Cause #: 00-218W
Name: Pierson v. DNR and American Aggregates, d/b/a Martin Marietta
Administrative Law Judge: Lucas
Attorneys: Kuntz; Mathis; Evans
Date: July 27, 2001
The preponderance of the evidence and the law would not support a finding by the Director of the Department of Natural Resources that a groundwater emergency should be declared to support relief by Randy Pierson and Donna Pierson with respect to their nonsignificant ground water well in the Urbandale Subdivision, Howard County. The previous denial of relief by the Department of Natural Resources is affirmed.
Findings of Fact and Conclusions of Law1. The proceeding was initiated on November 30, 2000 when Randy Pierson and Donna Pierson (the "Piersons"), by counsel, filed correspondence with the Natural Resources Commission (the "Commission") seeking administrative review of a determination by the Department of Natural Resources (the "Department") denying relief under IC 14-25-4 (sometimes referred to as the "Groundwater Emergency Act").
2. The proceeding is governed by IC 4-21.5 (sometimes referred to as the "Administrative Orders and Procedures Act" or "AOPA") and 312 IAC 3-1, rules adopted by the Commission to assist in its implementation of AOPA.
3. Historically, Indiana law subjected the pumping of percolating groundwater to few restrictions. Save Clay-Harris Water v. DNR and City of Mishawaka, 7 Caddnar 156 (1997). Indiana followed the English Rule that "gives the owner of the soil all that lies beneath his surface," including groundwater percolating through undefined channels. New Albany & Salem R. R. v. Peterson, 14 Ind. 112, 114 (1860).
4. The Indiana Supreme Court recognized a limited exception to the English Rule where the purpose for pumping was "purely malicious." Gagnon v. French Lick Hotels, 163 Ind. 687, 72 N.E.2d 849 (1904).
5. The vitality of the traditional common law was reaffirmed in Irving Materials v. Carmody, Ind. App., 436 N.E.2d 1163 (1982) where domestic well loss suffered by neighboring property owners was found to be "damnum absque injuria. They simply have not suffered legal wrong." Also, as stated in Wiggins v. Brazil Coal and Clay Corp., 452 N.E.2d 963, 964 (Ind. 1983), "Groundwater is part of the land in which it is present and belongs to the owner of that land." At common law where a person uses or disposes of percolating groundwater for a beneficial purpose, damage that results to another is not actionable unless the damage is deliberate or gratuitous.
6. The Indiana General Assembly is not precluded from establishing exceptions to the common law of groundwater. It may identify circumstances where a person may obtain relief for diminution or other damages to the person's groundwater resources. SAVE CLAY-HARRIS WATER cited previously. One statutory exception is set forth in the Indiana version of the Surface Mining Control and Reclamation Act. In Natural Resources Comm'n v. Amax Coal Co., 638 N.E.2d 418 (Ind. 1994), the Indiana Supreme Court found Indiana SMCRA was intended as such an exception.
7. Another exception to the common law is the Groundwater Emergency Act. In general terms, relief is available to the owner of a domestic well if a failure is caused by the operation of significant ground water withdrawal facility.[FOOTNOTE A.]
[VOLUME 9, PAGE 20] In order to qualify for relief, each element of the Groundwater Emergency Act must be met.[FOOTNOTE B]8. As provided in IC 14-25-4-8 and IC 14-25-4-9, a domestic well owner may file a complaint with the Department alleging the well has failed to furnish its normal supply of water. The Department performs an investigation of the well. As the first step toward authorizing both temporary and permanent relief from a significant ground water withdrawal facility in favor of a domestic well owner, the Director of the Department "shall, by temporary order, declare a ground water emergency" where each of the following is determined:
(A) There was a substantial lowering of the level of ground water in the area resulting in a failure of the well to furnish its normal supply of water.
(B) The well and its equipment were functioning properly at the time of the failure.
(C) The well failure was caused by the lowering of the ground water level in the area.
(D) The lowering of the ground water level is such that the ground water level exceeds the normal seasonal water level fluctuations and substantially impairs continued use of the ground water resource in the area.
(E) The lowering of the ground water level was caused by at least one significant ground water withdrawal facility.
9. A statute in derogation of existing common law must be strictly construed. Victory Committee v. Genesis Convention Center of City of Gary, 597 N.E.2d 361 (Ind. App. 1992). The presumption is the legislature is aware of the common law, and a statute will not be construed as changing the common law farther than the import of its words. Foster v. Evergreen Healthcare, Inc., 716 N.E.2d 19 (Ind. App. 1999).
10. The Groundwater Emergency Act is in derogation of the common law of groundwater quantity. The presumption is the Indiana General Assembly was aware of the common law when it enacted the Groundwater Emergency Act, and the statute must not be construed to change the import of its words. The Groundwater Emergency Act must be strictly construed.
