CADDNAR

[CITE: Moriarity v. DNR, 12 CADDNAR 254 (2010)]

 

[VOLUME 12, PAGE 254]

 

Administrative Cause #: 08-137W

Caption: Moriarity v. DNR

Administrative Law Judge: Jensen

Attorneys: Wright (Moriarity); Wyndham (DNR)

Date: June 4, 2010

 

FINAL ORDER:

 

[See Editor’s note at end of this document regarding change in the decision’s original format.]

 

90. Moriarity is hereby ordered to draw down the water level in the Moriarity Lake to an elevation of between 840 to 845 feet NAVD, which is consistent with the elevation of the toe of the Moriarity Dam as determined by the evidence presented in the instant administrative hearing.   Moriarity shall consult with a professional engineer qualified in dam construction, maintenance and safety in developing a safe and appropriate dewatering plan for accomplishing this obligation.

 

91. The water level within the Moriarity Lake shall be maintained at between 840 to 845 feet NAVD until Moriarity has complied with the remainder of this order as set forth in paragraphs 92 and 94, infra.

 

92. Moriarity is hereby ordered to comply with Indiana Code §14-27-7.5-9(a) by having the Moriarity Dam inspected by a professional engineer qualified in dam construction, maintenance and safety and submitting a report of that inspection to the Department within ninety (90) days of the issuance of a final order in this proceeding.  Such engineering inspection shall be completed as required to fulfill the usual and customary requirements of the Department but shall also address each violation as set forth within VTS-3905-DM and NOV-3894-DM.

 

93. Moriarity is hereby ordered to comply with Indiana Code § 14-27-7.5-9(b) by completing any maintenance, repair or alteration deemed necessary by the professional engineer who conducts the inspection as set forth in paragraph 92

 

94. In lieu of compliance with paragraphs 90 through 93 of this order, Moriarity may, under the direction of a professional engineer qualified in dam construction, maintenance and safety, dewater, breach and permanently decommission the Moriarity Dam.

 

PROCEDURAL HISTORY AND SUBSTANTIVE BACKGROUND:

 

1.      On November 6, 2007, Claimant, John Moriarity (Moriarity), by counsel, Thomas G. Wright, filed his request for administrative review of the Respondent, Department of Natural Resources’ (Department), Notice of Violation, identified as NOV-3894-DM, issued on October 19, 2007.  Moriarity’s request initiated Natural Resources Commission (Commission) administrative cause Moriarity v. Department, Administrative Cause 07-217W.

 

2.      During the April 9, 2008 prehearing conference conducted in Administrative Cause 07-217W, Moriarity represented to the Department and the administrative law judge that corrective action had been taken with respect to NOV-3894-DM.  Based upon that representation the Department agreed to conduct a re-inspection of the site and reevaluation of the notice of violation.  See Report of Prehearing Conference, April 17, 2008, Administrative Cause 07-217W.

 

3.      The Department conducted it re-inspection of Moriarity’s property and thereafter, on July 10, 2008, issued to Moriarity a second Notice of Violation, identified as VTS-3905-DM.  

 

4.      On August 2, 2008, Moriarity, by counsel, filed his request for administrative review of VTS-3905-DM, which request initiated the instant Commission administrative cause.

 

5.      A prehearing conference in the instant proceeding was scheduled to occur concurrently with a previously scheduled telephone status conference in Administrative Cause 07-217W on August 11, 2008.  At that time, the parties agreed that the two causes be consolidated into the instant proceeding and that administrative cause 07-217W be administratively dismissed.  See Report of Prehearing Conference, August 15, 2008, Administrative Cause 08-137W.

 

6.      The Department’s notices of violation were issued under the authority of Indiana Code § 14-25.5, which authorizes the Department to issue notices of violation for the enforcement of, as relevant to this proceeding, Indiana Code §§ 14-27.  Indiana Code § 14-25.5-1-1.  The Department alleges within its notices of violation that Moriarity violated Indiana Code § 14-27-7.5 et seq. pertaining to the regulation and classification of dams.

 

7.      Administrative review of notices of violation issued under Indiana Code §§ 14-25.5 are addressed procedurally by Indiana Code § 4-21.5-3-6 of the Administrative Orders and Procedures Act, commonly referred to as AOPA.  Also governing the procedural aspects of this proceeding is 312 IAC 3 et seq., which was adopted to assist in the implementation of AOPA in proceedings under the jurisdiction of the Commission.

 

8.      The Commission is the ultimate authority with respect to the subject matter of the instant proceeding.  312 IAC 3-1-2.

