CADDNAR

---

[CITE: Miami County, et al. v. DNR, 15 CADDNAR 17 (2018)]

[VOLUME 15, PAGE 17]

Cause #: 14-146W

Caption: Miami County, et al. v. DNR

Administrative Law Judge: Jensen

Attorneys:  Roberts, Breitenach (Miami County); Spahr (Hidden Hills); Gamboa (DNR)

Date: May 24, 2018

[NOTE: ON JUNE 29, 2018, WOODHAMS, et al. SOUGHT JUDICIAL REVIEW IN THE MIAMI SUPERIOR COURT I (52D01-1806-MI-253) AND MIAMI COUNTY COMMISSIONERS FILED IN MARION SUPERIOR COURT, CIVIL DIVISION 5. BOTH CASES WERE CONSOLIDATED AND TRANSFERRED TO MARION SUPERIOR COURT, CIVIL DIVISION 12 (49D12-1806-MI-025827). ON AUGUST 16, 2018, THE MARION SUPERIOR COURT AFFIRMED IN PART AND REVERSED IN PART THE COMMISSION. MARION SUPERIOR COURT ORDER. MIAMI COUNTY FILED AN APPEAL IN THE INDIANA COURT OF APPEALS ON SEPTEMBER 10, 2019 (19A-MI-02099). ON APRIL 14, 2020 THE INDIANA COURT OF APPEALS REVERSED AND REMANDED BACK TO THE MARION SUPERIOR COURT. INDIANA COURT OF APPEALS DECISION]

[Editor’s Note: Final Order follows Findings of Fact and Conclusions of Law.]

FINDINGS OF FACT AND CONCLUSIONS OF LAW

CASE SUMMARY AND JURISDICTION

1. At issue in this proceeding are six Notices of Violation (collectively referred to as “the NOVs”) issued by the Department of Natural Resources (Department) relating to six dams (collectively referred to as “the dams”) situated within the Hidden Hills Subdivision located in Peru, Miami County Indiana.  The NOVs are described as follows:

a. VTS-3939-DM was issued on October 2, 2014 and relates to a dam located at the southern terminal end of Harbour Pointe Drive, identified during the administrative hearing as the Southwest Dam.  The Department alleged that Walter B. and Dorothy Woodhams; Kenneth T. and Rebekah J. Hanson; Russell G. Bellar Lifetime Family Trust; Miami County and the Miami County Commissioners were owners of the Southwest Dam.

b. VTS-3940-DM was issued on October 2, 2014 and relates to a dam located on Harbour Pointe Drive between its intersections with Kim Road and Raccoon Hill Lane, identified during the administrative hearing as the West Central Dam.  The Department alleged that Walter B. and Dorothy Woodhams; Bryan B. Eckerly and Kyle A. Rothermel, Donald and Sharon Weeks; Ronald and Lori Potts; Miami County and the Miami County Commissioners were owners of the West Central Dam.

c. VTS-3941-DM was issued on October 3, 2014 and relates to a dam located on Kim Road immediately east of its intersection with Harbour Pointe Drive, identified during the administrative hearing as the Northwest Dam.  The Department alleges that Russell Bellar; Christopher P. Robinson; Robert W. and Lisa R. Stanfield; Miami County and the Miami County Commissioners were owners of the Northwest Dam.

d. VTS-3942-DM was issued on October 2, 2014 and relates to a dam located at the western terminal end of Grand Avenue identified during the administrative hearing as the Southeast Dam.  The Department alleged that Russell G. Bellar Lifetime Family Trust; Jeffrey and Lori Laycock; S&S Truck Repair; Miami County and the Miami County Commissioners were owners of the Southeast Dam.

e. VTS-3943-DM was issued on October 2, 2014 and relates to a dam located on El’ Burn Drive between its intersections with Striker Road and Raccoon Hill Road, identified during the administrative hearing as the East Central Dam.  The Department alleged that Leon and Judith Huskey; Geoffery and Wendy Langer; Eric and Jodie Marburger; Thomas and Linda Webster; Miami County and the Miami County Commissioners were owners of the East Central Dam.

f. VTS-3944-DM was issued on October 1, 2014 and relates to a dam located on Lakeview Drive between its intersections with Kim Road and Striker Road, identified during the administrative hearing as the Northeast Dam.  The Department alleged that Kenneth J. and Sandra E. Janowski; Larry Dean and Sheryl L. West; Brian A. Olson; Terry and Lillian Doane; Miami County and the Miami County Commissioners were owners of the Northeast Dam.

2. The Department identified Miami County and the Miami County Commissioners (referred to herein as “Miami County”) as owners of each of the dams due to the Department’s conclusion that County Roads exist over each of the dams.  The Department identified all other owners as fee title holders of the real property upon which the dams were constructed.

