:
(A) excavate;
(B) place fill; or
(C) place, modify, or repair a temporary or permanentstructure.
(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 waterline, as measured perpendicularly from the shoreline orwater line;
of a public freshwater lake.
(3) Change the water level, area, or depth of a public freshwaterlake or the location of the shoreline or water line.
(b) An application for a permit for an activity described insubsection (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 sufficientinformation concerning the proposed excavation, fill, temporarystructure, or permanent structure.
(3) A written acknowledgment from the landowner that anyadditional water area created under the project plan is part ofthe public freshwater lake and is dedicated to the general publicuse with the public rights described in section 5 of this chapter.
(c) The department may issue a permit after investigating themerits of the application. In determining the merits of theapplication, the department may consider any factor, includingcumulative effects of the proposed activity upon the following:
(1) The shoreline, water line, or bed of the public freshwaterlake.
(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 abuttingthe public freshwater lake or rights to access the publicfreshwater lake.
(d) A contractor or agent of the landowner who engages in anactivity described in subsection (a)(1), (a)(2), or (a)(3) must complywith the terms of a permit issued under this section.
(e) The commission shall adopt rules under IC 4-22-2 to do thefollowing:
(1) Assist in the administration of this chapter.
(2) Provide objective standards for issuing permits under thissection, including standards for the configuration of piers, boatstations, platforms, and similar structures. The standards:
(A) may provide for a common use if the standard is neededto accommodate the interests of landowners having propertyrights abutting the public freshwater lake or rights to accessthe public freshwater lake; and (B) shall exempt any class of activities from licensing,including temporary structures, if the commission finds thatthe class is unlikely to pose more than a minimal potentialfor harm to the public rights described in section 5 of thischapter.
(3) Establish a process under IC 4-21.5 for the mediation ofdisputes among persons with competing interests or between aperson and the department. A rule adopted under this subsectionmust provide that:
(A) if good faith mediation under the process fails to achievea settlement, the department shall make a determination ofthe dispute; and
(B) a person affected by the determination of the departmentmay 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 withcompeting riparian interests; and
(2) the completion of judicial review or the expiration of theopportunity for judicial review;
a party to the dispute may seek enforcement of the determination ina civil proceeding. The remedy provided under this subsection issupplemental 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 andthe advisory council established by IC 14-9-6-1, the commissionshall adopt, under IC 4-22-7-7(a)(5)(A), and maintain a nonrulepolicy statement that lists the public freshwater lakes in Indiana. Foreach public freshwater lake the statement must include the followinginformation:
(1) The name of the lake.
(2) The county and specific location within the county wherethe lake is located.
(b) A person may obtain administrative review from thecommission for the listing or nonlisting of a lake as a publicfreshwater lake through a licensure action, status determination, orenforcement 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 waterline 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 publicfreshwater lake.
(b) If the department, in writing, grants the petition undersubsection (a), the body of water becomes subject to this chapter.
As added by P.L.6-2008, SEC.12.