 

[VOLUME 12, PAGE 255]

 

9.      The Commission is possessed of jurisdiction over the persons of the parties and the subject matter of the instant proceeding.

 

10.  After the completion of discovery, Moriarity filed his Motion for Summary Judgment on September 24, 2008, to which the Department responded on October 16, 2008.

 

11.  On October 28, 2008, counsel, Jamie B. Dameron, entered her appearance as co-counsel on behalf of Moriarity.  Moriarity, at that time, sought and was granted an enlargement of time for the completion of summary judgment briefing.

 

12.  Summary judgment briefing was completed with the filing of Moriarity’s reply on January 12, 2009 and the Department’s sur-reply filing on February 11, 2009.

 

13.  On April 17, 2009, the administrative law judge’s Order Denying Claimant’s Motion for Summary Judgment, Designating Matters Found to Exist without a Genuine Issue of Material Fact Along with the Identification of Matters Remaining in Controversy, was entered.

 

14.  On April 28, 2009 the “Department’s Objections to Order Designating Matters Found to Exist without a Genuine Issue of Material Fact Along with the Identification of Matters Remaining in Controversy” was filed and after consideration by the administrative law judge, resulted in the issuance of the Amended Order Denying Claimant’s Motion for Summary Judgment, Designating Matters Found to Exist without a Genuine Issue of Material Fact Along with the Identification of Matters Remaining in Controversy on July 21, 2009.

 

15.  Within the amended order on summary judgment the following facts were determined to exist without genuine issue of material fact:

a.       A dam (hereinafter referred to as “the Moriarity Dam”) was constructed on Moriarity’s property located in Sections 15 and 16, Township 24N, Range 8E, Center Township, Grant County, Indiana in or around the year 2000;

b.      The Moriarity Dam was constructed for the purpose of establishing an aquaculture project in place of previously existing farm land.

c.       The Moriarity Dam impounds a volume of more than one hundred (100) acre feet of water and the impoundment covers in excess of thirty (30) surface acres.

d.      The impoundment is not of natural origin.

e.       No river of the State of Indiana exists in, on or along the Moriarity Dam.

f.       The Department issued Notices of Violation to Moriarity with respect to the Moriarity Dam on October 19, 2007 and again on July 10, 2008.

 

Amended Order Denying Claimant’s Motion for Summary Judgment, Designating Matters Found to Exist without a Genuine Issue of Material Fact Along with the Identification of Matters Remaining in Controversy, July 21, 2009, pg. 9.

 

16.  The administrative law judge also concluded on summary judgment that the word “stream” is not defined within Indiana Code § 14-27-7.5 and should be defined in accordance with its common and ordinary meaning.  Id. at pg. 7.

 

17.  The three matters that remained in dispute following summary judgment were characterized as follows:

a.       Insufficient evidence exists upon which to base a conclusion as to whether a “stream” exists in, on or along the Moriarity Dam.

b.      The impoundment in question may only be characterized as a “lake” if it is found that the impoundment resulted from the damming of a “stream.” …there exists insufficient evidence upon which to conclude whether a “stream” exists and consequently there also exists insufficient evidence upon which to conclude that a “lake” exists.

c.       Substantive matters relating to the appropriateness and validity of the Department’s Notices of Violation issued on October 19, 2007 and July 10, 2008, was not addressed within the summary judgment motion filed by Moriarity or the responses filed by the Department.  Therefore, all matters relating to the Department’s issuance of the Notices of Violation remain in dispute. 

Id. at pg. 9.

 

18.  On August 20, 2009, in advance of the upcoming administrative hearing, the administrative law judge reiterated that “the only matters remaining in controversy involves whether sufficient evidence exists to support the Department’s issuance of the notices of violation… and whether Mr. Moriarity’s dam exists in, on or along a stream or lake.”  Report of Telephone Status Conference, August 20, 2009, Administrative Cause 08-137W.

 

[VOLUME 12, PAGE 256]

 

19.  On the motion of Moriarity, the administrative law judge conducted a site view on October 29, 2009.

 

20.  An administrative hearing was conducted on November 4, 2009 to address the issues remaining in controversy in the instant proceeding, with Moriarity appearing by counsel, Thomas G. Wright[1], and the Department appearing by counsel, Eric L. Wyndham.

 

21.  On November 10, 2009, after the conclusion of the administrative hearing, attorney Kevin E. Green entered his appearance on behalf of Moriarity and sought an opportunity to conduct a post-hearing review for the purpose of evaluating the benefits of seeking an opportunity to file a post-hearing brief[2] or seeking leave to submit additional evidence.