3. Miami County filed its “Response to Notice of Violation and Request for Administrative Review Pursuant to IC 4-21.5-3-6 and 7” with the Natural Resources Commission (Commission) on October 29, 2014 initiating a proceeding under Administrative Cause Number 14-146W.   Therein, Miami County denies being an “owner” of the dams maintaining that “[t]he only interest Miami County has is the maintenance of the respective roads across the respective dams.”  Miami County further advised that it “is not a fee simple owner of any of the subject dams or structures.”  Miami County averred that “plans and specifications for construction of the dams or structures” were not submitted for county approval and Miami County “has not adopted any ordinances or resolutions providing for regulations or maintenance of any dam in the subject area described as Hidden Hills Subdivision.”  Furthermore, Miami County maintained that the dams were constructed by Russell Bellar, the owner and developer of the Hidden Hills Subdivision, prior to the enactment of Indiana Code §§ 14-27-7.5, which provides for the regulation of dams.

4. On October 31, 2014, Petitioners, Walter B. and Dorothy Woodhams; Kenneth T. and Rebekah J. Hanson; and Russell G. Bellar Lifetime Family Trust filed correspondence with the Commission seeking administrative review of VTS-3939-DM, which initiated a proceeding under Administrative Cause Number 14-147W.

5. On October 31, 2014, Walter B. and Dorothy Woodhams; Bryan B. Eckerly and Kyle A. Rothermel (now Kyle A. Eckerly [1]); Donald Eugene and Sharon Elaine Weeks; and Ronald A. and Lorrie L. Potts filed correspondence with the Commission seeking administrative review of VTS-3940-DM, which initiated a proceeding under Administrative Cause Number 14-148W.

6. On October 31, 2014, Russell Bellar (now Hidden Hills Lakes Preservation, Inc.[2]); Christopher P. Robinson; and Robert W. and Lisa R. Stanfield filed correspondence with the Commission seeking administrative review of VTS-3941-DM, which initiated a proceeding under Administrative Cause Number 14-149W.

7. On October 31, 2014, the Russell G. Bellar Lifetime Family Trust; Jeffrey A. and Lori A. Laycock; and S&S Truck Repair, Inc. filed correspondence with the Commission seeking administrative review of VTS-3942-DM, which initiated a proceeding under Administrative Cause Number 14-150W.

[VOLUME 15, PAGE 18]

8. On October 31, 2014, Leon and Judith Huskey (now Leon Huskey [3]); Geoffery and Wendy Langer; Eric and Jodie Marburger; and Thomas and Linda Webster filed correspondence with the Commission seeking administrative review of VTS-3943-DM, which initiated a proceeding under Administrative Cause Number 14-151W.

9. On October 31, 2014, Kenneth J. and Sandra E. Janowski; Larry Dean and Sheryl L. West; Brian A. Olson (now Francine Benedict as the Personal Representative of the Estate of Brian A. Olson[4]); and Terry and Lillian Doan (now Larry and Rebecca Taylor[5]) filed correspondence with the Commission seeking administrative review of VTS-3944-DM, which initiated a proceeding under Administrative Cause Number 14-152W.

10. Throughout this proceeding, the Department has been represented by counsel from its Office of Legal Counsel with Elizabeth A. Gamboa serving at the time of the Administrative Hearing.  Miami County has been represented by counsel, Patrick J. Roberts and Sharon L. Breitenbach.  The remaining Petitioners, (collectively referred to as “the Hidden Hills Petitioners”) have been represented throughout the pendency of this proceeding by counsel, Anthony R. Spahr.

11. On November 20, 2014, Miami County filed a motion to consolidate the seven administrative proceedings identified in Findings 3 through 9.  This motion was granted during the prehearing conference conducted on December 12, 2014.  All of the requests for administrative review were merged into this proceeding and the remaining administrative proceedings were administratively closed.

12. The Department filed a Motion for Partial Summary Judgment on September 29, 2016 and Miami County filed its Motion for Summary Judgment on September 30, 2016.  All parties participated in filing responsive pleadings and an “Interlocutory Order on Petitioners, Miami County’s and Miami County Board of Commissioners’, and Respondent, Department of Natural Resources’, Competing Motions for Summary Judgment” (Interlocutory Order) was entered on December 14, 2016.  (See additional discussion at Findings 21 through 25.)

13. On February 27, 2017, a “Petition to Substitute and Remove Claimants” was filed to address certain property ownership changes that had occurred during the pendency of the instant proceeding.  That motion was granted on February 27, 2017 and a supplemental prehearing conference was conducted on March 24, 2017 for the benefit of the substituted parties.

14. Numerous status conferences were conducted as the parties engaged in discovery in preparation for the Administrative Hearing that was ultimately conducted on June 19 – 20, 2017.

