The water levels in Lake Freeman are now subject to change. Here is everything you need to know about what the Madam Carroll is doing to continue to operate, how the SFLECC is taking this battle to federal court and what you can do to help.
After nearly 100 years of keeping Lake Freeman and Lake Shafer level, the US Fish and Wildlife Department intervened and mandated that the water flow leaving the Oakdale Dam be maintained to a specific cubic foot per second to protect an endangered mussel species below the dam on the river.
This mandate, later proven to have no scientific merit (see below) means that in unusually dry circumstances the NIPSCO dam will continue to let water out of Lake Freeman until it is dried up, and then out of Lake Shafer to comply.
We believe the conservation and protection of wildlife – especially those species deemed threatened or endangered, is important and warrants immediate attention.
We believe that a continued focus on ecology in balance with recreational use along ALL our connected water ways (the Big Monon, Lake Shafer, Lake Freeman and the entire Tippecanoe River) is important on a personal level for residents and an economic level for business owners and the surrounding communities.
We know the current USFW mandate and the hydrological calculations it utilizes to control the Oakdale and Norway Dam flows were erroneously compiled and only continue to stand because of the ignorance and overreach of one government official – Scott Pruitt.
We know an alternative and more effective solution exists. The combined amount of financial resources wasted in property damage and legal fees could have already funded studies, proposals, and the implementation of this solution. To reach this solution, the following must take place:
- The USFW Department must recognize that the hydrological calculation currently in use is not effective and accept this has been proven so with additional studies by experts in this field. Further, they must recognize that the existing mandate does not accurately consider the following:
- A scaled calculation to account for seasonality and actual water evaporation as lake levels are depleted and surface area is reduced.
- The seasonal dormancy of the endangered and threatened species and their actual hydrological needs during this time.
- The existence of the endangered and threatened species in the actual bodies of water they are depleting.
- Any reporting method what-so-ever to analyze the actual success or failure of the program on the species.
- A consortium must be established to share dialogue at the local level to include officers with USFW, officers with the DNR, experts on the specific species in question, representatives from NIPSCO, representatives from SFLECC, local and state representatives, business owners, and representatives of residents residing on the water ways. This consortium will review proposed alternatives to protect the species in question and navigate the financial path to accomplish this.
In 2012 five species of endangered mussels were identified by Scott Pruitt of the US Fish and Wildlife Service in the Tippecanoe River, below the Oakdale Dam. The Oakdale Dam is owned and operated by NIPSCO (Northern Indiana Public Service Company) and is licensed by FERC (Federal Energy Regulatory Commission). Under the FERC license, NIPSCO is required to maintain the Lake Freeman water levels with a variance of 3 inches.
Citing the Endangered Species Act, the US Fish and Wildlife Service has mandated NIPSCO violate and then modify their FERC license to continually release a minimum of 570 cubic feet per second from the Oakdale Dam in an effort to maintain the water flow of the Tippecanoe River. Now, for the first time in 100 years, when there is not enough rain in the watershed area feeding the lake, the water level drops.
They will. Mandating that a run-of-the-river dam release more water from a lake than what is coming in is obviously not sustainable. When Lake Freeman can no longer meet the required 570 cubic feet per second mandate, and the lake is reduced to a river bed, the US Fish and Wildlife will again make NIPSCO violate their FERC license at the Norway Dam and drain Lake Schafer.
On November 3rd of 2020 NIPSCO confirmed this in a Press Release you can read here.
Yes. In 2014 SFLECC (Shafer & Freeman Lakes Environmental Conservation Corporation) formed a “Keep the Lakes Level” Task Force to fight the mandates put in place by the US Fish and Wildlife Service. So far, SFLECC has spent over half a million dollars fighting for the rights of businesses and individuals on both lakes. Currently SFLECC is in litigation with FERC, opposing its license modification which sides with the Fish and Wildlife Service mandate.
On October 5th, 2020, the United States Court of Appeals for the DC Circuit heard oral arguments from SFLECC and FERC in Washington DC. As of December 1st, 2020 no opinion has been released by the judges. The audio from this hearing can be reviewed online here.
