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Max Village PUD conservancy district petition withdrawn

September 24, 2010

The petition to establish a sewer conservancy district as part of the Maxinkuckee Village PUD (Planned Unit Development) project proposed for development on the southeast side of Lake Maxinkuckee was withdrawn August 10.
The move concluded at least this round of an endeavor announced in 2009 which drew more than 60 people each day to a two-day hearing conducted at the train station-depot in Culver last February. That hearing was an official activitiy of Indiana's Department of Natural Resources Commission, which was charged with preparing a report for Marshall County's Circuit Court on the matter, following the initial petition's filing some months earlier. The first day of the February 3 and 4 hearing included expert testimony on the establishment of the conservancy district, while the second provided a forum for public comment and input.
Petitioning for the project was Aker Properties, LLC, represented by Plymouth attorney Fred Jones. Remonstrating was the Lake Maxinkuckee Environmental Council (represented by Syracuse attorney Stephen Snyder) and William and Jean Welch (represented by Indianapolis attorney Brian Welch). During the hearing, Gary Aker of Aker Properties, LLC, as well as proposed contractor Al Collins and several expert witnesses testified to the economic and ecological viability of the PUD project, which would be developed on Aker-owned land adjacent to the Culver Marina off State Road 117.
According to an online report of the minutes of the Natural Resources Commission's May 19, 2010 meeting, held in Indianapolis (www.in.gov/nrc/files/NRC_May_Minutes_2010.pdf), the Commission's report of the lengthy February proceedings in Culver totaled 100 pages in length. Hearing Officer Steve Lucas summarized the report for members of the Commission at the May meeting.
Lucas explained, according to the NRC meeting minutes, that the criteria for establishing a sewer conservancy district in Indiana includes that the proposed district: "appears to be necessary...holds promise of economic and engineering feasibility...the public health would be served immediately or prospectively by providing sewage disposal...proposes to cover and serve a proper area." The district would also have to be established and operated "in a manner compatible with established: conservancy districts; flood control projects; reservoirs; lakes; dams; levees; and other waste water management or water supply projects."
Regarding the necessity of establishing the district at the proposed PUD site, Lucas referred to page 90 of the report, which notes "a system is needed for the collection, treatment, and disposal of sewage and other liquid wastes. A proliferation of entities on Lake Maxinkuckee providing these services is not a necessity. Without a complete and rigorous exploration of opportunities provided by the East Shore Corporation, by the Town of Culver, and perhaps most clearly by the South-West Lake Maxinkuckee Conservancy District, the proposed Maxinkuckee Village Conservancy District has not been shown to be necessary."
As to the promise of the proposed district's economic feasibility, said Lucas, "the hearing officers found the economic viability of the Planned Unit Development, anticipated by the district, may have met the threshold requirement of feasibility."
One topic of some discussion during the February hearing in Culver was the question of potential damage to the nearby Kline wetland area -- which feeds and helps filter incoming water to the lake -- should the treatment system at the PUD site fail.
"The proposed wastewater treatment system," continue the minutes, "seemed to be technically sound, but was found not to satisfy feasibility because there was no redundancy in the event of a system failure at peak operating times. The potential for adverse consequences from a system failure were magnified by the location of the district at the mouth of Kline Ditch, the largest tributary to Lake Maxinkuckee."
The hearing officers did find, however, that, "a properly functioning cluster system for wastewater collection and treatment could prospectively serve the public health."
Lucas also told the Natural Resources Commission that hearing officers "observed not all portions of the district would appear to be served by its stated purpose. Because the area to be served was not destined for subdivision, areas would not be represented on the district board (and) the proposed district was not shown to cover and serve a proper area."
He also said the officers found "the petitioner had not provided sufficient evidence to demonstrate the proposed district could be operated in a manner compatible with the protection of the Kline Wetland and the management of Lake Maxinkuckee."
Both LMEC attorney Steve Snyder and Brian Welch, attorney for his parents, Jean Welch and William Welch, were present at the May 19 Natural Resources Commission meeting and addressed the NRC with specific concerns held by those they represented.
Among other points, Snyder emphasized there is currently only one septic user in the area -- the Culver Marina, owned by Aker -- and its septic system "is working fine," making a conservancy district there unneccesary. He also added there are three sewage treatment entities in the area who were not contacted to determine first if they could handle the proposed PUD's waste rather than creating a conservancy district.
Snyder said a failure of the proposed wastewater treatment system at the PUD site "could damage not only the Kline Wetlands but also the entirety of Lake Maxinkuckee."
Commission member Thomas Easterly raised concerns at the meeting that the report as submitted mixed "a local land-use dispute with some other things, which challenges actually the credibility of state
permitting actions. That bothers me."
Easterly added he called the Indiana Health Department and "they have no concerns that the system won't work, although it implies in here there are concerns that the system won't work."
Easterly raised concerns that the Commission "is making findings about other state rules and permitting actions in a document without evidence...I'm really concerned about that policy implication.”
Lucas responded that the Commission's report pertains to determining if the requirements for establishment of a conservancy district have been met, not questioning any other department's permits. "Having a permit," he said, "is not adequate to establish the elements for establishing a conservancy district.”
Easterly abstained from the final vote by Commission members to approve the recommendations of the NRC hearing officers.

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