LOUISVILLE, Ky. (WDRB) -- The city of New Albany and the Indiana Department of Natural Resources reached a settlement in a lawsuit over the Providence Mill Dam on Silver Creek.
The DNR filed the lawsuit over "emergency maintenance" at the dam ordered by Mayor Jeff Gahan in August 2024 following the death of 14-year-old Andre "AJ" Edwards, who drowned on Memorial Day.
Officials said Edwards got caught in a hydraulic roller in Silver Creek, which is a recirculating current "often formed near low-head dams." His death renewed calls to remove the dam, also known as the Glenwood Park Dam, over safety concerns.
Gahan ordered the work in an effort to make the dam safer by dumping tons of rock into it.
Days later, the DNR ordered the city to stop the work, petitioning a judge to force the city to cease operations because it didn't have the proper permits and was done without state or federal approval. Gahan challenged the order in court.
The Army Corps of Engineers also ordered the work to stop and the site to be restored, issuing a Cease and Desist order claiming the city broke federal law when it started the work.
Floyd Superior Court later issued a temporary injunction ordering Gahan and the city to stay away from the dam as the state sought a permanent injunction. In March of this year, the DNR asked the same court to take action against the city over the dam and stop it from filling the dam with rock, remove what had been placed, and pay DNR expenses, including attorney's fees.
At the time, DNR officials said the agency sued to have the rock removed but had been stonewalled by the city, claiming leaders repeatedly refused to participate in discovery or depositions for months. The DNR also filed for default judgement.
The fight went to court in May, the state arguing Gahan and the city had not been forthcoming with information about the emergency maintenance performed at the dam.
In October, the city took its fight over the removal of the dam to the Indiana Supreme Court, requesting the court to decide on the dispute over the dam. The Indiana Court of Appeals had already ruled against New Albany, finding the city does not own the dam.
In the petition to transfer, the city said "this court should accept transfer to address a significant departure from administrative law and an erroneous interpretation of the Flood Control Act that as a matter of first impression."
The city also claimed the DNR didn't have the authority to issue the demolition of the dam, a right that's "outside the scope of the authority granted to it by our Legislature," according to the petition.
The legal battle ended this week, Gahan's office said Thursday, with a comprehensive agreement "resolving all outstanding legal matters" and "establishing a collaborative path forward to improve safe access to Silver Creek."
Under the agreement, the city has until Jan. 1 to remove the rock, relocate it, and authorize the Ecosystems Connections Institute to remove the dam when water conditions are safe, according to a news release.
The city will also file a permit for a "rock riffle (Rock Arch Rapids-style) structure like others approved throughout the state." It will also work with the DNR "in good faith through the permitting process" on the permit application.
Rock riffle structures "significantly increase waterway safety while creating an attractive, naturalized environment suitable for swimming, wading, kayaking and fishing."
The city will also withdraw its petition for transfer under the agreement. Additionally, the DNR will withdraw its citation for the city's violation of putting the rock at the dam, and will not issue a Notice of Violation of the Indiana Flood Control Act against the city for placing the rock in the dam as long as the city removes it.
Gahan said the emergency maintenance was "successful and removed the immediate safety risk to swimmers and recreational users," and claims it acknowledges the emergency order "was issued with the intent to protect public safety."
“I knew from the start that we were doing the right thing to protect public safety by initiating our emergency maintenance at the historic Glenwood Park Dam, and this agreement proves it,” Gahan said in a statement Thursday. “Now that this matter is behind us, we can focus on our new addition to Silver Creek that will improve recreation, fishing, and the ecosystem for decades to come.”
The city said "all litigation regarding this matter will be dismissed."
To read the agreement, click here.
Yearslong battle over the dam's future
Prior to Edwards' death, the dam had already been caught up in the courts with the city, specifically Gahan, suing to stop the dam's removal.
In March 2021, as part of its ambitious southern Indiana parks project, the River Heritage Conservancy and Ecosystems Institute applied for and were granted a permit to remove the dam, calling it dangerous as ecologists raised concerns about possible safety issues when the water is low enough.
The permit was approved June 9, 2021, by the state Division of Water.
That same month, the city signaled its intent to appeal the permit over concerns that that “there had been inadequate study of the possible impacts of removing the low head dam,” Gahan wrote in a June 14, 2021, letter to residents near the creek. He said the city had a handful of unresolved questions even after the permit's approval.
The city filed a lawsuit to prevent the dam's removal in November 2023.
In a news release announcing the settlement Thursday, Gahan said the city council unanimously passed a resolution in December 2022 asking all parties to meet and have discussions before the dam's removal.
Gahan claimed the city "has tried multiple times to initiate discussions with Origin Park and River Heritage Officials to discuss these important issues, but they have declined, including repeated recent requests to do so this year."
“We have been trying for years to improve our natural waterways, and with this agreement, I can happily report that we have achieved that,” Gahan said in the release. “I want to thank our City Council members for their continued support for our natural resources and assets.”
Scrutiny over cost of emergency work, councilmembers being kept in the dark
Gahan has faced scrutiny over the work by New Albany councilmembers, who claimed they were being kept in the dark over how much the work cost the city. He took to social media shortly after ordering the maintenance defending the work.
In a lengthy social media post, Gahan said, in part, "We declared a state of emergency and mobilized crews to eliminate the dangerous hydraulic roller effect. We accomplished this through restoring the dam to its original condition."
Since August 2024, WDRB filed multiple requests repeatedly asking the mayor’s office for cost information and documentation related to the project to find out how much the city spent on the maintenance and lawyer's fees, but never heard back. When a news crew visited Gahan's office Aug. 18, 2024, they were referred to Gahan's social media post defending the emergency maintenance. During a second visit on Sept. 18, 2024, the mayor was out and a city attorney declined to provide details about restoration plans for the dam.
In June — almost a year after contractors dumped hundreds of tons of rock at the dam — financial records obtained through the court system revealed the total cost of the emergency maintenance exceeded $124,000.
Financial records also showed:
The contractor responsible for the work billed the city $78,200. That invoice was sent to New Albany Flood Control at 142 East Main Street, Suite 310, which is also the address of Mayor Gahan’s office.
IMI Aggregates sent four invoices totaling $42,354.70 for the rock itself, along with delivery and environmental fees. Those invoices were addressed to the New Albany Storm Drainage Department at 2113 Grant Line Road.
The contractor also issued two finance charge statements totaling $3,509.36 to New Albany Flood Control.
In total, the work cost taxpayers at least $124,063.70. After obtaining these financial records, WDRB returned to the mayor's office in an attempt to get answers in person, but he was not available. He did, however, share a brief statement that said "The dam has been restored to its original condition." However, water levels at the time were too high to verify that claim.
In September, when New Albany City Council was preparing to approve its annual budget, some members said they couldn't move forward without answers from Gahan, particularly about how much the city spent defending lawsuits tied to the dam.
Members, community groups and media outlets had all requested that information for more than a year as Gahan's office repeatedly refused to provide it. To date, it's still unknown how much the city has spent in legal fees.
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