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 ofat 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 wherethe presence and action of the water has been so constant as togive to the bed of the lake a character distinct from that of thesurrounding land with regard to vegetation and the nature of thesoil.
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 beforeactivities referred to in subsection (b) begin;
(2) water from the ditch or drain continues to empty into thelake at the same location after the activities are completed; and
(3) the activities are conducted using best management practicesfor soil and erosion control.
(b) A person may not:
(1) locate, make, dig, dredge, construct, reconstruct, repair, orreclean; 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 waterlevel of a lake within one-half (1/2) mile of the lake without a permitfrom 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 personinterested in the proposed work by filing with the department thefollowing:
(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 bymaking an investigation of the land, water, lakes, fish, wildlife, andbotanical 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 hasnot 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 tothe 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 bedone provided certain safeguards are included in the proposed work,the department shall designate the safeguards that will in thedepartment'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 chapterby or for a county drainage board for a project for the reconstructionor maintenance of a regulated drain under IC 36-9-27, the departmentshall approve or refuse the request within one hundred fifty (150)calendar days after the request is deemed complete by thedepartment. A request held more than one hundred fifty (150)calendar days by the department without being either approved orrefused 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 aninvestigation under section 5 of this chapter, the department shallpromptly cause a public notice to be given by one (1) publication ina newspaper of general circulation published in the county in whichthe 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. Thenotice must contain a brief description of the proposed work and astatement of the department's reasons for refusing to issue a permitand of the safeguards, if any, that the department considers necessaryto protect the water level of the lake. The hearing shall be held by thedirector of the department or by the director's designee. A hearingheld under this subsection is a nonevidentiary hearing. The rules ofevidence and IC 4-21.5 do not apply to the hearing.
(b) If the request of a county drainage board for a permit for aproject for the reconstruction and maintenance of a regulated drainunder IC 36-9-27 is refused, the department shall publish the publicnotice required by subsection (a) within sixty (60) days after thepermit 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) yearsafter 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 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 14-26-5-10
Complaints; filing
Sec. 10. (a) Except as provided in subsection (b), a person, firm,limited liability company, or corporation that is adversely affected bya decision of the department may appeal the decision by filing acomplaint in the circuit or superior court of the county in which thelake or a part of the lake is situated.
(b) If the proposed work is the work petitioned for in a pendingdrainage proceeding, the complaint:
(1) must be filed in the court in which the drainage proceedingis pending; and
(2) shall be heard and determined as part of the drainageproceeding.
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 aditch or drain on the person's own land; or
(B) a petitioner or other party or public officer in a pendingdrainage proceeding.
(2) Set forth the plans and specifications of the proposed work.
(3) State the action taken by the department in granting orwithholding approval.
(4) State the objections and causes of appeal from the decisionof 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 causingsummons to be issued and served upon the director as summons areserved 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, orcorporation interested in or affected by the proposed work mayintervene 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 theissues 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 ofthe 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 corporationthat violates or threatens to violate this chapter is subject to aninjunction upon a complaint filed by any of the following:
(1) Any person whose land or interest in land may be damagedby 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 thischapter commits a Class B infraction.
As added by P.L.1-1995, SEC.19. Amended by P.L.71-2004, SEC.8.