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Drainage Board Finally Goes the Whole 9 Yards For Eight Mile Creek Reconstruction as Construction Launched

By JIM BARBIERI
Right when flood waters were spilling over the banks of the Eight Mile Creek from spring rains, sending streams of water to bury good Wells County farm land, the litigation blockage to the flood and erosion controls needed in, around and east of Ossian finally was reported in settlement in early May.
From then on, the strides continued, and construction was launched this month -- starting with brush clearing westward from Ossian.
It is cited as the first full-scale Eight Mile Creek Main Channel Reconstruction Project in 60 years -- and sought by three separate sets of commissioners as drainage board members on project attempts over the past 10 years.
The way was cleared this spring for the flood control-erosion control construction launch on the stream which, in total in Wells County, runs between the Craigville area (upstream) and the Zanesville area (downstream), passing through Ossian.
The huge watershed is over 27,800 acres, largest in Wells County. There are more than 2,500 property owners in the watershed.
The settlement on the legal objections had come in an April offer by the complainants to drop their suit if the project would limit any work between County Road 1100N and County Road 100W (a distance of less than a half-mile) to clearing of logjams and trees associated with such, in accordance with the conditions of the previously agreed order applied to the lower reaches of the project downstream from 1100N (the lower five miles which were not being disputed).
The only trees cut in that 1100N to 100W (less than half-mile) stretch would be those necessary for removing the logjams.
Further asked by the objectors and accepted in the settlement was that along the Alan Gunkel and Robert Kumfer properties, clearing of the trees on the north (non-working) bank would be limited to the clearing of those trees below the elevation of the south bank. Noted was that the north bank in this area is quite a bit higher than the south bank. Indicated was that if there are areas where the tops of the banks are at the same level, all the trees to the tops of both banks could be cleared.
Affirmed in the review was that the conditions would not affect the 30-foot-wide construction access/filter strip on the south (working) side.
Project engineer John Dorow had affirmed April 21 his professional opinion that the conditions of the objectors in the settlement would not significantly affect the overall project aims -- the effectiveness of the flood control being the primary one and the one ardently sought for needs of farms east of Ossian and for others. Included among project backers were also a number in and around the town of Ossian.
The clearances in succeeding weeks were made official in signoffs by Indiana Department of Natural Resources and the administrative law judge plus the two parties. Thus there was no remaining legal restriction against proceeding on the project.
Accepted by unanimous action of the Wells County Drainage board was the low bid from last Oct. 7 of $524,000-plus of Tri-County Excavation of Ossian, with change orders both up and down to be instituted right away.
Indicated backthen was that assessments could be hiked up to 10 percent to take the bid on a project totally about $609,000 counting all costs including construction. Borrowing from maintenance funds to delay and limit commercial bargaining costs also was discussed. The maintenance fund for the Eight Mile was indicated at $295,000 and rising.
Engineer Dorow gave the notice to proceed to the contractor.
The now-agreed-settled litigation against the project had been launched in the 2003 complaint form by eight people who had filed a legal action appeal on the permit for the Eight Mile Creek Main Channel Reconstruction project.
The Indiana Department of Natural Resources, as reported here just before Christmas, had issued the permit in aftermath of and despite an October informational hearing at Norwell High School asked by opponents of the project.
On Jan. 7, the eight persons, recognized as Zanesville area or downstream Eight Mile area citizens, filed a petition with the Indiana National Resources Commission Division of Hearings in Indianapolis.
Asked then was administrative review and stay of the effectiveness of the floodway permit for the project.
The petitioners and case claimants iled via their Fort Wayne attorney.
The respondents became the Wells County Drainage Board and the Indiana DNR.
A prehearing conference was called by Administrative Law Judge Stephen L. Lucas for Feb. 4.
Using legal counsel of the Indianapolis IceMiller law firm, the drainage board agreed to the suggestion of the claimant citizens via their attorney to discuss the possibility of a settlement or mediation.
After hearing the proposal and a telephone conference of Feb. 10, it was the notation of the IceMiller counsel that what the petitioners were proposing at that time was that there be no reconstruction beyond County Road 100E.
However, a followup email indicated the petitioners’ settlement proposal was that reconstruction downstream of County road 100E be conducted in accordance with special conditions said agreed to in a prior case -- a 1999 case.
The drainage board’s deeming of that initial settlement offer to have been unacceptable, led to the attorney steps toward a “stay’’ hearing
The drainage board, consisting of Plummer, Paul Bonham and Fred Grandlienard (with Grandlienard replacing Kevin Woodward by court appointment for Eight Mile matters because Woodward lives in the watershed) brought out all this on the legal matters noting that an executive meeting of the Wells Drainage Board had been held in Indianapolis by prior legal notice for the discussion of litigation.
In official action on Feb. 18 in Bluffton, the Wells Drainage Board had voted 3-0 for engaging IceMiller, with attorney Terri Czajka and Dana Meier acting for that firm, to proceed on the case. They were authorized to notify the claimants’ attorney that the settlement proposal was “unacceptable.”
Similarly authorized was IceMiller meeting with the J. R. New Company for assistance as an expert firm on impact of the proposal. The Wells Drainage Board early this year at Dorow’s urging hired the J. F. New firm to do a wetlands delineation as a needed next step on the Eight Mile project.
Set for May 21-22 in the multipurpose room of the Wells Carnegie Government Annex had been a public-open hearing (actually a trial held in public, not a further opportunity for more public testimony after the extensive public hearings and testimony process in 2002 including a lengthy one at the Ossian School last July 3).
That May 21-22 trial (hearing) became moot when the settlement was reached and was called off
The project of more than a half-million dollars ($524,000-plus from the low bidder, Tri-County Excavation of Ossian) had been bid back on Oct. 7. By using about $118,000 out of maintenance funds built up toward renewed efforts for this project, the drainage board found then it could accept the low bid and go forward if not blocked legally.
As reported on April 21, the settlement plan actually would reduce the project need by about $32,000 to $492,000 and bring down to about $87,000 the needed amount out of the $295,000 maintenance fund -- plus some expected add-ons.
More recently, the Drainage Board has voted to seek bids from banks on loans of $300,000 or $575,00 to meet any interim needs as they occur since assessment revenues will come in over a period of years.
Related in the ardent petitioning for years for the Eight Mile project was that much of the Eight Mile was dug as a man-made ditch for drainage years ago.
While farmers east of Ossian in particular have cited big flooding losses of prime crops and ground, people in downstream rural residential locations have not wanted the channel or banks disturbed from natural settings.
The DNR informational hearing at Norwell last fall heard all this rehashed still more times, and the DNR Division of Water thereafter decided to go ahead and issue the permit with a few specifications to moderate environmental impacts.