Lake Doctor | A Lilly Center for Lakes and Streams Podcast
Welcome to Lake Doctor: A Lilly Center for Lakes and Streams Podcast, your go-to source for understanding and preserving the health of our local lakes. Join hosts Dr. Nate Bosch, an expert in limnology, and Suzie Light, a lifelong resident and passionate advocate for our aquatic environments, as they dive deep into the challenges facing Kosciusko County's lakes.
Dr. Nate Bosch grew up in Michigan and received his doctorate in 2007 from the University of Michigan in limnology. With 18 peer-reviewed publications spanning research from the Great Lakes to smaller inland lakes and streams, Nate has been awarded the prestigious Chandler Misner Award twice by the International Association of Great Lakes Research. At Grace College, Nate is a professor in the environmental science program, dean of the School of Science and Engineering, and leads the Lilly Center team, serving the local community with dedication and expertise.
Each episode tackles these critical issues head-on, featuring insightful interviews with our partners, engaging Q&A sessions, and fun segments for the science enthusiasts among us. You'll get a behind-the-scenes look at the impactful research and education efforts spearheaded by the Lilly Center and discover how we can all contribute to safeguarding our precious freshwater ecosystems.
Tune in bi-monthly starting June 2024, and join the conversation by leaving comments or emailing us at lakes@grace.eduwith your questions and ideas. Supported by the K21 Health Foundation, Rick and April Sasso, and DreamOn Studios, this podcast aims to inspire and inform the next generation of water-literate citizens and environmental stewards. Learn more about our work and how to support us at lakes.grace.edu.
Lake Doctor | A Lilly Center for Lakes and Streams Podcast
Riparian Rights 101: What You Should Know about Lake Law with Steve Snyder
In this episode of The Lake Doctor Podcast, we dive into the often-overlooked world of riparian rights and lake law with local Warsaw attorney, Steve Snyder. Steve brings years of legal expertise to help listeners understand who owns what when it comes to Indiana’s lakes—where private property ends, where public access begins, and how shoreline use is governed. With practical examples, engaging stories, and clear explanations, he sheds light on the legal complexities that shape everyday life for lakefront property owners and recreational users.
Whether you’re a homeowner wondering about dock placement, a resident concerned about water access, or simply curious about how laws protect our waterways, this conversation will equip you with valuable insight. Steve and the Lilly Center team unpack the balance between individual rights and shared responsibility, reminding us that clear laws help preserve the beauty and health of our lakes for generations to come.
Learn more about the Lilly Center's work at https://lakes.grace.edu/.
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Thanks for joining us on the Lake Doctor podcast. I'm Suzy Light and my co-host, dr Nate Bosch, is the professional lake nerd.
Speaker 2:That's right, suzy. I got my PhD from the University of Michigan in Limnology, studying lakes and streams. In today's episode, we're excited to have Steve Snyder. He's a local attorney and we're going to be talking about riparian rights and lake law.
Speaker 1:We are excited about today's episode. You may learn if you are a member of the general public, whether or not you have a right to walk on the Lake Doctor podcast on our swell new set. We're really glad that you're here with us today.
Speaker 3:I'm happy to be here.
Speaker 1:Would you tell us a bit about yourself?
Speaker 3:I'm old, which means I've been around a long time. I grew up in North Webster, after I was about 10 years old, on the lake, decided at some point to go to law school, went away for six years to Valparaiso, got a job in Fort Wayne and after about three years I told my wife. I said there's supposed to be a lake out the back door and there wasn't. So a couple years later bought a cottage on Wawasee in 1976. Wow. And then sold both places and moved where I am now, 47 years ago. Wow, and then sold both places and moved where I am now 47 years ago.
Speaker 1:Wow, a lifelong resident, even though you took a little bit of a boomerang break.
Speaker 3:Yeah, it took me a while to figure out. This was not the place I wanted to move away from.
Speaker 1:I understand that you have a map or a photograph of the place where your home is from the 1950s.
Speaker 3:I have one from 1939, an aerial photo, and it's truly amazing because there's not much out there in 1939. I've seen that picture in his house and I have another one from, I would guess, 1954. It's when the Enchanted Hills channels were being dug and what's now Venetian Isles was being filled in. A disastrous photo for a disastrous couple projects, but very clear where Dillon Creek used to run, Right right.
Speaker 1:So you've seen a lot of changes in the lake from looking at historic photos to now. Are there things that people can do nowadays to help protect the lakes that weren't being done long ago?
Speaker 3:Well, the first thing is when the Department of Natural Resources started requiring permits for virtually all activities on the lake prior to 1959, if you wanted to dig a channel in the lake, you just went out and dug it and you know we've seen the results of that the sedimentation that's come into the lakes by runoff into those channels and then ultimately into the lake Nate. You'd know much better than I the depth of that sedimentation on various lakes, but it's significant.
Speaker 2:Yeah, we've got, I mean, two lakes that I know of that research has been done back. This was already back in the 1930s Lake Tippecanoe, which is our deepest natural lake in Indiana, and also Winona Lake, which is just down the hill from us here on Grace College's or just off of Grace College's campus. Both lakes over 45 feet of sedimentation already back in the 1930s, and so that has accumulated even more since then. So lots and lots of sedimentation.
Speaker 3:So the key is and it's not just lake residents, it's people along the streams that run into the lake.