15. The parties each accepted the opportunity provided to file post hearing briefs not later than July 21, 2017.

16. The Department is the Administrative Agency responsible for the regulation of dams pursuant to Indiana Code §§ 14-28-1 et. seq. and Indiana Code §§ 14-27-7.5 et. seq., along with predecessor statutes Indiana Code §§ 14-27-7 et. seq. and Indiana Code §§ 13-2-20 et. seq.  Indiana Code § 14-11-1-6.

17. For purposes of the instant proceeding the Commission is the “ultimate authority of the Department under IC 4-21.5.”  Indiana Code §§ 14-10-2-3 & 4-21.5-1-5.

18. Procedurally, Indiana Code §§ 4-21.5-3 and 312 IAC 3 control.  Pursuant to 312 IAC 3-1-10 the Indiana Rules of Trial Procedure and Indiana Rules of Evidence are applicable to this proceeding to the extent they are not inconsistent with Indiana Code §§ 4-21.5.

19. Pursuant to Indiana Code § 14-10-2-2, the Commission appointed Administrative Law Judge (ALJ) Jensen to preside over the instant proceeding.

20. The Commission has jurisdiction over the subject matter and the parties to this proceeding.

INTERLOCUTORY ORDER ON COMPETING MOTIONS FOR SUMMARY JUDGMENT

21. In their Motions for Summary Judgment, the sole issue for consideration presented by the Department and Miami County was whether Miami County is an “owner”, as that term is defined at Indiana Code § 14-27-7.5-4, of the dams at issue in the instant proceeding.

22. To aid in the understanding of the instant Order, portions of the Interlocutory Order are repeated or summarized here.  For purposes of facilitating review by the Commission and on judicial review, the Interlocutory Order is incorporated as if set forth verbatim within this Order.  (See Attachment A.)

23. An owner of a dam, as defined at Indiana Code § 14-27-7.5-4, is:

an individual, a firm, a partnership, a copartnership, a lessee, an association, a corporation, an executor, an administrator, a trustee, the state, an agency of the state, a municipal corporation, a political subdivision of the state, a legal entity, a drainage district, a levee district, a conservancy district, any other district established by law, or any other person who has a right, a title, or an interest in or to the property upon which the structure is located.

24. Within the Interlocutory Order the ALJ concluded that no genuine issue of material fact existed with respect to the following:

a. Miami County is a municipal corporation and a political subdivision in accordance with Indiana Code §§ 36-1-2-10 & 13.  Interlocutory Order ¶ 33.

b. Within the context of county governance a “highway” includes roads and bridges.  Interlocutory Order ¶ 42. 

c. Miami County is not a fee title holder to real property upon which the dams are constructed.  Interlocutory Order ¶ 34. 

d. By virtue of the dedication to public use contained within the plat of Hidden Hills Subdivision and acceptance by the Miami County Recorder, the roads at issue in this proceeding, except that portion of Grand Avenue traversing the Southeast Dam “were granted to” Miami County.  Interlocutory Order ¶ 39, citing Beaman v. Smith, 685 N.E.2d 143, (Ind. Ct. App. 1997).

e. Miami County has not accepted and possesses no jurisdiction or authority over the right-of-way associated with the portion of Grand Avenue traversing the Southeast Dam.  Interlocutory Order ¶ 35. 

f. Upon acceptance into Miami County’s highway system, Miami County holds jurisdiction and authority over and for this reason is an owner, within the meaning of Indiana Code § 14-27-7.5-4, of the platted rights-of-way associated with:

i. Kim Road, which traverses the Northwest Dam,

ii. El’ Burn Drive, which traverses the East Central Dam,

iii. Harbour Pointe Drive, which traverses both the Southwest and West Central Dams, and

iv. Lakeview Drive, which traverses the Northeast Dam.

Interlocutory Order ¶ 41.

[VOLUME 15, PAGE 19]

25. In accordance with Indiana Code § 4-21.5-3-23 and Indiana Rules of Trial Procedure, Rule 56(D), these facts are deemed established and the administrative hearing was conducted accordingly.

FINDINGS OF FACT[6]

General Facts and Facts Applicable to all Dams and all NOVs

26. Russell G. Bellar (Bellar) developed and platted the Hidden Hills Subdivision in five additions between approximately 1990 through 1996.  Testimony of Bellar[7].

27. As of the date of the Administrative Hearing, Bellar had been involved in the construction business for 47 years with his primary business activity being the construction of buildings associated with confined feeding hog operations.  Testimony of Bellar.  A portion of his business involves the operation of heavy equipment for excavation.  Id.  Bellar stated that his business also involves concrete construction adding that “we are probably one of the largest concrete pourers in the State of Indiana.”  Testimony of Bellar. 