 

22.  On November 12, 2009, the administrative law judge authorized the parties to file post hearing briefs or proposed orders not later than January 8, 2010.  However, in denying Moriarity’s motion for leave to submit additional evidentiary material the administrative law judge determined that “the compelling justification that would be required to reopen evidence subsequent to the conclusion of a full administrative hearing does not exist in this instance.”  Order on Claimant’s Motion for Leave to Submit Additional Evidence, December 29, 2009.

 

23.  The parties each filed post hearing briefs and this matter is now ripe for disposition.

 

FINDINGS OF FACT:

 

24.  Moriarity commissioned the Bonar Group to prepare engineering plans for the construction of a pond in 2000 but subsequently proceeded to construct a dam and pond himself without the oversight or involvement of an engineer.  Testimony of Moriarity, Respondent’s Exhibit 7.

 

25.  Robert W. Wilkinson (“Wilkinson”) and Kenneth E. Smith (“Smith”), both of the Department’s Division of Water, were integrally involved in the Department’s inspections of the Moriarity Dam and the issuance of the notices of violation.  Wilkinson is a licensed Land Surveyor, employed by the Department’s Division of Water, Surveying and Mapping Section since 1980 and has served as the Section Head since 1984.  Wilkinson has surveyed approximately 75 to 100 dams in his tenure with the Department.  Testimony of Wilkinson.  Smith is a licensed Civil Engineer since 1979, with over 33 years experience with the Department’s Division of Water and now serves as an Assistant Director to that Division.  Because of the multiple disciplines involved with dams and dam safety, Smith’s has focused a great deal of attention on hydrology, geotechnical issues and construction practices relating to dams.  Smith is involved in many organizations including the Association of State Dam Safety Officials and others related to dam safety.  Testimony of Smith.

 

26.  The Moriarity Dam’s construction was not consistent with the engineering plans prepared by the Bonar Group.  Testimony of Wilkinson, Testimony of Smith.  The Department’s inspections conducted in 2007 and 2008 revealed that an outfall depicted on the Bonar Group’s plans near the southwest corner of the southeast lobe of the lake had not been constructed. Testimony of Wilkinson, Respondent’s Exhibit 7, pg. 2.  Wilkinson testified that the physical attributes of the dam constructed on the Moriarity property (hereinafter referred to as the “Moriarity Dam”) and resulting lake (hereinafter referred to as the “Moriarity Lake”) are not in compliance with the Bonar Group’s engineering plans or Indiana law.

   

27.  The Moriarity Dam is approximately 1,400 feet in length and creates the Moriarity Lake, which covers approximately 29 surface acres.  Testimony of Rodney Neese, Respondent’s Exhibit 17.  It is acknowledged that Moriarity received a Special Permit on July 17, 2000 "to clear approximately ¼ acre of brush for construction of a dam on a portion of the 20.2 acre Classified Wildlife Habitat Area.  This project would then create approximately ¼ ac. of water on the Classified area which would be very beneficial for wildlife.”  Claimant’s Exhibit O.  In no manner can the special permit, which permits the construction of a dam for the creation of a ¼ acre water body, be construed to authorize the construction of a dam nearly 1,400 feet in length that impounds water over an approximate 29 surface acres.

 

[VOLUME 12, PAGE 257]

 

28.  Rodney Neese (“Neese”), a twenty-five year licensed surveyor for the Department’s, Division of Water Surveying and Mapping Section surveyed the Moriarity Dam and Moriarity Lake in July 2007.

 

29.  The specific purpose of Neese’s survey was to gather information to determine the “volume of the lake and the height of the dam.”  Testimony of Neese. To achieve this, Neese mapped the Moriarity Lake by using horizontal and vertical coordinates on a GPS system.  Id.  By placing a boat on the water Neese was able, through the use of this system, to establish the depth of the water at each particular horizontal coordinate.  Id.  The volume of water contained within the Moriarity Lake could be calculated through a number of means using of the data Neese collected and plotted on an aerial photograph.  Id.

 

30.  The plotted aerial photograph prepared by Neese reflects that he determined the depth of the water in the Moriarity Lake at over 150 horizontal coordinate points.  Testimony of Neese, Respondent’s Exhibits 3 & 4.

 

31.  The height of the Moriarity Dam was determined by running a direct cross section.  Testimony of Neese.

 

32.  Neese testified that he identified two inlets to the Moriarity Lake.  The inlets had “defined banks” and a “channel” and contained water during his July 2007 survey.  In Neese’s opinion the inlets constituted streams.  Testimony of Neese.