Speaker 3:The creation of filter strips was a wonderful idea. That farm runoff tends to stay in the filter strip and not get into the streams that come into the lake. But there's probably been a lot of activity by lake property owners changing the way they fertilize their yard, Redirecting surface water runoff into some kind of a filtering mechanism before it gets to the lake. And I do a lot of real estate development on the lake and I've seen the precautions that are being taken by builders and owners to enhance that filter.
Speaker 2:Right yeah, one of the things we talk a lot to property owners around the lakes with that filtering idea is to have native plants on kind of the down slope boundary of your property, whether that, and for many that's sort of the lake side of their property, right as water is moving towards the lake and those native plants can intercept sediments, nutrients, excess water, water they're just great at filtering those things out.
Speaker 3:I happen to have a bed of natural coneflowers is one thing, and milkweed, and it not only attracts the birds and the bees as a pollinator garden, but the water that runs through there is filtered before it gets to a catch basin in my driveway that goes to the lake. That's the way people are doing it now, that they didn't even think about in 1960.
Speaker 1:So let's talk about 1960, because that's probably about the time that you, as a young kiddo, were traveling around with friends camping.
Speaker 3:Tell us about some of those camping fun things you did, well my family moved here in 1957 and actually rented a place on Cottingham Beach on Wawasee for the first six months we were here. I grew up in the middle of a farm field in central Illinois, so a lake was novel and I remember the first January going out on the ice it was crystal clear, with no snow on it in about 12 feet of water, laying down and watching the fish and I said this is just amazing. But having grown up in North Webster, tri-county Game Preserve was a hop skip and a jump away and my best friend and I would spend many a night camping in Tri-County. We weren't supposed to, but we did. We explored all the little ponds that are out there. We fished virtually every one of them.
Speaker 2:Did you have a favorite one of those? I mean, most of them have lake names.
Speaker 3:Yeah, Barrel and a Half was my favorite, but my favorite since then has become Goose Pond, which is just south of Papakeechee, because it's got the best bass. But Tri-County was an amazing asset that most people don't even know is there. You don't want to go out there in September through December when hunting season is on, but after January 1st it's wide open and most of the summer it's wide open and you can hike for two hours and never see another person but see a lot of nature.
Speaker 2:Yeah yeah, we sample a few of those lakes in there. It's a beautiful spot. What a gem that we have here locally.
Speaker 3:But the other things from the 60s that have changed is we had so much development from World War II to 1960.
Speaker 3:That was the 40-foot wide by 120-foot deep lot with no sewers, no wells and usually not even paved roads. And those got built on by people who wanted a fishing shanty, and that's what they were. Now, if somebody has a 40 by 120 foot lot on the lake, they want to put a 4,000 square foot house on it. It fortunately we have a lot of sewers around the lakes now, which solved that problem. We don't have the 55 gallon drums that used to serve as septic tanks, and the development that you will see from this point forward in my opinion will further enhance the lakes because those 40 by 120 foot lots, somebody's gonna buy three of them that are next to each other. They're gonna tear down everything that's there, clean it up and build a current spec house on it because it's on the lake, and that's what I'm seeing happening now. Even with some of the larger lots. If you get two of them side by side, somebody's going to buy them both.
Speaker 1:Nate, you had some formative experiences as a child growing up in the environment outdoors. Tell us about those things.
Speaker 2:Yeah, well, close to home. So I grew up in Holland, Michigan. Close to home was the pond that was on our property and that was a detention pond. So towards the end of the summer it would start to dry up and I can remember as a kid seeing all these little minnows and fish that were just kind of crawling or swimming through the mud as the water levels, going down and trying to catch as many as I could to save them and put them in the little creek a little further away from the house that still had water in it. And then we also would go my dad and some other dads from our church and their kids would go caving down in southern indiana and so really enjoyed being outside and exploring that very unique.
Speaker 2:Caving is not outside, caving is inside well, okay, but it's outside in the sense that it's out of your house. Okay, but you're right, you are going in to a cavern sort of environment. But I just loved in caves. I'd loved how it was just a totally different world right just underground most people would never think of that and the critters that live there, the different rock formations, and a lot of adventure too. So really good memories being outside, both with lakes and streams on my own property, but also going down here to Indiana as well.
Speaker 1:Do you still cave?
Speaker 2:Yeah, I love it. Just took some students caving here just a couple months ago and taking some family members and friends here next month for another caving trip down and still going to southern Indiana. There's a lot of interesting caves down there.
Speaker 1:Steve, do you still fish?
Speaker 3:I do Not as much as I would like to, but I get a line wet at least once a week. I get a line wet at least once a week. So far this year it hasn't been very promising. The weather hasn't been good, but it's going to warm up here and that'll bring the bass into the shallow water.
Speaker 2:Is that your favorite?
Speaker 3:largemouth bass that's my favorite largemouth or smallmouth, Okay, and fortunately where I'm at there are plenty of both Cool.
Speaker 1:Well, I'm in the fishing camp, not the caving camp.
Speaker 2:Okay, thanks. Well, you could come sometime if you'd like.
Speaker 1:Thanks, steve. I've heard people talk about I'm going to the lake and no matter where they are going, it is the lake. But lakes have laws. There are laws around lakes. Would you tell us about those?