11. In the instant action, the Director of Department determined an appropriate factual basis did not exist upon which it could issue a groundwater emergency with respect to a domestic well owned by the Piersons. The Department made this determination of status and notified the Piersons as anticipated by IC 4-21.5-3-5(a)(5).
12. The Piersons took administrative review of the determination in a timely fashion. The Commission has jurisdiction over the parties and over the subject matter of the dispute.
13. The Piersons have the burden of going forward and the burden of persuasion (sometimes collectively referred to as the "burden of proof") to demonstrate the finding by the Director of the Department was in error. IC 4-21.5-3-14. As previously applied by the Commission to the Groundwater Emergency Act, see Save Clay-Harris Water cited previously, and Garvin, et al. v. DNR, 5 Caddnar 125 (1990).
14. American Aggregates, Inc., doing business as Martin Marietta ("Marietta"), has since at least the late 1980s engaged in dewatering activities for a gravel quarry in Howard County. In conducting the dewatering activities, Marietta operates a significant ground water withdrawal facility.
15. The Urbandale Subdivision is located across a road from the Marietta quarry, a distance of between 1/4 and 1/2 mile. The Piersons are among the residents of the Urbandale Subdivision.
16. In the late summer of 1999, approximately 30 of 100 residences in the Urbandale Subdivision
[VOLUME 9, PAGE 21] experienced domestic well problems.17. Late summer 1999 was an unusually dry period, and many owners of domestic wells in Howard County and elsewhere in Indiana experienced low water levels.
18. A sand-and-gravel aquifer system has relatively uniform water availability. Water in a limestone aquifer comes from cracks and fisures within the limestone. Water availability and well productivity in a limestone aquifer vary considerably depending on location.
19. The aquifer beneath the Urbandale Subdivision is located in limestone bedrock. Productivity among wells in the Urbandale Subdivision varies more than if the wells were located in a sand-and-gravel aquifer.
20. In June 1999, the Piersons called Moss Well Drilling, Inc. because their residential well was not supplying domestic needs.
21. Bruce L. Moss is a part owner of Moss Well Drilling, Inc. He has been involved with the well-drilling business since he was about twelve years old, a period of 25 years. Included in his experience is the placement and servicing of pumps.
22. The Piersons' well was installed in March 1980. A five-inch well was drilled to 307 feet.
23. In 1980, the well was reported to produce five gallons of water per minute. At installation, the static water level was reportedly at a depth of 50 feet.
24. If the reported productivity of five gallons per minute was accurate, the effectiveness of the well was marginal.[FOOTNOTE C]
25. Moss inspected the Piersons' well in June 1999 and determined the water level to be at 130 feet, the same elevation as the Piersons' pump. His company lowered the pump to a depth of 180 feet.
26. On August 19, 1999, the Piersons again telephoned Moss Well Drilling and reported they were again experiencing problems with water in their well. Moss examined the existing pump and observed no problems with it, although the existing pump was not tested. He testified he was unaware of the age of the existing pump or of its efficiency.
27. Moss replaced the existing pump at the Piersons' residence with a more powerful one-horsepower pump and lowered the new pump to a depth of 240 feet. The work was completed by August 30, 1999.
28. Before replacing the existing pump, Moss had informed the Piersons about the opportunity to seek relief through the Department pursuant to the Groundwater Emergency Act.
29. On September 2, 1999, the Piersons telephoned Mark Basch of the Department of Natural Resources to report problems with their well. At this time, Moss Well Drilling had already completed the work described in Finding 25, Finding 26, and Finding 27.
30. Mark Basch is the Head of the Water Rights Section within the Department's Division of Water. He is a 17-year employee of the Department who holds a Bachelor's Degree in Geology from Ball State University and a Masters Degree in Geology-Hydrogeology from Indiana Unversity. Before his employment with the Department, Basch worked with an Indianapolis municipal-industrial drilling firm that did extensive drilling, testing, and pump work, as well as water-well drilling installations. Since his employment with the Department, he has investigated between 1,000 and 1,500 well failures pursuant to the Groundwater Emergency Act.
31. On September 10, 1999, Basch inspected the Piersons' well. According to the customary practice, the first stage of the inspection is to check the water level in the well. Using a water level probe, the level was found to be 66 feet measured in the well from the top of the casing down to the standing water level in the well.
32. Basch testified, that in measuring the depth of water level in a well, he seeks to determine the stable water level. When a well is operating, the observed water level can be temporarily lowered beneath the stable water level. Particularly in a well producing a lesser amount of water- -in other words, one that
[VOLUME 9, PAGE 22] is inefficient or only marginally efficient- -water levels may require a period of recovery following pumping.33. The customary practice in measuring the water level in a well is to place the probe in the well more than once to determine whether the level is stable or unstable and yet subject to recovery.