Here is what you need to know about the science used by the Fish and Wildlife Service to come up with the 570 cubic foot per second release rate from Oakdale Dam and why this number is unsustainable and incorrectly calculated:
- Both the Oakdale Dam and the Norway Dam were built nearly 100 years ago and designed as “run-of-river” dams. This means that the amount of water they release is directly correlated to the amount of water that comes into the lakes. Ask yourself “If the dams were never built, where would more water come from?” No where. This is nature. Sometimes it does not rain. If the dams did not exist, the Fish and Wildlife Department would have no additional source to tap from. Using their logic, would this department try and commander the water towers from the town and drain the municipal water sources to maintain their flow rate? It is unnatural, unsustainable, and a stopgap at best to lower the lakes for a mussel species down the river.
- The formula used by the Fish and Wildlife service to determine the discharge rate of the dam was developed by John Galster of Montclair University. Galster himself has stated that in relation to our lake and periods of low flow (no rain) this formula is not applicable.
- Since 2014, four different and independent hydrologists have produced studies on the flow rate being used by the Fish and Wildlife Service. One study by the Lieutenant Governor, one study commissioned by FERC and two studies commissioned by SFLECC. All four studies came to the same conclusion:
- The FWS mandate has no scientific merit and did little to protect the endangered mussel species. FERC stated that the FWS’ mandate to operate Oakdale Dam was not representative of “run-ofthe- river” conditions and “drawdowns would result in frequent and substantial adverse effects on other environmental resources associate with Lake Freeman.” (EA Executive Summary vi, paragraph 3).
A good question to ask yourself would be “Why would FERC side with the Fish and Wildlife mandate after THEIR OWN STUDY concluded that this process has no merit?” Unfortunately, the commissioners at FERC opted to side with Fish and Wildlife because their legal representatives advised them that under the Endangered Species Act they could be held personally liable for any resulting destruction of the mussels.
Can the Madam Carroll Still Operate?
From September 10th through the end of March, the lake became too shallow and passage down Freeman rendered too dangerous to our vessel and our guests and we were no longer able to cruise the lake. Should damage occur to the boat during a cruise, we would be unable to pull the vessel from the water as access to our dry dock was eliminated once the lake went down 3 inches. We have taken and will continue to take the necessary measures to continue operating our business.
Our currently scheduled events including live music as well as dinner and brunch events with live entertainment will still take place, dockside. Operating dockside will allow guests additional outdoor access to enjoy our venue in the open air should they desire. However, we are unsure how long it will take for nature to replenish the excessive water removed from the lake and therefore cannot determine when we will again be able to cruise and operate our business as intended.
It is not financially possible for a historic vessel like the Madam Carroll to stay in business under the existing mandate. While we continue to communicate and find a solution we have asked the public for help with the excessive financial burden associated with the amount of labor, engineering, time and material needed to keep the business operational. If you can help, we have a GoFundMe Page specifically for this purpose.
What will happen if the lake keeps dropping?
Our team has already made numerous capital investments to move power sources, waste treatment lines and water lines. We have engineered and built adjustable gangways and platforms to continue to load guests. We did, however, lose our ability to offer ADA access onto the boat. Indiana’s largest boat has been moved backwards 50’ from here cradle into deeper water. As the lake drained, our captains were able to continue cruising by staying inside the channel of the lake where the water remained deep. At her deepest point, the Madam drafts 6’ of water below her engine tubs and props. After dropping over 4’ we have been forced to reside at the dock for upcoming events. At this point the lake has become too shallow and passage down Freeman has become dangerous to our vessel and our guests. Should damage occur to the boat during a cruise, we would be unable to pull the vessel from the water as access to our dry dock was eliminated once the lake went down 3 inches.
Under the current mandate and even in the deepest part of the river channel, the Madam Carroll will narrowly escape catastrophic damage with only 12 inches of water under her propulsion system.
How You Can Take Action:
This lake, our residents, the local businesses, and the Madam Carroll are in imminent danger. We do not have the luxury of time to wait on litigation to play out at the federal level. You MUST contact your local government representatives. The more noise we make, the more attention this catastrophe will get.
- Reference FERC case number P-12514.
- Let them know the Endangered Species Act in which US Fish & Wildlife is enforcing is resulting in…in your own words describe how it is affecting your Lake Freeman experience.