Speaker 3:Well, the state really didn't pay much attention to the lakes. If you go back to the 1800s, farmers thought lakes were an inconvenience. They couldn't plant anything in them. Livestock would get stuck in the mud next to the lake, there were swamps all around them and the state didn't really pay much attention until 1947, when the Lakes Preservation Act was enacted by the legislature and that act actually declared all of the public, as they call them, public freshwater lakes in Indiana. Now I don't believe there's a saltwater lake in Indiana, but we never question the legislature.
Speaker 3:And then they started issuing regulations in regard to development.
Speaker 3:You couldn't do certain things without a permit from the DNR, the first one of those being dig channels, because most of the channels on the lakes in this county were dug long before the DNR regulated anything. They were dug in the 20s and 30s, right up until the mid-50s, and then the DNR said in 1959, you have to have a permit to do that. They still granted some permits, but nothing compared to what was going on in the post-World War II boom. Then the DNR, just like any other governmental agency, adopts more regulations as they're trying to control things the way that they want them controlled and as lake property increased in value. People became more protective of what they had, but for a long time they didn't know what they had. Because they know they had a place that fronted on the lake and they stuck a pier out there and it was probably a three foot wide pier, 40 feet long and had a 14 foot aluminum boat tied up to it. Then we ended up with a pontoon boat and a speed boat and three jet skis.
Speaker 1:And bigger boats.
Speaker 3:And bigger boats and, as a result, what had been sufficient to handle a pier and a boat for property owners became insufficient Well, as soon as you get crowded, you're going to have disputes. Insufficient Well, as soon as you get crowded, you're going to have disputes. The Natural Resources Commission was then mandated by the legislature to entertain riparian disputes between landowners. So if you got lot 10, lot 11, a common line between them and the pi peers got all whopper-jawed because they were too big, the Natural Resources Commission would appoint an administrative law judge to resolve that dispute. They settled on a case from Wisconsin called Nosek v Stryker and that became the guide in Indiana for determining riparian rights.
Speaker 3:And the first question is, of course, what is a riparian right? Actually, it's not a riparian right, it's a literal right. Riparian. R-i-p-a-r-i-a-n is what everybody uses and the courts have used. But if you go back in the law far enough, they're literal rights L-I-T-T-O-R-A-L. That's what applies to a lake. Riparian rights applied to rivers. Well, the courts couldn't figure out which one was which, so they just interchanged them. So now we deal with riparian rights and almost all the case law and the regulations deal with the riparian rights and almost all the case law and the regulations deal with riparian rights.
Speaker 3:But the Nosek versus Stryker case from Wisconsin set up a set of guidelines for determining what area in the water adjacent to your lakefront property that you had rights that might be superior to the general public, or at least superior to your neighbors, and those rights were putting out a pier, swimming, fishing, boating, boating but boating was pretty limited, okay. And if you own a 40-foot lot on the lake and it's pretty much shoreline perpendicular to your lot lines, the first method is just extend those lot lines into the water. Those are the boundaries of your riparian area and that works wonderfully until you get to a section of the lake where it's a curved shoreline, either concave or convex, and then you had to go back through case law or through decisions made mostly by the Natural Resources Commission. As to how you do this on a given lake, steve Lucas, in his capacity with the Natural Resources Commission, drafted a guide called Information Bulletin 56.
Speaker 3:Not a regulation, it's not a statute, it's not binding law. It's nothing more than a compilation of a couple dozen cases decided in Indiana, along with general surveying techniques for determining riparian area. So when you have property lines that meet the lake line at an oblique angle, what do you do? When you have a round lake or a long lake, what do you do? And he's got little maps in this that show you what you do. Most of the problems that are encountered by people around our lakes come from a curved shoreline, or a lot line that meets the shoreline at something less than a 90-degree angle.
Speaker 1:So how far out can I put my pier?
Speaker 3:Maximum pier length in Indiana is 150 feet, or to a point where the lake is consistently more than 6 feet deep, but at least 75 feet.
Speaker 3:Okay, I still don't know Well if I go out from my shoreline and I get to a point where it's 6 feet deep and it never comes back up, then 75 feet or that point is where I can go. In my case I've got 130 foot pier because at the end of my pier it's only four and a half feet deep and depends on the lake. Some lakes it gets deep quicker. You go to webster lake, it gets deep pretty fast from the shoreline. You go to wawe and you can walk out 200 feet and you're still only at four feet of water. So it varies from lake to lake.
Speaker 3:But that's the rule that the Natural Resources Commission adopted for the length of your pier. The width of your pier is really controlled only by the boundaries of your riparian area. If you have 40 feet of riparian area, technically you could use a pier 40 feet wide. The Natural Resources Commission, in Information Bulletin 56, says we prefer to have 10 feet of open space between any pier and an adjacent riparian line, mostly impractical in today's world. So they will allow five feet. But that's not a regulation. You can go right up to your riparian line until there's a dispute. And when the Natural Resources Commission was still hearing these matters, they would require usually at least a five-foot setback from that riparian line. Now that they're not hearing those cases anymore, we don't know what the courts are going to do.
Speaker 1:So who hears the cases now?
Speaker 3:Courts.
Speaker 1:Just a regular court.
