VANDERBURGH COUNTY

DRAINAGE BOARD

MARCH 21, 2006

The Vanderburgh County Drainage Board met in session this 21^st day of March, 2006 at 4:34 p.m. in room 301 of the Civic Center Complex with Vice President Cheryl Musgrave presiding.

Commissioner Musgrave: We will move now to Drainage Board. With the President of the Drainage Board being absent, I think I still am the Vice President. Do you have an extra agenda, Surveyor Jeffers?

Commissioner Musgrave: Do we have minutes of the previous meeting, sir?

Bill Jeffers: Yes, Madelyn indicated that we have several.

Commissioner Musgrave: If you will read off the dates of those minutes.

Unidentified: March 7^th.

Commissioner Musgrave: March 7^th?

Unidentified: February 21^st.

Commissioner Musgrave: February 21^st? That’s it? Alright let’s have a motion for the approval of those minutes.

Commissioner Shetler: So moved.

Commissioner Musgrave: I will second. All those in favor? Aye.

Commissioner Shetler: Aye.

Commissioner Musgrave: We will now consider the obstruction of Harper Ditch by railroad. Is that CSX?

Bill Jeffers: That would be Norfolk Southern Railway.

Commissioner Musgrave: Norfolk Southern, please strike CSX.

Bill Jeffers: On our power point display, the obstruction consists of several hundred tons of rip rap that was placed last week over an unstable rail bed, and the water came up last week, of course, as you know, and it saturated the rail bed even further. When the water drew down, this rip rap, which basically just represents more weight and more moment, moved down into the ditch, and this is the obstruction. That’s the old toe of the ditch right there. So, everything below that is an obstruction. Yesterday, when I took these pictures, the water was just, you know, it was backed up there, it was just trickling through here. You can just see a trickle. Then it rained last night. If we could move forward on the pictures. That’s still yesterday, showing you the water backed up and the unstable railway embankment. Next picture, please. That’s some more of the obstruction. I was a little excited. I was just clicking off pictures here. Keep going. Just different angles. This is all yesterday. You can, okay, this morning I went out, that was yesterday around 4:00. This morning I went out there at 9:00, around 9:00, and this is Norfolk Southern with a gentleman sitting in the dump truck waiting for the work crew to show up at 9:00. Next picture. You can see that the rainfall just last night, what did we have, a quarter inch? Has already turned into a torrent. This is why I was so excited, because I was afraid that all this water will back up under Eastland Mall, and Shoe Carnival and all the other properties up there. Now, I’m just showing you some more unstable embankment that the railway is trying to address by simply dumping rip rap over the side of the embankment. All that does is add more weight and more movement to, this has already sluffed off here, that’s obstructing 20 percent of our ditch already, and they’re just adding more to it. These are just some different angles. This all needs to be addressed. Down here, what they’ve done in the past was just take surplus rail, that’s just rail they’ve ripped up somewhere, and they’ve driven it down in there like piling. The next picture might be a close up of that. They’re just using that for piling to try to stabilize this. This has already started to slip again, where they first did it. They’re just working this way. That shows you what...they did that several years ago. That’s already slipping. All this rock is ending up down in our drain. I don’t know if I have anymore pictures. That might be the last one. Just a close-up of those old rails driven in there for piling. You, as Commissioners, spent, I believe, you can verify it with the County Engineer, he’s out in the hallway, I believe you spent a million dollars for the Stockwell Road crossing. About half of that was due to the railroad’s insistence upon certain time lines and sizings and all that. It’s very frustrating to work with them. This picture here shows you the location in the year 2000. It’s right across from the Rudolph batch plant. So, all that erosion has occurred since the year 2000. See, you don’t see any of that problem there back then. It’s all happened since the year 2000. This right here is not a very good aerial photograph of it, but that’s an old gabion wall, this is Stockwell Road, this is the entrance to Rudolph’s batch plant, that’s the location of our problem, this is Rudolph’s batch plant, this is Harper Ditch. You just recently spent a million dollars to take this ditch, which used to go down through, wander through Wesselman’s Woods this way, through a series of undersized culverts, you spent a million dollars to cut through this way and take it straight through a new channel. That’s to lower the flood plain elevation on five miles of the east side that FEMA has said we should raise our flood plain by two to two and a half feet. So, that was money well spent, but it was approximately $500,000 more than we had to spend. So, I’m a little frustrated with Norfolk Southern today. I will say that sometime after 9:30 they showed up with a gradall and removed some of the rip rap from this area right here. They moved it back up on the rail bed, and they placed more ballast rock up here to cover up that big scar that you saw on some of the previous pictures. But, all the obstruction down at the bottom of the ditch remained at 9:30 this morning, and on the way back in from viewing it, Mr. Jimmy Ellis, Division Engineer, called me on my cell phone and said they were finished. I said, “Well, Mr. Ellis, it’s not anywhere near finished.” He sent, he called me back this afternoon around 2:00 and said he was sending a crane out on a rail car to lift the rest of that rip rap out of there, and that they would pursue a true engineering solution to this erosion problem. That’s a little bit more encouraging than what I heard since yesterday. I apologize for being a little bit frantic, or alarmed with all my e-mails that I sent to you, but if this creek backs up, it immediately will flood the entire parking lot of Eastland Mall, and also endangers a lot of retail floor space. So, I was a little excited, because I thought it was going to rain harder than it did.

