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05-27-05 Judge rules spillway causes land to flood

By Nancy Allen

  A judge has ordered the Ohio Department of Natural Resources (ODNR) to compensate five farmers for land that was flooded due to the West Bank spillway.

  Visiting Judge Lawrence Grey's decision filed this week in Mercer County Common Pleas Court is the result of a two-day civil trial that was held Feb. 24 and 25.
  Grey's decision also clears the way for a hearing before a jury to determine the amount of damages owed to the farmers.
  "We are gratified that the judge found that the changes to the spillway had caused a great burden on our landowners and that they are entitled to compensation," the farmers' attorney, J. Anthony Logan of Columbus, said this morning. "Now we will aggressively press forward in the damage case."
  The farmers suing ODNR and Director Sam Speck 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.  The farmers all own land along either Beaver Creek or the Wabash River, which are fed from Grand Lake. Excess floodwater exits the lake via the West Bank spillway and empties into Beaver Creek, which then empties into the Wabash River.
  Logan, who first filed the case on his clients' behalf in May 2001, said other farmers who live along the waterways have been seeking information on this case and another attorney already contacted him this morning about the decision.
  In the farmers' suit, they asked to be compensated by the state for what they claim is an "illegal taking" of 500 acres of their farmland and using it to store impounded floodwater from the lake. They claim the new concrete spillway that opened in 1997 discharges a larger amount of water at a faster rate than the old one built in 1913, and that flooding of their farmland is now more severe and lasts longer with the new spillway. They also testified they lost crops due to the flooding.
  The state denies the charges and says there are many factors which cause the farmers already flood-prone land to flood than just the new spillway.
  In the court document, Grey wrote that much of his decision hinged on the expert testimony of two hydrologists, one for the state and one for the plaintiff farmers. The testimony of the farmers' hydrologist was more credible than that of the state's, Grey decided. A hydrologist specializes in the study of the movement and effects of surface and ground waters.
  Another persuasive factor, the judge wrote, was the testimony of Mark Ogden, an ODNR engineer, about why the spillway was modified. Ogden testified the new spillway was installed to protect the earthen West Bank dam from overtopping and failing due to too much water in the lake.
  Ogden said if too much water creates a danger, then the way to avoid that danger is by building a bigger spillway, which would carry away a greater volume of water. The new spillway with its 9-inch notch was designed to -- when necessary -- carry larger amounts of water out of the lake into Beaver Creek.
  Civil engineer Doyle Hartman, for ODNR, conceded there would be more water going over the new spillway at times, but testified that except for a small area near Zumberge's most eastern property, it would not raise water levels downstream. The court did not find this conclusion credible, Grey wrote.
  "The court would point out here that it finds no fault with the action of ODNR in modifying the spillway. The modification appears necessary to achieve the greatest good for the greatest number," Grey wrote. "The effect of the modification on the plaintiffs, however, is burdensome and constitutes a taking."
  The state's attorney, Joan Fishel, had not yet seen the judge's ruling as of this morning and was not able to comment, she told the newspaper.


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