28. When constructing the Hidden Hills Subdivision, Bellar engaged the services of two additional individuals, Harrold Bell and Pete Ramey[8].  Id.  Bellar explained that these men had previously been involved in the construction of the Salamonie Dam, the Mississenawa Dam and an unidentified dam in Huntington, Indiana.  Bellar testified “that’s all they done, was help build dams…”  Bellar did not elaborate with respect to how Bell and Ramey had “helped” with the dam construction activities in which they had previously engaged.

29. Bellar is not an engineer and is not a hydrologist and to his knowledge neither Bell nor Ramey were engineers.  Testimony of Bellar.  Bellar did not consult with an engineer in designing the dams, did not develop any design plans and did not create any as-built plans associated with the actual construction of the dams.  Id.

30. Bellar constructed residences in the platted Hidden Hills Subdivision in conjunction with the six water impoundments that resulted from his construction of the dams.  Exhibits 2 and C, Exhibit G, Testimony of Bellar, Jon Eggen, Leon Huskey, Jeff Laycock, Sharon Weeks, and Larry West.

31. Roads have been constructed across the tops of each of the dams.  Testimony of Jon Eggen, and Bellar, Exhibit 2.

32. The dams were constructed for the purpose of creating recreational bodies of water for the residents of the Hidden Hills Subdivision.  Testimony of Bellar.  The impoundments were stocked with fish and they are presently used for fishing, swimming, boating and provide for wildlife habitat and bird watching.  Testimony of Jeffrey Laycock, Leon Huskey, and Sharon Weeks.  The impoundments are not used for any commercial purpose.  Id.  The property associated with each Lot extends essentially to the center of the impoundment abutting that Lot in order to ensure private ownership of the entire impoundment. Testimony of Bellar.

33. The evidence supports the reasonable conclusion that only the Hidden Hills Petitioners benefit from the impoundments created by the dams.

34. The impoundments, which created waterfront residential properties, increased the value of the real property owned by the Hidden Hills Petitioners.  Testimony of Larry West.

35. Bellar did not obtain any permits from the Department before constructing the dams and was unaware of the Department’s jurisdiction over the dams or of any need to obtain permits from the Department associated with the construction of the dams.  Testimony of Bellar.

36. The evidence indicates that Bellar obtained the permits necessary for the construction of the homes within the Hidden Hills Subdivision and the evidence is not disputed that Bellar was in contact with various local governmental offices while actively developing the Hidden Hills Subdivision.  Testimony of Bellar.  The record is lacking any evidence that Bellar set out to intentionally ignore the obligation to obtain necessary Department permits associated with the construction of the dams but, as the developer, it was Bellar’s responsibility to identify the permits necessarily related to his construction activities.  The Department does not cite construction without necessary permits as a basis for issuing the NOVs.

37. Very little maintenance has been done on the slopes of the dams since they were constructed.  Testimony of Bellar.  Bellar elaborated that the Lots identified within the plat of the Hidden Hills Subdivision included the land beneath the waters impounded by the dams as well as the actual sloping sides of the dams.  Id.  With respect to the dams, Bellar stated “Once I sold those Lots, [the dams] belonged to the landowner.  It was not my responsibility to maintain it…it was theirs.” Id.

38. Before the dams were constructed, except for the existence of two springs that occur to the south of the Southeast Dam and the Southwest Dam, the area was “a dry ditch” that ran with water only when it rained.  Testimony of Bellar.  In its original state, the area was generally wooded but the woods was cleared and brush removed; the stumps were left in place for fish habitat.  Id. 

39. The exact location where the dams were constructed was stripped of all top soil, which was later used for the downstream slope and toe of the dams.  Testimony of Bellar.  For the width of approximately 16 feet for the full expanse of each dam, Bellar dug a ditch, or core, to “hardpan” or blue clay. Id. 

40. The excavation of the core completely destroyed the natural stream bed in the location of each dam and caused the toe of each dam to be located at a lower elevation than the original elevation of the natural stream bed.  Testimony of Bellar.

41. According to Bellar, the cores were eight to 10 feet deep and were then filled with high quality clay that was compacted after each six to eight inch addition of clay fill.  Id.

42. Kenneth Smith (Smith) has been employed by the Department’s Division of Water for over 40 years, serving for the most recent 23 years as an Assistant Director of the Department’s Division of Water.  Testimony of Smith.  Smith has been involved with issues involving dam safety for at least 33 years of his career with the Department.  Id.  Some of the many sections reporting to Smith are the Dam and Levee Safety Section, the Surveying and Mapping Section, the Enforcement and Compliance Section and the Project Development Group.  Id.  Smith is a Licensed Civil Engineer, which profession is critical to the Dam and Levee Safety Section’s ability to assess the quality and characteristics of dam structures for the purpose of working with dam owners to ensure the maintenance of those structures in an effort to protect lives and properties downstream of the structure.  Id.  The Surveying and Mapping Section develops flood stream studies, develops numeric land elevation data associated with such things as flood insurance mapping and provides support services for enforcement and compliance actions.  Id.  The Enforcement and Compliance Section works cooperatively with other Sections under Smith’s supervision in fulfilling the Division’s responsibility to ensure compliance with laws and to take enforcement action where necessary.  Id.  Smith holds a Bachelor Degree in Civil Engineering from Valparaiso University and a Masters of Business Administration Degree from Butler University.  Testimony of Smith.  Smith is a Licensed Professional Engineer in Indiana.  Smith is active in the American Society of Civil Engineers and sits on the Board of Directors for the National Association of State Dam Safety Officials.  Id.

