A spokesperson with the United States Army Corps of Engineers said the city of New Albany has not provided plans to restore a low-head dam in Silver Creek.
The federal agency issued cease and desist orders to the city on Aug. 13 for work performed at the Providence Mill Dam, also known as the Glenwood Park Dam, they say was done without authorization.
That came after New Albany Mayor Jeff Gahan declared “emergency maintenance” at the dam two months after 14-year-old Andre “AJ” Edwards Jr. drowned there. In early August, crews placed rocks and gravel in front of the dam to stop the recirculating current below.
The Indiana Department of Natural Resources halted the work, saying the city did not have permitting for the project. Indiana Attorney General Todd Rokita’s office also filed a court complaint on behalf of Indiana DNR asking to have the dam restored to its condition before the fill material was placed.
The Corps also wants to see that work reversed. In its cease and desist orders from last month, the agency gave the city 30 days to submit restoration plans. That deadline was last Wednesday. Corps spokesperson Katelyn Newton said in an email the city and its contractor responded to the agency last Tuesday, however that response did not include restoration plans.
She said the agency is “currently reviewing the response and determining next steps in order to resolve this violation,” which could include referring the matter to the United States attorney.
An ongoing fight
The future of the more than 100-year-old dam has been in flux for more than three years. In 2021, a contractor for River Heritage Conservancy secured a permit from the state to remove the dam for safety along Silver Creek as part of plans for Origin Park.
The city has challenged that at the state level and in local courts. Gahan has cited ecological, recreational and historical concerns. He said he wants to see the dam modified rather than removed. City engineer Larry Summers presented information to the city council in July and said they planned to move forward with a new application for dam modification, after being denied by Indiana DNR last year.
Since doing the work in August, the city has applied for permits from Indiana DNR and the Army Corps of Engineers. They also say there is more work to complete at the site.
The Corps has said they can’t accept the application due to the pending enforcement litigation. Indiana DNR also responded to the city stating that they are holding review of the permit while litigation continues.
Attempts at mediation
Gordon Ingle, an attorney representing the city, filed a motion last week requesting mediation in the case brought by the attorney general on behalf of DNR. The filing includes a reference to other litigation and states that the city has “tried numerous times to get the parties to a mediation in an attempt to resolve all the outstanding matters,” it reads.
A hearing on a preliminary injunction in that case, to prevent and reverse work, is scheduled for Oct. 1, but Ingle has requested it be moved to a later date. According to that motion, the city agrees not to re-enter Silver Creek with a permit or court order.
The city has also requested mediation in a judicial review case filed last December involving Indiana DNR and EcoSystems Connections Institute, LLC — the River Heritage contractor that has the permit to remove the dam.
Late last week, an attorney for the contractor (ECI) responded in a court filing saying such mediation was futile. He also said in the filing they were involved in settlements with the city over several months in 2022, but that the city walked away from the negotiations.
“The City and ECI are diametrically opposed in their positions. ECI is authorized and intends to remove the dam,” it reads. “The City is adamantly opposed to removing the dam.”
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