 

33.  Neese surveyed each of the inlets from a short distance landward to the edge of the water in the Moriarity Lake and determined that they entered the lake at points downgrade of their origination points.  Testimony of Neese, Respondent’s Exhibit 4, pg. 1.

 

34.  Neese’s survey data also established that the toe of the dam on the South side of the Southeast lobe was between elevations of 840.6 and 850.3 feet on the North American Vertical Datum of 1988 (“NAVD”), at all except four points that exceed 850.3 feet NAVD.  Respondent’s Exhibit 6 (All Points on Lake Section) & Respondent’s Exhibit 3.  The survey data generally reveals that the bottom of the lake is at elevations of between 843 and 853 feet NAVD.  Respondent’s Exhibit 6 (All Points on Lake Section)

 

35.  The survey data collected by Neese was used by Wilkinson to calculate the volume of water within the Moriarity Lake and height of the Moriarity Dam.  Testimony of Neese, Testimony of Wilkinson.  These determination were important in determining the Department’s jurisdiction over the Moriarity Dam.  Testimony of Wilkinson.

 

36.  The Moriarity Lake’s volume was calculated using the “ordinary high water mark”, or the line at which the nature of vegetation changes from terrestrial to aquatic, which was determined to be 857.3 feet NAVD.  Testimony of Wilkinson.  Wilkinson explained that the potential volume of water impounded by a dam is that amount of water that can be impounded up to the top of the dam, which is significantly greater than the volume calculated using the ordinary high water mark.

 

37.  In calculating the volume of water at the high water mark, Wilkinson also identified areas within the Moriarity Lake that he characterized as “incised areas”, or holes and craters that in the event of a catastrophic dam failure would not drain.  Wilkinson calculated the volume of water contained within the incised areas and reduced the total lake volume by that amount.  Testimony of Wilkinson.

 

38.  Wilkinson’s calculations revealed that at the high water mark the Moriarity Lake impounds 472.9 acre feet of water that would drain in the event of a catastrophic dam failure.  Testimony of Wilkinson, Respondent’s Exhibit 6.

 

39.  The Moriarity Dam was determined to be 21.3 feet at only one particular cross section.  Testimony of Wilkinson, Respondent’s Exhibit 6, Cross-Section 4.

 

40.  The Bonar Group prepared the engineering plans in 2000, before construction of the Moriarity Dam was commenced.  Respondent’s Exhibit 7.  Therefore, it is reasonable to infer that these plans and diagrams depict conditions existing before the original contours were modified by the construction of the Moriarity Dam and the subsequent inundation of the area with water that now constitutes the Moriarity Lake.

 

41.  Included within the Bonar Group’s engineering plans is a Topographical Plan that depicts “Shed A”, “Shed B”, “Shed C”, “Shed D” and “Shed E”.  Respondent’s Exhibit 7, pg. 1.  Based upon his experience as a surveyor, Wilkinson testified that the references to “Sheds” on engineering plans of this type are references to watersheds.  Within the areas depicted as “Sheds” there are solid black lines that are “following the turnback of the contour lines, which indicates that would be a stream channel.”  Testimony of Wilkinson.

  

42.  Smith agreed that within the engineering profession the Bonar Group’s use of the term “Shed” on its engineering plans would be consistent with the conclusion that they were referencing watersheds.  Respondent’s Exhibit 7, pg. 1, Testimony of Smith.  The five watersheds referenced by the Bonar Group all now flow into the Moriarity Lake.  Id.

 

[VOLUME 12, PAGE 258]

 

43.  Wilkinson has 29 years of experience working with aerial photographs and correlating features identifiable in aerial photographs to ground conditions.  Testimony of Wilkinson.  Based upon his review of a 1984 State Land Office Map depicting the area where the Moriarity Lake is now located, Wilkinson testified that there were five streams leading into what is now the Moriarity Lake.  Id.  Wilkinson testified that his stream identification is based upon such things as the identification in the aerial photographs of tree lines, lineal features with correlating downstream conditions, features and characteristics.  In the case of the area now covered by the Moriarity Lake there used to be two trees lines that indicated the existence streams in two locations, there are an additional two instances of lineal features that terminate downgrade at the site of two other small lakes and dams.  Testimony of Wilkinson. Also in this instance, two of Wilkinson’s stream identifications are confirmed by the alignment of Neese’s survey of the inlets.  Id, Respondent’s Exhibits 8 & 9.