[VOLUME 15, PAGE 20]

43. The Department first became aware of the dams in or near 2011 or 2012 when an employee of the Department’s Division of Water attended a meeting with Jan Krider, Indiana State Department of Homeland Security (DHS), to discuss “projected flood plain elevations in the valley downstream of these dams” that were of interest to the Mayor of the City of Peru.[9]  Testimony of Jon Eggen, and Smith.  As part of the meeting, Peru city officials, along with Department and DHS employees, visited the site of the dams to assess the city’s proposal to decrease the projected flood elevations in that valley due to the existence of the dams.  Testimony of Smith.  This occurrence drew attention to the dams “because they were already in bad shape.”  Id.  The Department, with the involvement of its Executive Office and the knowledge of State Legislators attempted to engage Bellar, as the original developer, and ultimately the Hidden Hills Petitioners in efforts to resolve the dams’ deficiencies.  Id.  These efforts, which delayed the Department’s issuance of the NOVs, proved unsuccessful in achieving remediation of the dams’ component failures.  Testimony of Smith.

44. It is not clear from the evidence that Miami County was involved in any of the efforts to resolve issues associated with the dams.  Testimony of Smith.  It is also not known whether Miami County was notified of the Department’s concerns about the dams before the NOVs were issued.  Id.  However, Larry West (West), who is one of the Hidden Hills Petitioners was and, on the date of the administrative hearing remained, a member of the Miami County Board of Commissioners.[10] Id.  Smith recalled in his testimony that during the meeting conducted with the Hidden Hills Petitioners West was “making promises for the County that I was kind of surprised by”[11].  West, who testified during the administrative hearing, did not contradict this evidence. 

45. Jon Eggen (Eggen) has been the manager of the Compliance and Enforcement Section of the Department’s Division of Water since 2003.  He holds a Bachelor Degree in Biology from North Dakota State University.  Testimony of Eggen.  Eggen was previously employed by the United States Army Corps of Engineers and the Michigan Department of Environmental Quality before commencing his career with the Department’s Division of Fish and Wildlife.  Id.  In his present position, Eggen is responsible for prioritizing and overseeing the investigation of violations involving several areas of the law, including the Dam Safety Act codified at Indiana Code §§ 14-27-7.5.  Id.  His duties require coordination with multiple divisions of the Department as well as other state, federal and local offices.  Testimony of Eggen.  Eggen is responsible for drafting notices of violation such as the ones at issue in this proceeding based upon information compiled from multiple sources. Id., Exhibit A.

46. The NOVs were prepared by Eggen based upon information he collected and information prepared by other Division of Water staff.  Testimony of Eggen.  The NOVs were ultimately approved and issued by the Director of the Department’s Division of Water.  Id., Exhibits D, E, F, G, H, and I.

47. Other Department witnesses providing testimony and evidence regarding the condition of the dams were George Crosby (Crosby) and Darrin Miller (Miller). 

48. Crosby has held the position of Manager of the Dam Safety Program within the Department’s Division of Water since 1990. Testimony of Crosby.  In overseeing the Dam Safety Program, Crosby, along with two field inspectors, one engineer, and one engineering geologist, conduct inspections of over 1,000 dams that are within the Department’s jurisdiction.  Id. The Dam Safety Program also reviews reports of condition for high hazard dams, engages in pre-coordination meetings with owners and engineers engaged in constructing or rehabilitating dams.  Id.  These activities routinely involve the review of geotechnical and hydrology plans.  Id.  Crosby also serves as a technical advisor for the Indiana Department of Homeland Security during significant rainfall events regarding at-risk dams.  Testimony of Crosby.  Crosby holds a Bachelor Degree in Geology and a Master Degree in Engineering Geology, is an Indiana Licensed Geologist and a member of the Association for Dam Safety.  Id.  Crosby is significantly engaged in public outreach and education regarding dam safety and was instrumental in the creation of a Department guidance document on new dam construction and dam rehabilitation as well as the Indiana Dam Safety Inspection Manual.  Id.