Commissioner Musgrave: Do you have more photos? Or should we turn the lights back on?

Bill Jeffers: You can turn the lights back on.

Commissioner Musgrave: Thank you.

Bill Jeffers: I hate to keep you in the dark. I’ve sent several, well, I sent two registered letters, as required by state law, to their legal department, and to their Division Engineer, notifying him of the obstruction. I believe you have a copy of this, this is a notice, the official notice to remove the obstruction, I sent you that by e-mail, and then there’s some color pictures, which I will give to your Recording Secretary for her file, just to give you an idea of what we’ve shown on the screen up here. We also did some research downstairs in the Recorder’s office and found the deed, which I forwarded to you in a PDF file, and was pleased to find that this is simply a right-of-way for the construction and maintenance of the railway, they don’t appear to own it fee simple. So, all these things they’ve been telling us over the years, and restricting us from building new bridges and pipes and maintaining this properly, I began to wonder, I would like to discuss that with our attorney when he returns next week, just what rights they have to have billed us certain monies for the construction of that pipe.

Commissioner Musgrave: Are you going to ask him if we can claim it back?

Bill Jeffers: I would like to do that.

Commissioner Musgrave: Alright.

Bill Jeffers: I also forwarded to you a part of the law that indicates we may be due 50 percent of the cost of the construction work that we did for that crossing. I don’t know if we’ll be able to, that’s a matter of interpretation for the lawyer.

Commissioner Musgrave: Um–

Bill Jeffers: But, whenever a legal drain crosses a railroad right-of-way, for the purpose of enlarging the waterway opening, because it’s been declared insufficient, which it has been, then, apparently, there’s a possibility that the railway shall pay 50 percent of the cost.

Commissioner Musgrave: Have you spoken with the Building Commission staff, Mr. Steve Fuchs? He gave a presentation recently where he discussed the need for multiple such drains to be cut underneath the east side of Green River Road’s Norfolk Southern tracks. He was going to seek grants for that. So, if indeed Norfolk Southern has to pay for half of this, and I realize that research is outstanding, I would certainly like to throw those drains into the mix.

Bill Jeffers: Also, in this deed, which wouldn’t cover the east side of Green River Road, although there may be a very similar deed for the property on the east side, this covers the property from anything within section 23, which is from Green River Road to Vogel, excuse me, to Vann Avenue. It includes all of Wesselman’s Woods. The right-of-way that was granted in 1871 declares that Southwestern Railway Company, which is, which Norfolk Southern is the heir and assign to;

“Shall construct, maintain culverts, sluices, outlets sufficient to carry off the water that may fall or stand upon said premises and shall not obstruct the natural flow of water thereon.”

