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Posted on Sun. Feb. 10, 2013 - 12:01 am EDT

Statehouse gets county septic fight

Bill on permits would narrow exemptions for Amish

INDIANAPOLIS — An Allen County fight over waste disposal has hit the Indiana Statehouse, pitting lawmakers concerned about health and safety against those defending the religious beliefs of the Amish.

“Their way of life is to take care of themselves without government interference,” said Sen. Dennis Kruse, R-Auburn. “Not one Amish person wants a failing septic system. They live off the land so they take care of it.”

The battle began about 10 years ago when the Fort Wayne-Allen County Department of Health started seeing more Amish installing their own septic systems and receiving complaints from neighbors about sewage and waste on their property.

Mindy Waldron, health department administrator, said the department tried to work through administrative avenues and many of the Amish complied.

But a small group of about 75 homeowners have fought every step of the way, including not getting permits to build septic systems and refusing inspections.

Allen County eventually took several cases to court and has won every time.

“I believe it is an important issue to my constituents in both Allen and Whitley Counties, both as a health issue and a monetary one in that their tax dollars are being spent in litigation trying to provide a healthy environment for their families and mine,” said Rep. Kathy Heuer, R-Columbia City.

Heuer is sponsoring a Senate bill on the issue that was written by Sen. Tom Wyss, R-Fort Wayne, and already passed that chamber.

At issue is the “log-cabin rule,” which dates back to the turn of the century. It generally says people can build their own house on their land in an unincorporated area without permits. If they want to sell the house in the future, it has to be disclosed and the home brought up to code.

The Amish have long used this exemption in building codes for constructing their own houses. But they have also interpreted it in recent years to also apply to health and sanitation rules.

Allen County appears to be the epicenter of the fight, though isolated cases have been found in a few other counties.

The Indiana Court of Appeals originally weighed in through a Washington County case in 2007, backing a county’s right to apply health code regulations on sewage disposal systems.

Allen County also won a 2011 case, and on Jan. 31 the Indiana Court of Appeals ruled again in its favor of another one. A Jay County case from 2012 also backed the county interpretation.

“We are trying to codify what the courts have said over and over because it is draining our legal resources to keep fighting the same fight,” Waldron said. “I just don’t think that proper sewage control is something that can be deemed optional. The effects are felt throughout the community in terms of disease and water pollution.”

Heuer said Allen County has spent $25,000 alone on two cases.

In the latest one, Henry and Barb Wagler have 30 days to seek an appeal to the Indiana Supreme Court, which has denied to hear a similar case in the past. Their attorney, Dale Arnett, said he will appeal. He has been involved in all the cases and isn’t ready to give up his interpretation of the law.

“The Amish here are beginning to feel really closed in by the government,” he said. “With Allen County, it’s their rules or nothing.”

Waldron – now with backing of the county commissioners and the Fort Wayne mayor – came to the legislature to try to clarify exactly what the courts have ruled multiple times, that everyone has to get permits for sewage systems, be open to inspection and make repairs.

But some lawmakers see it as a narrowing of the log-cabin rule.

“The Amish have used this as a way of life for decades,” said Rep. David Wolkins, R-Winona Lake. “Some say the black hats are taking advantage, but we need to respect their religious beliefs.”

Wolkins said if the Indiana Supreme Court weighs in and sides with the county interpretation he will stand back. Until then, he is going to fight it in the House. Senate Bill 159 might even be assigned to the environmental committee he chairs.

Arnett said the issue is more about seeking permitting fees than stopping pollution.

“If one of my clients is polluting I’ll tell them to clean it up,” he said. “I want to protect our water supply but also stand up for private property rights.”

Kruse, who represents some Amish citizens, noted that he visited one Amish homestead where it was alleged pollution was going onto a neighbors’ property, and he was not convinced.

“I didn’t see anything that harmful,” he said, noting that a major rainfall in Fort Wayne can send massive sewage into the rivers.

Waldron acknowledged pushing permitting cases as a first step in which county inspectors can check the system before it is covered up. But she said there are also cases that go beyond permitting concerns to a failure with pollution going into the nearest water body and even some homes with no system at all treating sewage.

“This is crazy,” Wyss said. “We can prove pollution. We have pictures and we know what they’re doing and it’s wrong.

“My two responsibilities are public health and public safety, and I’m going to stand by those.”

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