49. Miller has been an Engineering Section Manager for the Department’s Division of Water since 2007.  Testimony of Miller.  Before 2007 Miller worked as a staff engineer for the same Section of the Division.  Id.  In both positions Miller has been responsible for reviewing permit applications, conducting hydraulic modeling, fulfilling flood elevation requests, reviewing dams and working with the national flood insurance program.  Id.  Miller holds a Bachelor Degree in Agricultural Biological Engineering from Purdue University, a professional engineering license from the State of Indiana and is also a Certified Floodplain Manager endorsed by the Association for State Floodplain Managers.  Id. 

50. Eggen’s initial action after becoming aware of the dams was to determine their origin and history and to ascertain if the dams were subject to the regulatory jurisdiction of the Department.  Testimony of Eggen.  Eggen researched Departmental records for evidence of permitting or other correspondence associated with the dams and found none; he viewed aerial photography and considered the dam construction activities through a comparison of historical aerial photographs.  Id.  Ultimately, Eggen viewed available “county GIS and property records” to compile a list of fee title holders.  Id.

51. Through aerial photography, Eggen determined that the dams are configured in “two valleys with a series of three dams in each valley.  Testimony of Eggen.  So there’s basically three dams in a row, with one above the other in two separate valleys.”[12] Id.

52. Eggen also assigned staff with various areas of expertise within the Division of Water to determine the height of the dams and he reviewed “stream stats” to verify the “existence of streams running through these dams.”  Testimony of Eggen.

53. Eggen’s determination that a stream runs through the dams was not contradicted by any other evidence of record.

[VOLUME 15, PAGE 21]

54. This proceeding exemplifies the challenge faced by the Department in carrying out its statutory obligations when the original condition of a natural resource has been altered or destroyed.

55. The Department maintains that the dams are each at least 20 feet in height and it is upon this sole basis the Department contends the dams are within its regulatory control and governance.  Testimony of Eggen, and Crosby.  Eggen, reciting Indiana Code § 14-27-7.5-3, identified that a dam’s height is calculated as “the vertical dimension of a structure as measured from the lowest point in the natural stream bed or watercourse under the centerline of the structure to the top of the structure.”  The lowest point of a natural streambed is typically identified by observing the terrain and identifying the lowest point of the channel.  Testimony of Miller.

56. Rod Neese (Neese), a professional surveyor, and previous Manager of the Department’s Division of Water Surveying Section, was tasked with identifying the height of the dams.  Testimony of Eggen.   Neese utilized the Digital Elevation Model (DEM) data created by the use of LIDAR (Light Detection and Ranging) as the basis for his calculations and prepared a report reflecting his methodology and conclusions.  Testimony of Eggen, Exhibit P[13].

57. Miller, who has personally used LIDAR on a daily basis “since the product was available,” in or near 2013, based upon his independent review of Neese’s report, testified that the methodology employed by Neese to identify the height of the dams is valid, the data contained within the report is correct and the conclusions reached are accurate.  Testimony of Miller.  While Exhibit P was prepared by Neese, who was not present for cross examination, Miller personally confirmed the accuracy of Neese’s data and all calculations contained within Exhibit P.  Id.  Miller’s testimony regarding the content of Exhibit P is actually based upon Miller’s personal knowledge.  Id.

58. Greg Deeds (Deeds), has been a licensed land surveyor since 1983.  Testimony of Deeds.  Deeds conducted survey work in preparation of the Hidden Hills Subdivision plats but did not conduct any depth or elevation surveys associated with the construction of the dams or the land now lying beneath the impounded water.  Id.  Deeds acknowledged that he had not reviewed the data or calculations contained within Neese’s report, but offered the opinion that the methodology used by Neese to determine the height of the dams was inappropriate and prone to inaccuracy.  Id.

59. Miller testified that LIDAR is “a surveying method where they take a laser, it’s a pulsed laser …shot at a target and the laser bounces back to the sensor.  Based upon that return time frame and wavelength they can build a digital 3D model of that target.”  The LIDAR data used by Neese was collected between 2011 through 2013 for the purpose of creating a 3D model of the terrain for the entire State of Indiana.  Testimony of Miller and Greg Deeds.  The elevations identified from the laser pulses shot and laser pulse returns were used to create the DEM, which is a software dataset consisting of land surface elevations used for surveying and for the generation of two foot contour maps.  Id.  Aerial photographs were taken contemporaneous with the collection of the elevation data to create the DEM in order to allow the elevation data to be overlaid upon specific points on the aerial photographs.  Testimony of Miller.  

60. LIDAR data is used routinely in the fields of hydrology and hydraulic modeling and Department staff use LIDAR daily.  Testimony of Miller.  LIDAR data is used by surveyors, engineers, meteorological agencies and other governmental agencies, including NASA (National Aeronautics and Space Administration).  Id. 