It specifically says that that is within the 100 feet and width, including the old bed of the Wabash and Eerie Canal, which we currently use. So, just making the presentation that there is information here that I would like to go over with your legal department to see where we stand, because there, as you also know, I’m asking for RFP’s from consulting engineers to study this entire stretch of ditch from Burkhardt Road down to Stockwell Road, and I did end up on a good note with Mr. Jimmy, excuse me a moment, Ellis, I think it is, the engineer from Norfolk Southern, Division Engineer, on a good note that I agreed we would share all information that we get from our consulting engineer with regard to a proper way to stabilize the ditch banks. He agreed to take that into consideration in his future endeavors to shore up the railway. Do you have any questions on that? Or any direction for me?

Commissioner Musgrave: I would appreciate your visit with the County Attorney and others to pursue this matter.

Commissioner Shetler: I’m kind of looking at there’s two issues here, and I think the first issue is dealing with the erosion that’s currently at hand. I’m wondering if maybe the, our legal department ought to assist in helping write a pretty forceful letter what the research that you’ve done, that’s been exceptional, as usual, I think along with that in hand and a letter from a threatening attorney here could probably get our way around a little bit, because as I had indicated to you earlier today, Bill, I think, on an e-mail, that fighting the railroads is worse than city hall, often. So, it appears that you’ve already made a dent into that, or a crack into that seam anyway, and that maybe we could get this first issue put to bed. I applaud you for, on the second issue, I applaud you for your efforts, and, hopefully, we have found an area there where we might be able to recoup some monies that are necessary to get that thing done, and done correctly in the future. So, I applaud you on your efforts that you’ve done on the second phase of that. Thank you.

Bill Jeffers: I appreciate your comments that fighting the railway is harder than fighting city hall. I’ve found that to be true, but the railway, Goliath has to remember that I am a little part of city hall. So, what does Avis, or somebody says, “We try harder.” I will fight harder.

Commissioner Musgrave: Alright, thank you very much for that.

Bill Jeffers: Okay.

Bill Jeffers: The only other item of business that I have for you, Gibson County Drainage Board has sent a request that we transfer funds that we have held for years from assessment we’ve collected in Vanderburgh County for property that Vanderburgh County taxpayers own that drains into Gibson County through their legal drain known as Upper Pigeon Creek. I don’t want to go into any great detail, but I’ve withheld that money for many years, because the previous County Surveyor made very disparaging remarks about out drainage program and our Drainage Board, and, I guess, I just forgot to forward this money to him, because I didn’t agree with some of his policies. You can read about it in the record. We now have $9,064.52, and the new County Surveyor, Michael W. Stevenson, is a very progressive young man who has turned the program around in Gibson County, and has a good use to put that to. He has included a claim from the Gibson County Drainage Board in that amount, and the County Surveyor recommends that we transfer those funds, which we have held and earned interest on to Mr. Stevenson and his board.

Commissioner Musgrave: And they’re entitled to this money?

Bill Jeffers: They are fully entitled to this money.

Commissioner Musgrave: Including interest?

Bill Jeffers: At this point, it’s my contention they’re entitled to $9,064.52.

Commissioner Musgrave: Alright.

Bill Jeffers: We may have a little handling fee left in the account, but as it accumulates, we’ll transfer that as well.

Commissioner Musgrave: Alright. Is there a motion?

Commissioner Shetler: So moved.

Commissioner Musgrave: I’ll second. All those in favor? Aye.

Commissioner Shetler: Aye.

Commissioner Musgrave: Does that conclude the business?

Bill Jeffers: That concludes my business.

Commissioner Musgrave: Thank you, sir.

Bill Jeffers: Thank you.

Commissioner Musgrave: Is there a motion to adjourn?

Commissioner Shetler: So moved.

Commissioner Musgrave: I’ll second. All those in favor? Aye.

Commissioner Shetler: Aye.

Commissioner Musgrave: Thank you for coming.

(The meeting was adjourned at 4:50 p.m.)

Those in Attendance:

Cheryl Musgrave                      Tom Shetler, Jr.                        Bill Jeffers

Kathryn Schymik                      Madelyn Grayson                     Others Unidentified

Members of Media

VANDERBURGH COUNTY

DRAINAGE BOARD

Cheryl A.W. Musgrave, Vice President

Tom Shetler, Jr., Member

Recorded and transcribed by Madelyn Grayson.