Speaker 3:The Natural Resources Commission, effective July 1 of 23, said we're not going to handle riparian disputes between adjacent property owners anymore. They had to go to the legislature to amend the statute. That was done. I have to assume it was a cost savings. They were having trouble finding administrative law judges and we now have, effective July 1 of this year, kind of a group administrative law judge statute that combines all kinds of different ALJs from different agencies. But prior to that the Natural Resources Commission had its own administrative law judges. Most of them became astute as far as riparian law was concerned. Once they gave that out and said we're not doing it anymore. Then the only place you can go is a court to make that determination and the courts not having had the need to hear these cases for a significant number of years. There aren't too many judges out there experienced in riparian law, but that's why they require us to write briefs to explain the law.
Speaker 3:So residents need to care about this because Well, they need to understand that their use of the lake is limited, and the Lakes Preservation Act in 1947 placed that limitation. If you go back to the 1800s, the boundary lines of lakefront properties typically went out to the middle of the lake. Wow, and you can still find that in some places on, I'm trying to think, backwater Lake.
Speaker 3:I can show you a bunch of properties where the property lines go clear across the lake. They go over to Camp Adventure and that went away in 1947, but on the title records it still shows. But now your rights are limited. Most people think that there's probably a 200-foot limitation on what you can do. The pier limit, we know, is 150 feet. Some people put a swim raft out beyond that. But the high-speed zone in the lakes or lakes that have no speed limit is 200 feet. So everybody supposedly puts their buoys out at 200 feet to keep the boats away. So now, within 200 feet of shore, the only restriction on the public is you can't go on private property, meaning somebody else's pier. But you can drive your boat two feet from the seawall if you want through a swim area, as long as you're only going idle speed.
Speaker 1:Okay, so public can't just walk up on somebody's pier and go fishing off of a personal pier.
Speaker 3:No, there have been wives' tales in Indiana for decades that there was some kind of an easement five feet around all the lakes and anybody could walk there. And that was just what it was a wives' tale. You owned that property. It was private property, unless it had been dedicated to the public through a plat or somebody granted an easement. Private property. You can't walk on it, but you can get out of your boat and walk up to the shore and look at the seawall from that far away and there's nothing that anybody can do.
Speaker 1:For our listeners. That far away was two feet.
Speaker 3:Well, you could walk right up to it, but I mean you get very close to it. We can't keep the public public away from the riparian area of a property owner because it's public lake.
Speaker 1:But the pier is private.
Speaker 3:But the pier is private.
Speaker 2:So a couple of interesting things that I wanted to pick up on from what you were saying there, Steve. One is the sort of lake property and how the lake itself is held in the public trust of Indiana. Would that be the case for other Midwestern states as well around us?
Speaker 3:I don't believe so. I think in Minnesota that was attempted by the legislature, fought in the courts because it was a taking of private property and the court said you can't do that. Nobody challenged that in Indiana in 1947. But I think the reason that 1952 statute was adopted with the 200-foot limit was a compromise of a threatened legal action because it gave something back to the riparian owners.
Speaker 1:Because it gave something back to the riparian owners. Did it also not take Indiana, the state, off the hook that they're not the owner, so therefore they don't have to maintain things?
Speaker 3:That's a good question and I don't really think we have an answer. The DNR has done its best over the last few years to avoid spending any more money than absolutely necessary. There have been several lawsuits over dams on public lakes and the DNR so far has managed to avoid the obligation to repair any of them based on the Lake Preservation Act. If there's a separate contract between the DNR and, for instance, the Webster Lake Association, that's a different story. But in just general repair, no, the DNR is not going to spend the money to do it.
Speaker 3:The DNR spends a reasonable amount of money through LARE grants, through patrols with the DNR officers. But when it comes to rehabilitating something, the only major project I can think of in the last 20 years in this area has been Sylvan Lake, and Sylvan Lake had trouble. They had a dam that could have gone at any minute and they actually drained the lake while they were repairing that. But that project was joint between NDOT and the DNR because State Road 9 ran right alongside Sylvan Lake. So NDOT funded a significant portion of that project that now holds Sylvan Lake in place. Anymore, I don't think we can count on the DNR to do much as far as enhancing the lakes other than preserving them.
Speaker 1:So I think about Steve. At one time you were the attorney for the city of Warsaw, and Center Lake is one of the lakes in Warsaw. It has an earthen dam on the north shore of Center Lake that was in need of repair, and trying to get the DNR to move on that was rather difficult. What happens in those kind of instances? Is there a property owners association or who addresses that?
Speaker 3:Well, for a long time nobody, and that's why some of the dams in our lakes are as in bad a shape as they are. What's happened a couple times is we've had property owners associations who were rather loosely formed, just voluntary associations who would attempt to do what they could. But the amount of funding necessary to repair a dam is immense. So the only alternative was to form a conservancy district and give that district the obligation of maintenance of the dam. That's been completed now on Syracuse and Wawasee, Wawasee not only had a dam in Syracuse, across from Town Hall, nobody knew about the fact there was a dike on Wawasee that had been constructed. Back in the 50s when a channel was dug and I actually talked to the gentleman who dug the channel and I said what did you make the dike out of?
Speaker 3:And he said the spoils from the channel, which were muck. Well, that muck's not a very good dike and it started to leak about 12, 14 years ago. It got plugged but when the DNR realized what was there had it ever completely gone away it would have lowered Wawasee about three and a half feet and all of it would have gone to the commercial area on the south side of Syracuse down Turkey Creek to Milford.
Speaker 1:Wow.
Speaker 3:So they're a good vehicle. Webster Lake is in the process of doing the same thing right now to form that conservancy district, to repair that.
