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02-25-05 Area farmers: State took over land

By Nancy Allen

  An ODNR project engineer who helped redesign the current West Bank spillway testified in court Thursday that she said in a 1994 letter to her superiors the proposed spillway could worsen agricultural flooding for farmers downstream of Grand Lake.

  But engineer Michelle Hoffer, one of seven plaintiff's witnesses in the civil trial in Mercer County Common Pleas Court, also told the court the new spillway would only "slightly" add to rain overflow problems already existing along the banks of Beaver Creek and the Wabash River.
  The five farmers suing the Ohio Department of Natural Resources and its director Sam Speck for agricultural flooding along the waterways -- flooding they say is caused by the new 1997 spillway -- also testified Thursday.
  They are Leo Post, 882 Carmel Church Road; Richard Baucher, 3417 state Route 29; Jack Minch, 7135 state Route 49; Steve Zumberge, 4422 state Route 29, and Terry Linn, 7018 Ohio-Indiana State Line Road.
  Through their Columbus attorney, J. Anthony Logan, they ask for compensation from the state for what they call an "illegal taking" of their farmland and using it to store impounded floodwater. Grand Lake releases rainwater overflow via the West Bank spillway into Beaver Creek, which then empties into the Wabash River.  The farmers also want ODNR to initiate appropriation proceedings to determine a compensation amount. They also had requested a jury trial to decide the matter.
  However, visiting Judge Lawrence Gray is hearing this week's civil trial without a jury. The trial is to wrap up today with testimony from witnesses called by the state.
  Hoffer on the stand said she was not the main engineer on the project and actually did not do the calculations for the spillway. The letter of warning was only thoughts she had in "brainstorming" the issue, she said.
  Hoffer also testified the spillway design was "the best ODNR could do" with the overriding purpose being assurance that the earthen dam (West Bank) surrounding the spillway did not fail during a flood and endanger people's lives.
  Gray frequently asked witnesses for more information and explanation Thursday to help him understand aspects of hydrology and farming associated with the case, first filed in May of 2001.
  Gray asked Hoffer if lowering the lake's level by opening two tubes at the base of the spillway before rains might lessen downstream flooding. Hoffer responded it would be difficult to predict rain events and lower the lake's level accordingly.
  In response to further questioning by the judge, Hoffer explained that during heavy rain events, water flowing over the spillway from the lake only increases the water level in Beaver Creek slightly.
  "The peak in Beaver Creek occurs first due to rain overflow and when the spillway discharge is added, it only increases the peak slightly and makes for longer out of bank periods," Hoffer said.
  John Warns, the plaintiff's hydrology expert, testified the new 500-foot-long spillway results in more prolonged flooding of farmland than did the old 39-foot-long spillway built in 1913. Warns used ODNR data to model hypothetical rainfall events.
  "There's no question that there are now a multitude of situations where there will be flooding downstream with the new spillway where there weren't with similar rain events with the old spillway," Warns said.
  All five farmers testified Thursday that since the new spillway came on line, flooding is more severe and prolonged than it was with the old spillway. They also said they have suffered crop losses due to the flooding.
  Minch said he has farmed roughly 160 acres of land on both sides of the Wabash River since 1953 and never saw extensive flooding like he has in the last 21/2 years.
  "Before the spillway was put in I had no recollection of water crossing (state Route) 49. That happened in July 2003 and in January 2005," Minch said.
  Trying to punch holes in their testimony, Assistant Attorney General Joan Fishel questioned the farmers on whether their field drainage tiles worked properly. She also asked Warns why he did not factor in additional variables other than the spillway water that contributed to flooding when he constructed his hypothetical models.
  Fishel asked the farmers if they ever had standing water in their fields when Beaver Creek was not flooded out of its banks, to which most replied "yes." She also charged that the farmers had sustained flooding to their farmland for years prior to the installation of the new spillway and that they had no proof the flooding they have sustained since the new spillway was built is any worse.


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