Indiana Attorney General Todd Rokita’s office filed court documents Wednesday seeking to prevent the city of New Albany from doing any more work at a low-head dam without a permit from the Indiana Department of Natural Resources.
The attorney, who filed on behalf of Indiana DNR, asks the judge for a preliminary and permanent injunction ordering the city to “cease construction in the channel of Silver Creek below the Providence Mill Dam” and to “remove any fill materials that it placed in the channel of Silver Creek” since Aug. 2. The dam is also known as the Glenwood Park Dam, and other names.
Last week, the city announced Mayor Jeff Gahan had authorized “emergency maintenance” at the six-foot-tall dam — a structure that has been in limbo for three years.
River Heritage Conservancy, the organization in charge of plans for nearby Origin Park, wants to remove the dam to make the creek safer. The city has fought that removal and say they want to modify it instead.
According to the city’s announcement, emergency measures were needed to “eliminate the hydraulic roller effect caused by the current condition of the dam.”
In May, 14-year-old Andre “AJ” Edwards Jr. drowned in the creek near the dam. His mother is seeking $700,000 from the city for his death.
But the state says the city has undertaken that project without necessary permitting from Indiana DNR, which they say is required under the state’s Flood Control Act.
In 2022, New Albany applied for a permit to build a rock ramp to eliminate the reverse current just below the dam. They were denied last November for having deficiencies in the application. The city has recently said they’re planning to reapply.
On Tuesday, Gahan was served with a class B infraction for directing the work, according to DNR spokesperson Holly Lawson. The work has consisted of crews filling in the area in front of the dam with gravel and rocks. Lawson also said DNR told crews to stop the unpermitted work Tuesday which she said they did.
It’s not clear if the work resumed Wednesday or whether the city intended to do more work, but a video posted on the city of New Albany’s government Facebook page just before 3 p.m. that day shows the progression of crews filling in the area and multiple shots of the dam then fully covered with rocks along the front.
According to the court complaint, Indiana DNR reached out to the city last week to ask about their authority to do this work without a permit from the state.
City attorney Shane Gibson responded to the agency Monday saying the mayor had the authority absent a permit and attached a copy of an executive order Gahan had signed over the weekend declaring a state of emergency. His order references New Albany and Indiana code.
Included as case exhibits are two executive orders signed Aug. 4. One is the emergency declaration, the second directs work under that declaration.
“Without emergency executive action, this immediate danger will remain in place and continue to pose a harm to the safety and wellbeing of the people of New Albany,” the orders read.
According to the complaint, “No Indiana law authorizes the city to perform construction activities in the floodway without first obtaining a permit from DNR.”
The city had not yet responded to the complaint as of Friday, according to online court records.
In 2021, a contractor for River Heritage Conservancy, which is in charge of plans for Origin Park, secured a permit from Indiana DNR to remove the more than century-old dam. The conservancy wants to make Silver Creek safer for recreational paddling.
Gahan’s administration soon challenged that, and has continued to fight the dam’s removal at the state and local level. He’s cited historical, ecological and recreational concerns if it’s removed.
The dam is at Silver Creek Landing, a New Albany-sponsored recreational project.
In addition to the request for injunction, the state asks the judge for a temporary restraining order preventing the city from placing fill material in the creek.
A copy of the infraction filed with the court shows Gahan is scheduled to appear for a hearing on the infraction Aug. 20 at 4 p.m.
Coverage of Southern Indiana is funded, in part, by Samtec Inc., the Hazel & Walter T. Bales Foundation, and the Caesars Foundation of Floyd County.