Speaker 1:So conservancy districts can be a really good thing for lakes, especially when they need to address an issue.
Speaker 3:Right.
Speaker 1:If there isn't an issue, do they need to form?
Speaker 3:You know, a lake typically is not going to have significant issues unless there is some kind of a water retention facility kind of a water retention facility. And if there is, I'd almost guarantee that virtually all of them are in need of significant repair because they've been there so long.
Speaker 1:Nate. Is that something that the Lilly Center looks at or monitors?
Speaker 2:The dams themselves or the water control structures as they're sometimes called.
Speaker 2:We have stream sensors that are in place near a lot of these dams, and so we're in constant communication with lake associations then that operate those different lakes and the properties around the lakes, representatives of those property owners, and so we also are in contact quite often with the DNR about operations.
Speaker 2:Some of the dams actually are able to mechanically be changed to allow more water out at certain times, maybe anticipating a wet weather event, whether it's snow melt or big rainfall, different times of the year.
Speaker 2:Some of our lakes have different legal levels, where there's a certain level for summertime and then there's a different level for the rest of the year, and so those lake level control structures or dams need to be operated to change lake level one time of the year versus another time of the year.
Speaker 2:So we have a lot of communication. We don't operate any of those control structures ourselves as the lily center, but we we work with those other groups to make sure that they're being managed appropriately, and one of the things those stream sensors that we have allow for is, since they are live on our website constantly. The data is being uploaded to our website in real time. These dam operators on the different lakes can look and see what those flows are and you can see what's called the hydrograph, which is the graph of the water flow that's going over that dam, and you can see then the inflows coming into the lake and you can then make a judgment on hey, inflows are coming up and outflow is kind of stable. So we need to increase the amount of water coming out of the dam so that the water level doesn't go up and flood people's homes or yards, and so you can sort of anticipate water levels then with those stream sensors.
Speaker 1:And that information is available where.
Speaker 2:On our website lakesgraceedu. If you look under the live data area there, you can see that If you look under the live data area.
Speaker 1:there you can see that, Steve, do you use data when you're preparing a case to present to either the DNR or to the court?
Speaker 3:Well, it depends on what the case is. You typically know, because if it's a riparian dispute we have to have a surveyor. And we had surveys not only of the lots, the terrestrial boundaries of lots, but we then extend them in the appropriate method out into the water and survey the piers as well to determine whether the piers are within the riparian boundaries or across them. And there are a couple surveyors in the area who have become very talented at that. But I've got files full of peer surveys and that's what happens.
Speaker 2:So a term that was brought up earlier was riparian versus littoral, and those are aquatic terms that we use a lot in the field of limnology.
Speaker 2:So riparian in the field of limnology, so riparian, typically, as you said, steve will refer to that land-water boundary along a stream, whereas littoral is what we call that near-shore area along a lake. So technically, the littoral zone of the lake is that ribbon of shallow water that goes out as far as light goes, down to the compensation depth, which is the one percent light level. So it's where plants, those aquatic macrophytes, aka weeds, would grow around the lake, where, where sunlight can get all the way to the bottom of the lake and those weeds can start to grow up from the bottom of the lake. So it's intriguing that it's sort of acknowledged that we're using the word riparian incorrectly.
Speaker 3:That's right. We're still using that. Yeah, but it's now been used for so many years by the courts. We're stuck with it. Yeah, but you know, the riparian area is unique on public lakes, but it becomes even more unique on a private lake, and this county has an awful lot of private lakes.
Speaker 2:Papakichi would be one that comes to mind.
Speaker 3:Papakichi is a private lake and it's the most developed of the private lakes. The others might be 6, 10, 20-acre ponds. That somebody has.
Speaker 3:And it's a totally different set of rules. On a private lake the property lines run out into those private lakes. So the person who owns let's assume you have a nice round lake like this and you got three people around it their property lines go out to the middle of that lake and they can only use the water that is above the property they own. They can't trespass onto the rest of the lake that's owned by someone else. That's only in the case of private lakes, but that is the law and it's still the law as far as private lakes are concerned.
Speaker 2:Wait. So on Papakichi then, which is probably our largest private lake, or most developed, as you said. So, technically, if I'm out there on a stand-up paddle board and I'm leaving from shore, from a cottage of a friend or family member, I can't then go off to the left or to the right 50 feet because I'm actually technically getting on someone else's property.
Speaker 3:But for the developers who put Papakeechee together in the 20s? That would be the case, Okay, but the developer who owned all of the land where Papakeechee is and all the land around it, when he started putting those plats together that are all around the lake, he reserved one foot around the lake for ownership by the developer. So technically, none of those lots on Papakeechee ran to the water's edge. Therefore nobody had rights out into the water. If you go back and look at the 1929 restrictive covenants that were with those plats, you had to be a member of the Papakeechee Association and you had to pay your dues and then you got to use the lake. Oh, interesting.
Speaker 1:So make sure the friend you're visiting when you go to Papakeechee Paddleboard has paid his property dues. That's exactly right. There's been a lot of litigation on Papakeechee Paddle Board has paid his property dues.
Speaker 3:That's exactly right. There's been a lot of litigation on Papakeechee over that, because the regulations also say you can't have any motors on Papakeechee electric or gasoline. So you know, you get your paddle boat, your canoe, your kayak and a rowboat.