61. The accuracy of the elevations recorded within the DEM is “plus or minus one foot” as compared to elevations obtained using a traditional survey.  Testimony of Miller, and Deeds.  The margin of error is elevation point specific and is not cumulative upon the total number of elevation data points considered.  Testimony of Deeds.  Under this margin of error, the elevation of any point used by the Department could be one foot higher or one foot lower.  Testimony of Miller & Deeds.  Deed’s agreed that the difference resulting from the use of LIDAR data and traditional surveying “would be small” and made no effort to further quantify the differences.

62. LIDAR is not able to identify the elevation of the land surface beneath water because the laser pulses used to collect the LIDAR data are not able to penetrate water.  Testimony of Miller.   For this reason, across bodies of water the elevations reflected will be the top of the water surface on the date the laser pulses were shot and collected.  Id. 

63. In calculating the height of the dams, Neese, using data from the DEM, identified the elevation of the natural stream bed upstream of the northern-most water impoundments (hereafter referred to as the “upstream elevation point”) and downstream of the southern-most dams (hereafter referred to as the “downstream elevation point”).  Testimony of Miller.  Neese simply drew a straight line between the upstream elevation point and the downstream elevation point for each series of dams to establish a consistent slope (hereafter referred to as “line of slope”), to estimate the elevation of the natural stream bed beneath the center line of the dams.  Again, using elevation data from the DEM, Neese identified the elevation of the top of each dam and calculated each dam’s height by subtracting the elevation on the line of slope consistent with the point at which the elevation of the top of dam was taken.  Testimony of Miller.   

64. In light of the fact that laser pulses used by LIDAR cannot penetrate water in most instances, the identification of the upstream elevation point and the downstream elevation point would be based upon the water surface in the stream on the date the LIDAR was shot.  Testimony of Miller.  The actual natural stream bed elevation would be lower than the elevation of the water surface, which would have also lowered the elevation on the line of slope at points consistent with the points at which the top of dam elevation was obtained.  Id.  Any resulting error would serve to decrease the height of the dams, which would be favorable to Miami County and the Hidden Hills Petitioners.  Id.

65. The concept of striking a straight line between the upstream elevation point and the downstream elevation point for each series of dams is logical.  However, it is acknowledged the pre-construction rise and fall of the terrain between the two linear elevation points is not considered by this method.  Testimony of Miller & Deeds.

66. Deeds testified “it’s never a perfectly straight line.  [Neese] came up with an estimation that way but ground usually comes up and goes down.”  Water clearly flows downhill but the flow will be at varying rates depending upon the actual slope of the terrain.  Testimony of Deeds.

67. Bellar’s excavation of the earth for the full expanse of the dam in an area approximately 16 feet wide to a depth of eight to 10 feet to find “hardpan” upon which to construct the dam eliminated the natural streambed beneath the dams.  Testimony of Bellar, Deeds & Miller.  Furthermore, Bellar testified that when preparing for construction of the dams and creation of the impoundments he cleared the naturally wooded area where water is now impounded.  Bellar left tree stumps in place for habitat but it is reasonably concluded that the use of a “627 Earthmover that, full, weighed over 225,000 pounds” and a “D-6 that pulled a sheepsfoot” used in constructing the dams along with skidders and other heavy equipment necessary to remove the trees and other vegetation from the valleys altered the land beneath the impoundments.  Testimony of Bellar.  

[VOLUME 15, PAGE 22]

68. The evidence included the discussion of other possible methods to identify the height of the dams, including the taking of core samples, identifying the deepest point in the water on the upstream side of each dam either by Sonar (Sound Navigation and Ranging), or by use of a rope with a weight affixed to one end, such as a plumb bob device.  Testimony of Deeds, and Miller.  These methods, the same as the method utilized by Neese, would not identify the exact elevation of the natural streambed.  Id.  Methods besides that used by the Department might be used to estimate the elevation in the same manner as the method used by the Department, however, any present attempt to identify the natural stream bed would yield only an estimation.  Testimony of Miller & Deeds.

69. In addition to alterations to the land surface caused by Bellar’s heavy equipment, between the time of construction in 1990 to 1996 and 2011 to 2012, when the Department set out to determine the heights of the dams, sedimentation from erosion of soil surrounding the impoundments would have occurred to further complicate any present attempt to identify the true elevation of the natural stream bed.  Testimony of Deeds, and Miller.

70. Without benefit of pre-construction surveys or “as-built” diagrams, which Bellar did not prepare, the evidence is undisputed that identifying the elevation of the natural stream bed under the center line of the dams or beneath the surface of the impounded water is impossible.  Testimony of Deeds, and Miller.  The evidence is, therefore, also undisputed that identification of the natural stream bed is impossible at this time and therefore, no methodology employed can provide an exact measurement of dam height.