34. Basch testified he followed the customary practice on September 10, 1999 in measuring the water level in the Piersons' well. He was confident of the accuracy of the determination that the water level in the Piersons' well was at a depth of 66 feet.
35. Basch also testified that during subsequent measurements made in the Piersons' well, and in other wells in the area, water levels were found to be in the same range of depth. The depth of water in the Piersons' well was measured on November 24, 1999 and found to be 63 feet, one inch; in September 2000 and found to be 62 feet, two inches; in March 2001 and found to be 61 feet, one inch; on April 11, 2001 and found to be 59 feet, 4 inches; and, on June 4, 2001 and found to be 59 feet, six inches.
36. On cross-examination, Basch declined to speculate as to how Moss Drilling would have determined a water depth in the well of 130 feet, but Basch stated this depth was inconsistent with calculations made by the Department either at the Piersons' well or at other wells in the Urbandale Subdivision.
37. Basch testified his investigations at the Urbandale Subdivision suggested some wells were being affected by Marietta's quarry operations, but others were not. He attributed this distinction at least in part to the limestone aquifer on which the subdivision is located. Even for wells affected by Marietta's quarry operations, a water depth of 130 feet was not documented by the Department.
38. Based upon the Department's measurements of the Piersons' well, Basch determined the water level in the well was not substantially lowered below its normal elevation.
39. Basch is an expert in the science of hydrogeology. An expert is not required to observe first-hand every item upon which an expert opinion is based. An expert may give opinion testimony based on hearsay if the hearsay is of the type reasonably relied upon by experts in the field. Matter of Adoption of L. C., 650 N.E.2d 726 (Ind. App. 1995). Rules of Evidence 703. 312 IAC 3-1-10.
40. There are at least two of the requisite elements for relief under the Groundwater Emergency Act upon which the Piersons' evidence fails.
41. First, by having the well equipment removed and replaced before the Piersons notified the Department of their well problems, the Department was placed at a significant disadvantage in seeking to evaluate whether the well and its equipment were functioning properly. This disadvantage would not be fatal if equipment testing were performed and documented upon which Basch could later render an expert opinion. Whether testing would have been economically feasible is beyond the question. The testing was not performed. For Basch to render an opinion in the absence of testing, and without the ability to personally observe its functionality, would have been speculative and violative of the Groundwater Emergency Act.
42. Second, the water level of 66 feet found by Basch is more creditable than the level of 130 feet found by Moss Well Drilling.[FOOTNOTE D] Consistent with the customary practices, Basch tested and retested the water level in the Piersons' well, and in other wells in the Urbandale Subdivision. The water depth determined by Moss Well Drilling in the Piersons' well was fundamentally inconsistent, not only with the Department's multiple measurements in the Piersons' well, but also with its measurements at other wells in the Urbandale Subdivision. There is no showing that Basch should reasonably have relied upon the water elevation found by Moss Drilling. Indeed, the preponderance of the evidence is
[VOLUME 9, PAGE 23] that such reliance would have been unreasonable. The evidence does not support a finding the groundwater level at Piersons' well exceeded normal seasonal fluctuations, at least in light of general climatic conditions in the late summer of 1999. Once again, the preponderance of the evidence does not support a finding requisite to according relief in favor of the Piersons pursuant to the Groundwater Emergency Act.43. The Piersons have failed to sustain the burden of proof that the determination by the Department was erroneous or that they are entitled to relief under the Groundwater Emergency Act.
FOOTNOTESA. The statute authorizes relief in favor of a "nonsignificant ground water withdrawal facility" against a "significant ground water withdrawal facility." A "nonsignificant ground water withdrawal facility" is one that, in the aggregate, has a withdrawal capability of less than 100,000 gallons daily. A "significant ground water withdrawal facility" has a withdrawal capability of at least 100,000 gallons a day. A "nonsignificant ground water facility" is sometimes informally referred to as a "domestic well."
B. The Groundwater Emergency Act addresses a variety of concerns, including loss of potability and exceeding the recharge capacity of the source aquifer (what is sometimes called "mining"). These concerns are not at issue in the instant proceeding and will not be further referenced.
C. Bruce Moss testified the methodology used in 1980 for testing the well is not dependable and would not be used today. Within this limitation, however, five gallons per minute is the best estimate available for the original productivity of the well.
D. An inference might be drawn that Moss Well Drilling derived an inaccurate well depth of 130 feet because a measurement was taken before the well could achieve a stable water level following pumping by the Piersons. This inference might be supported because the Piersons' well was apparently of marginal effectiveness and because in late summer 1999 climatic conditions were unfavorable. The reasons for the determination are unclear. What is clear, however, is that the repeated and consistent measurements by the Department's hydrogeologist are more persuasive.