Speaker 2:But no motors. Now our streams. Here in Indiana ownership along those property ownership is a little different because the landowner who owns the land along the stream and oftentimes the property boundary is the center line of the stream for two abutting property owners, they actually technically own that ground going out into the stream Right.
Speaker 3:And then the riparian rights take on a different category and that is the protection of downstream adjacent owners to that stream and the supply of water that comes down that stream stream and the supply of water that comes down that stream. And if I'm an upstream owner I can't build a dam and create a lake if it cuts off the water supply to the downstream owners. Now those go back to farmers who had to have it or the person who had the gristmill that needed the power to run the mill, but it's still out there.
Speaker 3:I can't cut off somebody else's water supply.
Speaker 1:So if I own a portion of Cherry Creek and a tree falls and blocks the water flow downstream, I'm responsible for getting that tree out of there.
Speaker 3:Not necessarily. That's an act of God. God can block streams.
Speaker 2:But you can't, Susie. Okay, I'm not going to chop the tree down.
Speaker 3:Actually, when you're looking at streams like that, one of the most powerful agencies in this state is the drainage board, and if Cherry Creek is a legal drain, which I believe it is, then that means the drainage board will take care of either forcing you to remove it or assessing everybody else on Cherry Creek to pay the cost of removing it.
Speaker 1:Nate, how does legislation like Steve's talking about affect the Lilly Center?
Speaker 2:Well, some of it will affect people's sense of ownership of the lakes and streams, right With what those rights are or what those rights are limited to. It might change someone's perception of how much they want to care for that water body that's local there to them. We also can see changes in legislation of the lakes themselves. Steve was mentioning before some of these earlier legislative changes.
Speaker 2:I can recall from some of the research reports that I've read of when marl, for instance, used to be mined from our lakes. So marl is a calcium carbonate. It's actually formed in the presence of algae doing photosynthesis. And so in our lakes, when it's really sunny and clear and algae, those phytoplankton, are doing a lot of photosynthesis. They're using up carbon dioxide out of the water and so they're raising the pH of the water, and so calcium carbonate can actually start to precipitate, makes the water look kind of an aqua sort of color, and those little flecks of calcium carbonate, which is the same thing as limestone, start to fall to the bottom, and so folks a while back found that that's a pretty convenient way to get limestone to make concrete, and so we had cement companies around many of our lakes yeah yeah, syracuse Lake, dewart Lake and Wabi Lake were the epicenters of marl mining.
Speaker 3:Syracuse was probably by far the biggest. Right at the end of the park on Medusa Street was a marl plant and there are still some sunken barges out there. I've never found one and I don't want to, but there was actually a railroad that ran from that moral plant over to wabi and then on over to the big four in milford and they'd haul it out in by rail yeah, and so so that then with I don't know which one of those two legislative acts that you mentioned before in the 40s or 50s, but that's right around when the DNR then forbid that to be done anymore.
Speaker 3:It would have been the Lakes Preservation Act that gave them the authority to do that. And then it took a few years for them to exercise that authority.
Speaker 2:But that brought moral mining to the end More recently. I could think of legislation surrounding some of our wetlands. We've talked about wetlands before on this podcast series before, and our legislature here in Indiana has lessened some of the protections on wetlands in recent years, and so that obviously has an impact because, as we've talked about, wetlands are sponges and kidneys. They help keep our lakes and streams cleaner, and so, with less protection on those wetlands, it would reason that those lakes and streams would have less protection than from those sediments and nutrients that could come in.
Speaker 1:Steve, protecting wetlands, we've learned, has been really important. Is any of your work directed toward helping protect wetlands?
Speaker 3:Not really. I've been involved in some litigation that has been directed to trying to protect wetlands or lakes in general, to protect wetlands or lakes in general. But there are organizations around that have undertaken that the Wawasee Area Conservancy Foundation, the Watershed Foundation. They've undertaken a lot of steps to acquire those. The DNR used to accept. The DNR used to accept donation of wetlands and spend the money necessary to protect them. Not so much anymore.
Speaker 3:There was a time when development adjacent to a wetland was not a problem as long as the appropriate erosion controls were in place. But that left developers with a significant chunk of wetland that they were still paying taxes on and at today's rate, believe me, it's pretty high and they tried to figure out what can I do with this wetland. I contacted an appraiser in Louisville who's no longer with us, but Daryl Hawkins would appraise wetlands for their wetland value as opposed to a normal appraised value of a piece of real estate. And some of the wetlands around here had amazing values because of what they did before the water got to the lakes, of what they did before the water got to the lakes. One of them in particular was out north on the Tippecanoe River on the north side of Warsaw and he appraised 17 acres at $645,000 because of its value of filtering what was going into the Tippecanoe River.
Speaker 2:Yeah, we call those ecological services, yeah, and to be able to monetize those can be, then, a powerful way to protect some of these ecosystems.
Speaker 3:Yeah, because what people would do, developers in particular? They'd have what turned out to be a very valuable asset that they had no use for, so they would donate it. That particular one north of Warsaw was donated to the DNR, which gave the owner a charitable contribution. That was an amazing way to protect those wetlands. I've heard of one case since then where the IRS rejected that valuation and I can't find Daryl anymore. There may be an appraiser out there somewhere to do it. That, to me, would make the availability of wetland preservation much greater, because you would have farmers who say I can't do anything with it.
