Legal Alert: A New Indiana Law on Low Head Dams: Liability for Owners and Waterway Users
As we spend more time outside in nature and are also trying to cool off or maybe catch a fish or two, the water pools and waterfalls created by “smaller” dams in our streams and rivers create settings that sure look inviting. Unfortunately, the invitation is a hidden, dangerous trap for drowning in recirculating currents caused by what is known and regulated as a “low head dam.” A low head dam is manmade, has a vertical drop of 25 feet or less (usually 1- to 15-foot drop) and does not have structures or impoundments to dissipate the deceiving power of the hydraulic energy. For swimmers, boaters and waders, DNR warns that “even the strongest swimmers and rescuers wearing the best personal floatation devices have drown (sic) at low-head dams.”
As of July 1, 2020, a new law is in place which prevents people from accessing low head dams, and the waters within 50 feet of the dams, when warning signs are present. Ind. Code 14-27-7.3 is a detailed law imposing a number of responsibilities on dam owners, including installing the warning signs to help those using the waterway to locate and stay away from the low head dam.
The DNR has a state location map of intact, partial and removed (residual material) low-head dams.
By this time next year, and probably earlier, a list of the locations will also identify the owners of each dam. The dam owners on the list are responsible for: maintaining general liability insurance of not less than $1,000,000 in dam liability coverage; notifying the DNR of the coverage and any change in ownership; and complying with specific warning standards including posting warning signs of the danger. The law specifically does not limit owner liability for any damage, loss or injury that is caused by a low head dam. Also, the code makes clear “the state is not liable for any death or injury that occurs on or resulting from a low head dam that is not owned by the state.”
Most of the low head dams no longer serve a purpose. Public safety and impact to the stream ecology support dam removal policy. As dam removal is costly, the stream restoration process will be slow. In the meantime, safely stay at least 50 feet from a low-head dam to have fun in the water and to avoid getting a Class C misdemeanor.