 

44.  Using a process known as "georeferencing”, which involves the placement of aerial photographs onto a coordinate system, the footprint of the Moriarity Lake and other features were superimposed over the 1984 State Land Office Map.  Respondent’s Exhibit 9.  Through this process, the “tree line” depicted on the 1984 State Land Office Map pairs up nearly exactly with the inlet surveyed by Neese in 2007.  Id., and Testimony of Wilkinson.

 

45.  The streams, as evidenced by the existence of the tree lines in the 1984 State Land Office map, also appears to be consistent with the Bonar Group’s depiction of “Shed D”.  Respondent’s Exhibit 9 and Respondent’s Exhibit 7, pg. 1.  The locations of other streams identified by Wilkinson are also generally consistent with the “Shed” identifications on the Bonar Group’s engineering plans. Id.

 

46.  Numerous photographs taken in April 2008 depict the streams identified by Wilkinson that lead into the inlets surveyed by Neese.  Respondent’s Exhibits 12A – 12G.  The streams have clearly defined banks and channels that contain a sizeable amount of water.  Id.  Certain of these photographs also show clear vegetation patterns and other features consistent with the existence of a stream.  Respondent’s Exhibits 12C & 12E.  Obviously, water levels contained within any stream fluctuates with precipitation and it is important to note that the surrounding ground depicted in the photographs appears to be dry.  Respondent’s Exhibits 12A – 12H.

 

47.   Wyatt Johnson (“Johnson”), a licensed Engineer and Land Surveyor, with a focus on land planning, testified as to the existence of streams associated with the Moriarity Dam and Lake based upon visits to the site on December 2008 and August 2009.  Testimony of Johnson.  Johnson’s experience includes working for the Indiana Department of Transportation and serving as the Tipton County Surveyor and Highway Engineer.  Johnson designed construction projects but acknowledged that he has not constructed or planned the construction of dams and is not an expert in dam construction or dam safety.  Testimony of Johnson.

 

48.  The purpose of Johnson’s August 2009 visit to the site was to identify any waterways, swales, streams or other water flows into the Moriarity Lake.  Id.  Johnson testified that at the time of his visit in August 2009, the areas where the culvert pipes are located, which correlate to the inlets that were surveyed by Neese, were dry and grown over with vegetation.  Testimony of Johnson, Claimant’s Exhibits D, F – N.

 

49.  While the area up and downstream of the culverts that were identified as inlets by Neese, were dry in August 2009 it is evident that sufficient, although evidently intermittent, flow has established a defined channel and has prevented vegetative growth within that channel.  Testimony of Johnson, Claimant’s Exhibits G – I, K – N.  It is also evident from the photographs taken by Johnson in August 2009, that the vegetation is not growing within the defined channels but is instead growing on the banks of the channels and in some depictions the overgrowth of vegetation is creating a canopy over the small dry stream channel.  Claimant’s Exhibits G – I, K – N.

 

50.  In the area downgrade of the Moriarity Dam and lake is located a church, houses, and a second lake formed by a different dam.  Testimony of Wilkinson, Respondent’s Exhibits 5T-5Y.

 

51.  One house that exists downgrade of the Moriarity Dam is located only approximately 100 feet from the toe of the dam and sits at an elevation of 838.0 feet NAVD.  Testimony of Wilkinson, Respondent’s Exhibits 13, 5D & 5E.  On April 16, 2008, the elevation of the water contained within the Moriarity Lake was at 853.1 feet NAVD, which is 15.1 feet above the house that sits only 100 feet away.  Id, Testimony of Smith.  It is acknowledged that Moriarity owns this home that is presently occupied by his son.  Testimony of Moriarity.  Moriarity’s present ownership of this home does not diminish the necessity for the Department to consider its existence as part of the hazard classification determination regarding the Moriarity Dam. 

 

52.  On July 9, 2007, Neese obtained survey data reflecting that the “Edge of Water” in the Moriarity Lake was at elevation 856.4 feet NAVD.  Respondent’s Exhibit 4.

 

53.  The evidence supports the factual conclusion that a catastrophic breach of the Moriarity Dam in the area of this home would result in extensive damage to the home as well as peril to any occupants.  Testimony of Smith.

 

54.  The Department identified the approximate breach flow paths in the case of a catastrophic failure of the Moriarity Dam based upon topographical features and survey data gathered downgrade of the Moriarity Dam.  Testimony of Wilkinson. The breach flow approximations indicate that two public roads, East 38^th Street and South Stone Road, would be within the path of the water discharging from the Moriarity Lake.  Testimony of Wilkinson, Respondent’s Exhibit 15.  Furthermore, there are subdivisions and other private residences, churches and other properties within the flow path.  Id.