Speaker 3:I can't drain it, so why can't I donate it to some agency that's going to maintain it? Take the charitable contribution and the public gets the benefit of that.
Speaker 2:Right. On the other hand, though, if a wetland property is appraised for a much higher value, then does the county assessor get involved? And now someone might have to pay a much higher tax.
Speaker 3:Well, they might depending on who the charitable organization is that takes title to it.
Speaker 3:Obviously, if it's donated to the DNR, there's no tax on that, and if you're a 501c3 charity, there's probably not going to be any tax on that, although that one's still a little iffy. There's probably not going to be any tax on that, although that one's still a little iffy. But right now a lot of wetland area in this county is taxed as what's called excess residential, and that's a term that somebody came up with in the State Board of Accounts or somewhere, and it sets a value, a base value, on agricultural property that is not used for a residence, because you get a one-acre tract for your residence. So if you've got your residence and then you've got 20 acres of wetland, it's mandated to be taxed as excess residential. The base rate for excess residential right now is $6,500 an acre. So if you've got 20 acres of wetlands, you may have a very significant tax bill even though you can't use it for anything, and the only way to avoid that is to put it in a DNR classification program which limits the assessed value to $17 or $18 an acre.
Speaker 1:Is there a downside to doing that?
Speaker 3:Yeah, if you ever take it out, you have to repay all the taxes you saved and there are other restrictions the DNR has on how you can use it while it's in that program.
Speaker 1:So what other interesting cases have you like done around water? What's been something that's stuck out in your mind?
Speaker 3:You know, by far the most significant number is a peer dispute between neighbors. Number is a peer dispute between neighbors. I've had I just finished one on Waller C two 40 foot wide lots and they couldn't decide where the terrestrial boundary line was, so they couldn't determine where their riparian line was out into the lake. Both of them met the shore at roughly a 90 degree angle and they were what turned out to be fighting over nine inches of lakefront. And we had one hearing in front of the Natural Resources Commission, one in the local court before that was finally resolved after about a three and a half year period.
Speaker 3:Those things can go on forever. The most recent case I had in front of the DNR on Hoffman Lake there had been an application filed to create a boat ramp and the DNR approved the boat ramp along with a 28-foot-long gravel drive to get through it from a public street. I happened to represent a person who was right across the street from it and she knew people were going to be turning around in her yard all the time because there wasn't enough.
Speaker 3:It's only a 20-foot-ride street. So we appealed it and the DNR took the position on appeal that they don't have any jurisdiction landward of the shoreline. Now the statute gives them jurisdiction in, along or over the shoreline and I'm saying okay, along the shoreline means both sides of it. But I took that up on appeal to the full Natural Resources Commission. They said no, we don't have jurisdiction. They have some other jurisdiction that's specific by regulation.
Speaker 3:15 years ago I had people on Winona Lake who had a natural shoreline and every winter two or three feet of that would fall into the lake from the ice or the wind. They wanted a concrete seawall. Concrete seawalls were not permitted unless there's another one within 250 feet of you. Well, there wasn't.
Speaker 3:This was 240 feet of lakefront and I called a friend of mine who was a seawall installer and I said can you put a seawall in one foot back from the shoreline and never have that one foot fall in? He said sure, that's easy. We put in 240 feet of seawall one foot back from the shoreline, because the DNR said we don't have any jurisdiction landward of the shoreline. They then adopted a resolution that said if you're going to put in a retaining wall, the bottom of which is lower than the lake level. You have to put it in at least 10 feet back from the water. I know why they did that because they didn't want anybody else to do it again. But those are the unique things you run into. Sometimes the DNR wants to control things and other times they say, no, we're not touching that one.
Speaker 1:Did the seawall end up?
Speaker 3:Oh, of course, the first winter that foot was gone and there's 240 feet of seawall. Winter, that foot was gone and there's 240 feet of seawall. And that regulation that they did to cure that took effect on July 1 of one year and I was having lunch with a guy who said you know, I've got a problem, just like that. Well, he had like two and a half weeks to get his retaining wall in one foot back from the lake, but they got it done. But now, you know, that's not a possibility. Now they want and I agree with this to a great extent they want to see the glacial stone, they want to see a bioengineered seawall, and if all of the lakes had done that 100 years ago, it would be practical.
Speaker 3:But, it's not practical now.
Speaker 1:But putting glacial rock in front of a seawall is a good idea.
Speaker 2:Yeah, because typically what will happen when waves come against a concrete seawall is that wave energy then will. Some will splash up and over, it can cause erosion, some will down well, and so it can scour the of the lake and and move out maybe some of the beneficial aquatic macrophytes that are there, and then also that energy continues across the lake. We call it the bathtub effect, where it's just kind of choppy water back, bouncing back and forth between seawalls. But when those glacial stones are in front of the concrete seawall, as that wave comes in, that energy gets dissipated and broken up amongst all of those rocks and so you don't get the splashing and the erosion up over or the down. Scouring down just in front of what we call the toe of that seawall on the lake side, and also the glacial stones can be a good way for turtles and frogs to get up on the seawall to sun themselves at different times of the day or year too.
Speaker 3:And the bad side of that is it also traps whatever's floating in the lake. So you will have to clean it. So you will have to clean it. It will fill up with decaying leaves, seaweed, beer cans that don't decay, etc. And I just learned not too long ago that, even if you don't want to pile it up to the top of your seawall, placing it below water level in front of your seawall, if you've got enough depth to do that, will serve a similar purpose, especially the backwash that goes out into the lake. But with wakeboard boats, uh, if you have a three foot, three and a half foot wake hitting your seawall, it's going to be in your grass yeah, there's not much you can do about that size of a wave coming in.