- Explain your damages if you have any to your property and property value concern.
Lake Level Timeline of Events
Timeline of Events Related to Oakdale/Norway Dam Licensing Controversy August 2012 – August 2020
August 2012: A summer drought results in a phone call to the U.S Fish and Wildlife Service (FWS) in Bloomington reporting that downstream mussel beds on the Tippecanoe River were exposed to air and mussels were dieing.
August 2012: FWS, citing the Endangered Species Act, mandates NIPSCO release a minimum of 200cfs of water out of the dam to “preserve the endangered species of mussels” identified
downstream, causing NIPSCO to violate its Federal Energy Regulatory Commission (FERC) issued license of required lake levels.
WINTER 2013-2014: A dry autumn resulted in a “low flow event” and NIPSCO complying with FWS Technical Assistance Letter (TAL) and lowering water levels a foot below the ice cover.
August 1 – 11, 2014 – Another “low flow event” causes a second drop and lowers Lake Freeman by 23 inches for a two-week period; essentially eliminating access to Lake Freeman by property
owners and businesses dependent on lake activity.
August 9, 2014: SFLECC Annual meeting; shore front license holders voice concerns and request SFLECC do whatever it takes to maintain the lakes’ levels.
August 12, 2014: Meeting at U.S. Senator Dan Coats office with representatives of NIPSCO, FWS, FERC, IDNR with Congressman Todd Rokita present.
August 14, 2013: US Fish and Wildlife Issues Technical Assistance Letter (TAL) that increases the release requirement to a minimum of 500 cfs (later increased to 570 cfs) by NIPSCO.
August 21, 2014: SFLECC forms an AD Hoc “Keep the Lakes Level” Task Force, consisting of three SFLECC board members and three community partners, and is tasks it with collecting data
and working on the lake problem.
August 21, 2014: Nighttime rains cause Lake Freeman to begin rising from 608 ft level
August 23, 2014: Lake returns to “normal 610 ft” levels
September 12, 2014: U.S. Rep. Todd Rokita calls for a town meeting in Monticello to discuss lake level problems. Representatives of U.S. Senators Dan Coats and Joe Donnelly are present.
September 22, 2014: SFLECC serves FERC with Request for Rehearing on Temporary FWS TAL.
October 2, 2014: SFLECC meets with elected officials from White and Carroll counties.
October 3, 2014: Chamber of Commerce sends surveys to local businesses affected by the lowered lake levels.
October 14, 2014: SFLECC Board votes to set up special fund for legal costs. Approves $30,000 from reserves for legal expenses. As of this date we have spent over $400,000
October 31, 2014: “Keep the Lakes Level” Ad Hoc Task Force agrees to hire the Washington D.C. law firm of Smith, Currie, and Hancock.
November 3, 2014: The Monticello City Council issues a resolution in support of SFLECC’s efforts in the preservation of Lake Freeman and Shafer water levels donates $2,500
November 17, 2014: The County Commissioners and Council of White County authorize the development of a $2,500 Tourism Impact Study of White County. Carroll County; White County commissioners; City of Monticello; Jefferson Twp; White and Carrol county Commerce Development organizations donate total of $13,000 to Save the Lakes Fund.
December 5, 2014: SFLECC begins fund raising from individuals for defense of the lakes.
May 15, 2015: SFLECC files its formal opposition with FERC to NIPSCO’s license modification resulting from FWS mandate.
October 9, 2015: FERC issues draft Environmental Assessment (DEA) largely concurring with SFLECC’s position that the TAL issued by the FWS had no scientific merit and did little to protect the endangered mussel species. FERC stated that the FWS’ mandate to operate Oakdale Dam was not representative of “run-ofthe- river” conditions and “drawdowns would result in frequent and substantial adverse effects on other environmental resources associate with Lake Freeman.” (EA Executive Summary vi, paragraph 3). FERC’s and SFLECC’s position is that NIPSCO should stop generating power in low water periods and continue the concept of keeping the lake levels constant.
December 15, 2015: SFLECC raises shorefront license fees to continue its office operations and fund legal fees incurred in the three-year battle with FWS.