 

55.  The topographic map indicates that the elevation of the area surrounding the south and southwestern portions of the Moriarity Dam, where the Department anticipates the breach flows would occur; drop rapidly in most locations from 855 feet to approximately 830 feet NAVD.  Respondent’s Exhibit 15.

 

56.  The evidence presented by the Department to support the violations and unsafe condition of the Moriarty dam as cited within VTS-3905-DM and NOV-3894-DM was not contested by Moriarity.

 

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57.  Evidence presented through the testimony of Smith revealed depressions showing evidence of past wet conditions in the top surface of the dam, Respondent’s Exhibits 5F, 5M, 5N & 5O, trees growing in the dam or in the toe of the dam, Respondent’s Exhibits 5G & 5H, voids in the dam’s structure, Respondent’s Exhibit 5P, as well as seeps of water and sinkholes at the toe of the dam in places.  Respondent’s Exhibits 12I, 12J, 12Q & 12Q, Testimony of Smith.

 

58.  After receiving the first of the Department’s notices of violation, NOV-3894-DM, Moriarity removed the trees that were growing in the sides and toe of the dam but failed to do so in consultation with the Department or under the direction of an engineer and also failed to confirm that the roots associated with the trees had been removed from the dam.  Testimony of Smith.  Roots of living trees will cause water pathways in the dam that result in “piping failures” where the water follows the roots through the dam.  Testimony of Smith.  If  the root system of a removed tree is allowed to remain in the dam not only does the water pathway remain but the ultimate decay of the root system will result in actual voids in the dam which increases the piping effect and substantially weakens the structure of the dam.  Testimony of Smith.

 

59.  The Department also established the inappropriateness of the spillway or outfall design noting that the spillway is located too high on the outside slope of the dam.  Testimony of Smith, Respondent’s Exhibit 12K.  With the spillway located in this position, water flowing through the spillway falls onto the lower portion of the dam. The action of this flowing water has already caused visible erosion and deterioration of the dam below the spillway pipe. Testimony of Smith, Respondent’s Exhibits 12K & 12L.

 

60.  A second spillway was under construction at the time of the Department’s April 16, 2008 inspection.  Respondent’s Exhibits 12M – 12O, Testimony of Smith.  This spillway consists of black corrugated pipe lying in a concrete trough placed through the earthen dam.  Respondent’s Exhibit 12M.  The corrugated pipe sections are joined using screws that are likely, under the pressure of heavy water flow, to separate.  Respondent’s Exhibit 12N.  In the event of a failure of the corrugated pipe, the water would be conveyed through the concrete trough.  However, there are gaps within the sections of the concrete trough that would allow any water flowing directly within the trough to seep into the earthen part of the dam.  Id.  Should the corrugated pipe sections separate, the flowing water would seep through the gaps in the concrete trough deteriorating the dam and possibly resulting in a catastrophic failure of the dam.  Testimony of Smith.

 

61.  The Moriarty dam does not have a drawdown structure for the controlled lowering of the water level in emergencies or for routine maintenance and the dam has no “well defined emergency spillway”.  Testimony of George Crosby. 

 

 

CONCLUSIONS OF LAW:

 

62.  At issue in the instant proceeding is whether Moriarity’s dam is within the jurisdiction of the Department and, if that inquiry is determined affirmatively, whether the specific deficiencies noted within the Departments notices of violation are supported by credible and sufficient evidence.

 

63.  The Department is possessed of “jurisdiction and supervision over the maintenance and repair of structures in, on, or along the rivers, streams, and lakes of Indiana.”  Indiana Code 14-27-7.5-8(1). 

 

64.  Particularly at issue in the instant proceeding is Moriarity’s contention that his structure is outside the jurisdiction of the Department because it is not constructed “in, on or along” a stream or lake of Indiana.

