SHOALS — The flood that swept 44 Martin County residences off their foundations in the record-setting 1913 flooding of the White River, during which the river crested at 42.2 feet, might’ve been part of the 1936 Congress’s motivation to regulate floodplain development with the passing of the Flood Control Act.
The legislation is said to have been birthed from several major flood disasters in the early 1900s. Originally, the Flood Control Act efforts focused on the reduction of flood losses by placing an emphasis on control of flood waters through the use of structural works like levees and dams, but despite the implementation of these strategies, major flooding disasters continued, and experts came to the realization that flood damage reduction programs needed to include measures that would increase awareness of risks. Spreading the word about those risks included the use of floodplain maps and wise use of the floodplains, ideas that were initiated by the Tennessee Valley Authority in 1953.
Again, in 1968, the issue was addressed by Congress when it passed the National Flood Insurance Act or NFIA, a program that is presently administered by the Federal Emergency Management Agency better known as FEMA. A key provision of the act prohibits FEMA from providing flood insurance to a community unless the community adopts the flood elevations and flood hazard maps developed by the federal government and enforces floodplain regulations that meet or exceed those stated in the Act.
Additionally, NFIA includes a provision intended to limit the cumulative impacts of floodplain encroachment, which include increasing flood elevations, which would lead to flood waters reaching locations they otherwise wouldn’t have, narrowing the floodway, which can result in increased losses if a structure comes off its foundation and joins the current to crash into other structures in its path, and increasing the flood water velocity, which increases its erosive power.
There has been ample opportunities in the 100 years since for governing bodies to provide education and enforcement of these standards resulting in awareness, and yet, shock has reigned in the lives of 14 Martin County residents along the White River who received notices recently from the Indiana Department of Natural Resources.
Those notices in short told residents that within 30 days of receipt, a plan must be in place to remove residences along the river and, within 60 days, they implement a restoration plan that needs approval from the DNR. If those benchmarks were not met, a civil monetary penalty may be assessed by the DNR against a person who fails to mitigate a violation within the time set forth. The notice also stated that each day during which the violation continues may be considered a separate violation for purposes of assessing a civil penalty of $1,000 could be assessed with an additional $500 for every day the owners fail to comply.
In April, these residents were stunned upon receipt, mostly due to the fact that their properties were built, purchased and inhabited without mention, posting or any prior notice by any governing or regulatory body. Owners had no idea their investment was at risk beyond the flood waters that they knew would inevitably make modifications, such as the stilts on which they rest above the river’s edge, a necessity.
It was noted at a June 4 Martin County Commissioners meeting during which residents extended a request that the commissioners write a letter to the state DNR appealing to government officials from whom the residents themselves have been unable to elicit a response. Admittedly, some of those who received notices in April had received a similar but less menacing one in February of 2017, but the state had never acted upon the threat, and it passed without another word until this spring when the issue arose again.
At a later date, property owner Cody Rousch produced a copy of an email from the state DNR in regard to the sale of one of his river cabins to current owner Ted Oshier. In that letter, the DNR gave its blessing to the cabin’s sale with only minor modifications necessary to bring it into compliance with the law. In spite of the gracious tone of the email Rousch received only months later, the DNR issued the most recent letter to Oshier, the property’s current owner, requesting that he tear down his newly purchased home or be fined thousands of dollars.
At the June county commissioners meeting, Martin County Attorney Dave Lett recommended that the commissioners once again leave it to the state to deal with.
“Since the state law says the state owns the waterways, I’d advise you let them deal with it,” Lett told the group.
Lett dismissed a resident’s submission of county ordinance 90-6, in which a different group of county commissioners had once accepted responsibility for enforcing the state’s floodplain laws, acknowledging their role in community care and committing to employing a building administrator. Lett advised that the ordinance had been repealed, and the commissioners accepted his direction without question.
Research following the meeting led to the discovery of ordinance 1995-5, which repealed 90-6 without explanation. However, ordinance 2014-20 that states, “Whereas, the Board of Commissioner’s of Martin County recognizes that it is necessary and appropriate to make property owners in Martin County eligible to purchase flood insurance,” but follows by stating the compliance with the law, as required to make residents eligible, is contingent on the state providing specific listed data that, up to that point, the state had failed to provide. There are no records of the Board of Commissioners or any individual commissioner taking initiative in requesting or inquiring after the data or revisiting the issue until the June meeting.
No motion was made to accept or decline Lett’s advice or approve or deny the request from the residence. The issue informally died as the meeting moved onto other business on the agenda, leaving affected residents to continue questioning what the future holds. One thing the residents were sure of was their attendance at the following night’s Shoals Town Council meeting in hopes of presenting their situation before more receptive local leadership. Questions remained unanswered for residents who had been brushed off with directives to again contact state leadership and hire joint legal counsel.
During the June 5 town council meeting, Shoals attorney Paul Vogler told the council that he has no memory of the issue arising before, and unfortunately, records prior to 2007, other than ordinances, were damaged in a leak at Shoals Town Hall. An attempt was made to salvage those records by sending them to a facility in Indianapolis to be dried, but unfortunately, before the documents were returned, the facility burned and the documents were lost, so no additional research into the town’s role in the situation could take place. Currently, the town council claims no jurisdiction over the issue. Ultimately, residents were left with the same advice they’d received from the commissioners.
Among the property owners gathered at the town council meeting was Oshier who could barely contain his distress over having received the notice only weeks after he’d invested the majority of his retirement he had earned while living in Lafayette where he grew up on a farm.
When he retired, he found what he described as his “own little piece of heaven,” in a skillfully crafted, elevated cabin in Martin County along the White River outside of Shoals.
Oshier had already attended a hearing in response to his appeal where his questions remained unanswered, and he described the judge as treating him like a common criminal when he’s never been anything but a law-abiding, tax-paying citizen. Oshier said he only can be found in violation of the law by accident because it never occurred to him that a long-standing cabin in a river community with no postings and along with other similar residences would be in violation of the law.
Another property owner, Adam Greene, has been hopefully looking for ways to cooperate with the government. Along with other cooperating residents, he has filed an appeal in hopes of finding an answer to the many unanswered questions. He has, as advised by both the county and town attorneys, hired a lawyer to handle his appeal that took place Tuesday.
Since the matter is in litigation, the DNR office could not comment on the notices outside of directing interested parties to their website where the state statutes can be read. A few initial appeals have already been heard. Residents who await their appeal hearing are trying to remain hopeful by searching for possible loopholes that have been revealed as answers have been sought.
One such hint of hope is that residences that are considered mobile and/or shelter houses are not a violation. That’s causing residents to scramble for ideas of ways to make their cabins fit into one of those acceptable categories. Greene said he is entertaining the idea of adding pontoons to his residential structure.
State Senator Eric Bassler was contacted last week and alerted of the situation. Bassler began researching the situation and contacting his affected District 39 residents. On Thursday, Bassler will meet with DNR officials.
“It’s nice knowing that someone at the state level is working with us on this,” he said.
Bassler can be contacted at 317-232-9453 to express concern for the situation. The Times Herald will continue to follow the story.