Retention ponds a 'growing threat'? Mishawaka deaths raise questions about barriers, safety

Jan. 8--When a developer builds a new office park or shopping plaza, local governments require them to provide drainage for stormwater that runs off roofs and parking lots.

Underground vaults are one option for collecting water, though many developers opt for the cost savings and aesthetics of man-made retention ponds.

But while local governments spell out rules for stormwater, including how deep ponds need to be, they demand few safety measures to help keep people and vehicles out of the man-made basins.

The lack of barriers around many retention ponds has raised questions after an SUV plunged into one of the basins in Mishawaka last week, killing two children and leaving an infant and their mother in critical condition. That was just the latest crash into local ponds, leading some people to call for fences, guardrails or other barriers, while others have cast doubt on whether such measures would guarantee better safety.

In last week's fatal crash, an SUV driven by 31-year-old Brooke Kleven, of Granger, went into a retention basin at University Drive and University Drive Court, amid a cluster of retail developments on Mishawaka's north side.

James Kleven, 4, and Natalie Kleven, 2, both died. Brooke Kleven and 3-month-old Hendrik Kleven were hospitalized in critical condition. Police said Brooke Kleven "failed to navigate a curve" while roads were icy.

It was at least the third time a car slid into that pond, located about 25 feet from the road, in recent years. In December 2005, a driver was able to get out of his vehicle safely after he slid off the road and into the retention pond, Tribune archives show. Also, a Tribune reader recently shared photos of a car that splashed into the same pond on a rainy night in December 2015.

Tribune archives show at least a half-dozen other incidents in which vehicles have gone into local retention ponds in recent years.

A petition posted on Change.org after last week's deaths urged officials to place guardrails along the street to block traffic from the University Drive retention pond. The petition, started by local activist Wayne Hubbard, said the crash "could've been avoided," and more than 3,700 people had signed it as of Tuesday morning.

Mishawaka officials have said the city cannot force private property owners to put up barriers around the ponds. In other local jurisdictions, safety measures can be required but are by no means demanded in all cases.

Mishawaka and St. Joseph County both require a gentler slope for basins dug next to streets and roads.

In wet-bottom detention basins, which have water in them even when not collecting stormwater runoff, the county requires a 4- to 6-foot wide safety ledge no more than 3 feet below the top of the permanent water level, said County Engineer Jessica Clark.

South Bend requires a pair of 6-foot-wide safety ledges in each pond -- one ledge a foot above the normal water level and another 1.5 feet below the water level, according to the city engineer, Kara Boyles.

South Bend doesn't require fencing or traffic barriers for retention basins, though the city's design and construction standards say they are "recommended around the perimeter."

Boyles said retention ponds are common in South Bend's industrial areas but less so in the city's commercial corridors.

"If feasible, we always try to encourage developers to place them in areas that are less visible and eliminate potential hazards," she said.

The county can require barriers "where deemed necessary," Clark said.

In reality, though, many ponds have no obstacles preventing access by people or vehicles, other than the occasional "no trespassing" sign.

Some experts, such as former Mishawaka city engineer Gary West, have downplayed the need for barriers. Hitting a guardrail could be dangerous, too, West argued, because a vehicle could "bounce back into traffic" and create further hazards.

And there are plenty of natural hazards that cannot be totally obstructed.

"We have a river flowing through the community," West said. "Would you want to put a fence along that, or a guardrail?"

That sentiment was shared by Mishawaka's assistant fire chief, David Ray, who recently said he's unsure if installing barriers would be worthwhile, pointing out that, for example, trees and are also hazards to drivers.

"We're concerned about every standing body of water in the county," he said.

Still, this is not the first time deaths in man-made stormwater basins in Indiana have led to calls for more safety features.

In 2009, former state Sen. Richard Bray authored a bill that would have allowed local governments to finance loans for private property owners to add guardrails around retention ponds. The proposal came a year after a mother and her three children died after their minivan went into a stormwater basin in Carmel. The Senate passed the bill 49-0, but it stalled in a state House committee.

According to the Indiana Department of Natural Resources, 25 people drowned in retention ponds in the state between 2007 and 2017. Five of those people were in vehicles prior to their deaths, according to the DNR figures.

For now, ponds are likely to remain the preferred stormwater-management choice for developers.

Some owners, such as large retail stores, choose to seclude their retention ponds at the rear of properties or with barriers and vegetation. For example, the Mishawaka Walmart has three ponds near Indian Ridge Boulevard, but they are blocked by both guardrails and fences.

Office parks and apartment complexes, on the other hand, turn retention ponds into prominent features.

"There's a fine line between an amenity and an eyesore," said Corey Cressy, a commercial real estate broker who helped develop the Edison Lakes office park. "At Walmart you don't see much landscaping. Others might feel having high-end landscaping and attractive ponds will be good for attracting tenants."

Gabriel Hawkins, an Indianapolis lawyer who has represented two families in lawsuits over deaths in retention ponds, said he expects similar incidents to increase with suburban development.

"I think retention ponds represent a growing threat in Indiana," he said. "As urban sprawl continues to grow, runoff is more of a problem and you have to have retention ponds to deal with that."

In one case, Hawkins represents the family of a 73-year-old woman who died after her vehicle went into a retention pond at a Carmel shopping center. In another, he helped represent the family of a man who drowned while saving his daughter from a basin at an Indianapolis apartment complex. In that case, the daughter was in a parked car that went into the pond after its shifter either slipped or was accidentally put in gear. In both cases, lawyers said, there were no barriers around the ponds.

"The remedies are very simple. It can just be a matter of piling dirt in a certain manner, making a berm. Fences are not expensive, lighting is not expensive, and so on," Hawkins said. "The cost of these measures just pales in comparison to the harm that is caused by retention ponds."

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