 

65.  As was determined previously on summary judgment, a “stream” is:

“a body of water flowing in a channel or watercourse, as a river, rivulet, or brook; a steady current in water, as in a river to the ocean… any flow of water or other liquid or fluid…”  “stream." Dictionary.com Unabridged (v 1.1). Random House, Inc. 17 Apr. 2009. <Dictionary.com http://dictionary.reference.com/browse/stream; “a.  a flow or water in a channel or bed, as a brook, rivulet, or small river… b.  A steady current in such a flow of water,”  "stream." The American Heritage® Dictionary of the English Language, Fourth Edition. Houghton Mifflin Company, 2004. 17 Apr. 2009. <Dictionary.com http://dictionary.reference.com/browse/stream; “a current of water or other fluid; a liquid flowing continuously in a line or course, either on the earth, as a river, brook….”, "stream." Webster's Revised Unabridged Dictionary. MICRA, Inc. 17 Apr. 2009. <Dictionary.com http://dictionary.reference.com/browse/stream; “a flow of water in a channel or bed, as a brook, rivulet, or small river,” "stream." The American Heritage® Science Dictionary. Houghton Mifflin Company. 17 Apr. 2009. <Dictionary.com http://dictionary.reference.com/browse/stream; “a body of running water, esp. one moving over the earth’s surface in a channel of bed, as a brook, rivulet, or river,” Webster’s II, New Riverside University Dictionary, 1988.

 

Amended Order Denying Claimant’s Motion for Summary Judgment, Designating Matters Found to Exist without a Genuine Issue of Material Fact Along with the Identification of Matters Remaining in Controversy, July 21, 2009, pg. 8.

 

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66.  A “lake” being defined as “a reasonably permanent body of water substantially at rest in a depression in the surface of the earth, if both the depression and the body of water are of natural origin or part of a watercourse.  If part of a watercourse, a lake may be formed by damming a river or stream.”  312 IAC 1-1-21(a), emphasis added.

 

67.  The term “watercourse” is also not defined by applicable Indiana Code or Administrative Rule sections and thus the common and ordinary meaning must be applied.  Board of School Trustees v. Indiana Education Employment Relations Board, 497 N.E.2d 1084 (Ind.App. 2 Dist. 1986).

 

68.  A “watercourse” is “a stream of water, as a river or brook; the bed of a stream that flows only seasonally; a natural channel conveying water; a channel or canal made for the conveyance of water.”  "watercourse." Dictionary.com Unabridged. Random House, Inc. 16 Feb. 2010. <Dictionary.com; http://dictionary.reference.com/browse/watercourse>.

 

69.  Consequently, the Department will possess jurisdiction over the Moriarity Dam if it is determined that the dam’s construction occurred in, on or along a stream or that the lake created by the dam was formed by the damming of a watercourse or stream.

 

70.  The evidence clearly establishes that the Moriarity Dam and Lake were constructed and do exist in, on and along more than one stream.

 

71.  That the identified streams flow only seasonally, or intermittently, in no way diminishes the conclusion that they are, in fact, streams.  As was observed by Wilkinson, even rivers are capable in the right conditions of drying up.

 

72.  The Department’s jurisdiction is, however, further limited to those structures that have a drainage area above the dam of more than one (1) square mile, that exceed twenty (20) feet in height, that impound a volume of more than one hundred (100) acre-feet of water, or that are not built solely for erosion control, livestock watering, recreation, or providing a wildlife or fish refuge or haven.  Indiana Code § 14-27-7.5-1(1).

 

73.  The height of a dam is determined by the “vertical dimension of a structure as measured from the lowest point in the natural streambed or watercourse under the centerline of the structure to the top of the structure.”  Indiana Code § 14-27-7.5-2.

 

74.  The volume of water impounded by a structure is the amount of water impounded “(1) at or below the elevation of the top of the structure; or (2) at or below the maximum design flood pool elevation; whichever is lower.”  Indiana Code 14-27-7.5-6.

 

75.  There is no evidence to refute Moriarity’s claim that the lake was constructed as a fish and wildlife refuge but that fact alone does not eliminate the Department’s jurisdiction when the evidence clearly establishes that the dam impounds 472.9 acre feet of water in volume[3] and the dam height at one cross section has been proven to be 21.3 feet.  Testimony of Wilkinson, Respondent’s Exhibit 6.

 

76.  The Department’s jurisdiction includes the obligation to “grant permits for the construction and operation” of such structures and to “exercise care to see that the structures are maintained in a good and sufficient state of repair and operating condition to fully perform the intended purpose.”  Indiana Code § 14-27-7.5-8(a)(2 & 3).

 

77.  The Department has established hazard classification criteria consistent with Indiana Code § 14-27-7.5-8(b). Those criteria establish as follows:

 

(1) If an uncontrolled release of the structure's contents due to a failure of the structure may result in any of the following, the dam shall be considered high hazard:

(A) The loss of human life.

(B) Serious damage to:

(i) homes;

(ii) industrial and commercial buildings; or

(iii) public utilities.

(C) Interruption of service for more than one (1) day on any of the following:

(i) A county road, state two-lane highway, or U.S. highway serving as the only access to a community.