May 10, 2016: FERC schedules a public hearing in Monticello for comment on the draft Environmental Assessment. The hearing results in an overflow audience and lasts over three hours.
August 16, 2016: FERC publishes its final report that largely resembles the SFLECC’s position against the U.S. Fish and Wildlife Service.
November 10, 2016: FERC sends letter to FWS requesting concurrence with its findings.
December 9, 2106: FWS refuses to concur with FERC’s findings.
February 17, 2017: At the suggestion of State Senator Brandt Hershman, the SFLECC sends letter to Vice President Mike Pence seeking his assistance in expediting the final resolution. No
February 27, 2017: FWS and FERC enter final “formal consultation”, assessing alternatives for dam operations as proposed by FERC in the Final Environmental Assessment.
July 5, 2017: FWS presents its “Biological Opinion” findings, holding to its 2014 position but adds that the FERC Staff Alternative for operational changes in dam operations “are not likely to
jeopardize the continued existence” of endangered mussel species and is “not likely to destroy or adversely modify designated critical Habitat”. The matter is referred to the FERC commissioners and FWS representatives for deliberation and consultation.
August 10, 2017: Due to pressure from SFLECC, USCGS agrees to install and use river flow speed sensing equipment at Buffalo on Tippecanoe River north of Lake Shafer.
September 30, 2017: SFLECC Files Observations and Comments on FWS Biological Opinion through attorneys Smith, Currey
October 3, 2017: SFLECC attorneys submit a 20-page letter to FERC seeking “interested party” designation for the SFLECC to submit input in the consultation.
June 18, 2018: FERC Commissioners have still not voted on or announced the fate of the “Temporary NIPSCO” license. TAL provisions still in effect. Possibility of lake lowerings still a possibility due to Linear Scaling concept.
July 13, 2018: Despite recommendations by the FERC Staff (Called The FERC Staff Alternative) FERC Commissioners vote to make the temporary license for the Oakdale/Norway dam operations during low flow periods that was issued to NIPSCO in 2014, permanent.
July 20, 2018: Low river flow triggers activation of abnormal low flow provisions of NIPSCO license at Oakdale.
July 21, 2018: SFLECC files a request for rehearing of the issue with FERC sighting several errors of commission and omission by FERC Commissioners in their decision to make the temporary license for dam operation permanent.
August 20, 2018: FERC Acknowledges our filing but does not make a decision
January 17, 2019: FERC denies our request for rehearing.
January 29, 2019: Task Force votes to proceed with filing in DC Federal Court, pending Board approval, and stakeholder financial support.
March 15, 2019: Our DC attorney files Petition for Review with the Court of Appeals for the DC Circuit challenging FERC’s decision to permanently changing NIPSCO’s License .
April 16, 2019: NIPSCO files Motion to Intervene
May 2, 2019: FWS files Motion to Intervene
September 3, 2019: FWS files a Motion to submit a separate Administrative Record, further delaying the Court of Appeals timeline.
September 23, 2019: Low river flow triggers activation of Abnormal Low Flow provisions of NIPSCO’ license.
November 15, 2019: Court issues Briefing Schedule , showing Final Briefs due by April 13, 2020
December 23, 2019: DC Court suspends the briefing schedule pending further order from the Court. Likely because of FWS complicating the case with items they wanted to file.
January 25, 2020: SFLECC Brief was filed with the DC Court.
March 25, 2020: FERC files their Brief with the DC Court
May 19, 2020: SFLECC Attorney files our Reply Brief with the court.
June 22, 2020: Final Briefs filed with the Court. Now we wait for the Court to review and then schedule the Oral Arguments.
March 26, 2021: The US Court of Appeals released their opinion on the arguments presented before them by FERC and SFLECC on October 5th. Click here to download the entire opinion in PDF format.
The Court Ruled the Following:
- They lack the jurisdiction to rule on the validity of the USFW biological opinion (regardless of existing contrary expert testimony) because these objections were not raised in the FERC petition for rehearing. So, for the moment, the biological opinion of USFW and the licensing decisions based upon it are upheld.
- Because neither USFW or FERC adequately explained why their “reasonable and prudent measures” qualified as only a “minor change” (as opposed to a major system change) they acted arbitrarily, and this issue is remanded for consideration by both FERC and USFW.