Speaker 1:So how do scientists like Dr Bosch and attorneys work together to make our legs better?
Speaker 3:Well, I think part of it is educating the courts of what protections need to be considered when there is some type of an action in court involving a lake, and it may be the Natural Resources Commission approved a permit that the next-door neighbor doesn't like because it will have ABC effect on the lake. Those approvals by the Natural Resources Commission are appealable to court, and they are appealable either to a court in Marion County or a court where the lake is located. So in this county we would have two judges that would hear that kind of dispute. And I think it's a matter of me saying to Nate I need you to come in with me in this case and explain why this should not be done, and Nate, I know, has just served as an expert witness or is serving as an expert witness in a case, and that's where we have to use science to promote the lake and protect the lake from the standpoint of some improper development.
Speaker 1:How was that experience it's been?
Speaker 2:really interesting because this is a field that I have not known a lot about until now.
Speaker 2:I've known Steve for a number of years.
Speaker 2:I've known Steve for a number of years, we've had some conversations, but being a little bit more involved then in a case and a dispute of this kind has been really interesting to see.
Speaker 2:And I really appreciate that partnership between the attorneys who are on the law side and interpreting the law, and then the administrative law judges who are looking at the law and interpreting the law but then bringing along an expert like myself to be able to explain, because the law will say something like this can be permitted if it doesn't degrade the quality of the lake water or something like that.
Speaker 2:Right? So what does that mean and how do you quantify that? And so me as a lake scientist, to be able to speak into the situation and say, well, if we do this or if we add this, this is going to cause then this type of algae to grow, or it's going to cause this amount of erosion or something, and that then will degrade the water in this way. That then will degrade the water in this way. And so we can actually use science, use some of the research that we've done to be able to quantify and point to changes, and then that helps inform, then the legal process, which I think is how it's supposed to work, and I've really enjoyed being involved in the process.
Speaker 3:And the scientific evidence is most valuable, in my opinion, at the agency level Because at that level you supposedly have scientists evaluating an application and making a determination that it will or will not have a negative effect.
Speaker 3:I was involved in one case over in Noble County of a confined animal feeding operation for I forget how many hogs.
Speaker 3:It was a lot. It was roughly a half mile from Wawasee and all the fields on which the effluent from that confined feeding operation was going to be spread were roughly a half mile from Wawasee. There is still is a hydrologist in Noble County who I hired to oppose this and I said please calculate, if this effluent is spread on the fields a half mile from Wawasee, how long it takes to get to the lake. So using well logs and the soil samples that come with them, he showed that that gradient ran down to Wawasee and calculated that in 354 days after application it would be in WOSI. That was evidence presented to IDEM, contrary to their own evidence, and they still approved the CAFO. So that was 20 years ago. Whatever, science has gotten a little better and the agencies are a little more receptive to outside sources of that scientific evidence than they were 20 years ago. They were very protective of their turf and they didn't like somebody else coming and telling them you're not correct.
Speaker 2:Well, none of us like that right, that's right.
Speaker 2:I'm always wrong, wrong, so it's okay um and that affluent that would have been spread on a field most likely would have contained phosphorus yeah, so I don't know about that case in particular, but when we're talking about manure application onto agricultural fields, that manure regardless of what type of poultry or livestock it may be is going to have a nutrient content in it and if it's applied at certain times of the year, like frozen ground in the winter, which is not supposed to be done it could run off.
Speaker 2:Done it could run off and, rather than being incorporated and pulled in by those plants that are growing on that agricultural field, instead it could run off either surface or those nutrients could infiltrate into the soil and then, through lateral flow, through groundwater, those nutrients then could get carried into a water body. Now a lot of our agricultural producers have to do manure management plans and there's soil testing, and so there's a lot that goes into manure placement and timing and to try to avoid that runoff so that it can be good nutrition for the plants but not nutrients for our weeds and algae in our lakes.
Speaker 1:Steve, you've mentioned that laws around water have changed over time. Do you foresee any future changes happening?
Speaker 3:Hopefully not. My opinion is we're at where we need to be right now, both from a standpoint of protecting the public's rights in the lakes and protecting the lakefront property owners rights in the lake. There's been a lot of compromise, most of which has landed on the side of the public as opposed to the property owners. Riparian rights are a property right. You can't have riparian rights unless you own property that abuts a public lake. So when the government agencies say we want to do this, they're going to take your property right. That's pretty well ensconced in the law and it's going to be very difficult for that to change, even if the legislature tried. And the other point is when you look at the value of lakefront properties and the people who own those lakefront properties, there's probably more political influence there than you'll find in any other limited area in the state. And that means that legislation that would erode those property owners' rights is going to be very difficult to achieve.
Speaker 1:Steve, thank you so much for being here today and sharing your legal wisdom with us as we talk about lakes and riparian rights. We really enjoyed having you here today.
Speaker 3:It's been my pleasure.
Speaker 1:Thanks for listening to this episode of the Lake Doctor podcast. You can share your thoughts or submit a question by leaving a comment or sending an email to lakes at graceedu.
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Speaker 1:We'll see you next time. The Doctor is In.