(ii) A multilane divided state or U.S. highway, including an interstate highway.

(D) Interruption of service for more than one (1) day on an operating railroad.

(E) Interruption of service to an interstate or intrastate utility, power or communication line serving a town, community,

or significant military and commercial facility, in which disruption of power and communication would adversely affect the economy, safety, and general well-being of the area for more than one (1) day.

 

312 IAC 10.5-3-1(c)(1).

 

[VOLUME 12, PAGE 261]

 

78.  A subdivision, another lake created by the construction of an unrelated dam and a church are all located down grade from the Moriarity Dam and Lake.  Two public roads also extend along the dam.  Another house, owned by Moriarity and occupied by his son, lies within 100 feet of the Moriarity Dam and 15 feet below the water level of the Moriarity Lake.

 

79.  Under the application of Indiana Code § 14-27-7.5-8(b) and 312 IAC 10.5-3-1(c)(1), Moriarity’s structure is a high hazard dam.

 

80.  The owner of a high hazard dam is obligated to have the structure inspected by a professional engineer at least once every two (2) years and submit an inspection report to the Department.  Indiana Code § 14-27-7.5-9(a).  The Department is also possessed of the authority to conduct an engineering inspection of a high hazard dam to ensure compliance with Indiana Code §§ 14-27-7.5 et seq.  Indiana Code § 14-27-7.5-9(d).

 

81.  The Department is obliged to issue a notice of violation under Indiana Code § 14-27-7.5-11 to the owner of a high hazard dam who fails to “have the structure inspected…” or who fails to “perform recommended maintenance, repairs, or alterations to the structure…” or who fails to “biennially submit the inspection report…” Indiana Code § 14-27-7.5-9(c).

 

82.  The notices of violation issued under Indiana Code § 14-27-7.5-11 are controlled by Indiana Code § 14-25.5-2, which states that:

A person who fails to mitigate a violation within the time set forth in a notice of violation is liable for:

(1) a civil penalty;

(2) permit revocation; or

(3) the sanctions under both subdivisions (1) and (2);

under IC 14-25.5-4.

 

Indiana Code § 14-25.5-2-6.

 

83.  The Department may, under Indiana Code §§ 14-25.5-4 et seq., revoke a permit and assess a civil penalty.  Indiana Code § 14-25.5-4-1 & 3.  In the event of the Department’s revocation of a permit, the Department may order the person whose permit was revoked to mitigate the violation or may elect to proceed with the mitigation of the violation.  In the latter instance the person whose permit was revoked remains liable for costs associated with the Department’s mitigation of the violation.  Indiana Code § 14-25.5-4-2.

 

84.  In this instance, Moriarity never obtained, or applied to obtain, a permit for the construction of the dam, which is the essential equivalent of having had a permit revoked. 

 

85.  The evidence supporting the violations cited within VTS-3905-DM and NOV-3894-DM was not contested by Moriarity.  Therefore, the Department’s orders to mitigate the noted violations as contained within those notices of violation are appropriate and supported by Indiana Code § 14-25.5-4-2.

 

86.  The Department’s notices of violation merely place Moriarity on notice that the Department “may assess a penalty of not more than ten thousand dollars ($10,000) for the violation of Indiana Code § 14-27.7.5 et seq. and that each day during which a violation continues may be considered a separate violation for purposes of assessing a civil penalty.”

 

87.  It is the Department that is authorized by Indiana Code § 14-25.5-4-3 to assess a civil penalty.  However, the notices of violation do not expressly assess such a penalty to Moriarity.  Moriarity was not, at the time of initiating the instant proceeding or at any time during the pendency of the instant proceeding, on notice of any actual civil penalty assessment.

 

88.  For the reason that the Commission is not authorized by Indiana Code § 14-25.5-4-3 to assess a civil penalty and for the further reason that the Department’s Notices of Violation do not actually assess such a civil penalty, a penalty assessment under Indiana Code § 14-25.5-4-3 by the Commission in this proceeding is inappropriate.

 

89.  Nothing contained within findings 86 through 88 would serve to prohibit the Department from the assessment of a penalty under Indiana Code § 14-25.5-4-3 if Moriarity continues in his failure to abate and mitigate the violations cited by the Department.

 

[EDITOR’S NOTE: The original format of the Administrative Law Judge’s Findings of Fact, Conclusions of Law, and Final Order has been modified to correspond with CADDNAR format.  The Final Order, Paragraphs 90 through 94, have been relocated to the “Final Order” section at the beginning of this document.]