71. In light of the fact that Bellar’s construction technique involved the removal of all material down to “hardpan” for the entire expanse of each of the dams, it is reasonably concluded that core sampling would not be capable of identifying the original natural stream bed in any event.  Testimony of Deeds.  The Department did not conduct core sampling to identify the original natural stream bed.  Testimony of Eggen.  It is reasonably concluded from the evidence that this method would generate no useful data regarding the location of the natural streambed beneath the centerline of the dams. 

72. Arguably, the use of Sonar, which operates underwater by sending sound pulses and listening for return sound echoes, in a manner similar to the use of laser light beams for collecting LIDAR data, could provide a very detailed diagram of the surface beneath the impounded water.  This method of diagraming the surface, as compared to the use of a plumb bob device, might identify anomalies, such as tree stumps and debris or random depressions or hollows, which may render it more accurate.  However, because this method would also not be based on the actual pre-construction location of the natural stream bed any dam height calculation based upon this data would, once again, be subject to dispute.

73. Use of a plumb bob device would not be based upon the actual natural stream bed, but instead would simply be a different means of calculating estimated elevations of the natural stream bed prior to the dams’ construction.  Testimony of Deeds.  Problematic with this approach is the fact that without visibility beneath the surface of the impounded water it would be impossible to know if the weighted end of the rope was resting on a tree stump, was entangled in debris or was possibly resting on the bottom of an anomalous depression or hole. Testimony of Deeds.  Due to these limitations, the determination of the dam’s heights in this way is equally subject to controversy.

74. Deeds explained that using a plumb bob device it would be necessary to take several measurements to identify the deepest point in the impoundment because “that would be where the toe of the [dam] stopped at the bottom of the pond.”  Id. 

75. The method proposed by Deeds would identify the elevation of the land beneath the deepest point in the impoundment, which would represent the lowest elevation.  Testimony of Deeds.  Deeds offered no explanation for his conclusion that the current lowest elevation of land beneath the impounded water would be consistent with the natural stream bed at the centerline of the dam.  Id.  Deeds’ observed that his method of dam height calculation favors the use of a point beneath the surface of the impounded water because that point would be closer laterally to the actual dam structure under the apparent assumption that this point would provide a better representation of the natural topography.  Testimony of Deeds.  The bases of Deeds’ assumptions are not clear.

76. Deeds’ method of establishing the height of the dams by comparing the land elevation at the lowest elevation beneath the impounded water to the elevation at the top of the dam would, by design, establish the absolute maximum dam height possible.  

77. Without the ability to consider topographical features and the rise and fall of the terrain between the upstream elevation point and the downstream elevation point there is potential for error in calculating the actual height of the dams from the original natural streambed beneath the dam.  That potential for error is seemingly increased as the linear distance between the two elevation points increases.  Because of the stacking of three sequential and alternating impoundments and dams, the linear distance between the upstream elevation point and the downstream elevation point is certainly greater than would be the case for one dam and one impoundment.  The evidence establishes that the full distance between the upstream elevation point and the downstream elevation point for the west series of dams (Northwest, West Central and Southwest Dams) is approximately 4,236 feet, while the distance between the upstream elevation point and downstream elevation point for the east series of dams (Northeast, East Central and Southeast Dams) is approximately 3,715 feet.  Testimony of Miller, Exhibit P.

78. Despite the fact that the points used by the Department are at significant lateral distances from the dam structures, its method of calculating the height of the dams includes the use of the lowest point in the natural stream bed at the upstream elevation point and at the downstream elevation point, which are the closest points to the dams and impoundments where natural stream bed actually continues to exist.  Testimony of Miller. 

79. Because identification of the natural stream bed under the dams or beneath the surface of the impounded water is, at the present time, impossible, any attempt to measure or calculate the exact height of the dams would be an estimation and “could have some flaws.”  Testimony of Deeds.  The evidence overall does not support a conclusion that Deeds’ proposed methods for calculating the dams’ heights would be any more, or any less, accurate than the Department’s methodology.  

80. The upstream elevation points and downstream elevation points were identified for the eastern and the western series of dams using the DEM data.  Testimony of Miller.  The Department’s approach to calculating the height of the dams seems designed to identify a median slope to the terrain as opposed to Deeds’ method, which would consistently establish each dam’s height at its maximum possible height.  The calculations made by the Department are “conservative”, which would give the benefit of the doubt to Miami County and the Hidden Hills Petitioners.

81.  The Department’s methodology appears to present a more reasoned and conservative approach.

82. In any event, even though Miami County and the Hidden Hills Petitioners were clearly aware of other methods to calculate the heights of the dams, neither commissioned Deeds or any other person to take the measurements or to make dam height calculations.  With the exception of the testimony of Jeffrey A. Laycock regarding the Southeast Dam, which is discussed below, neither the Hidden Hills Petitioners, nor Miami County presented evidence regarding the height of the dams. 

[VOLUME 15, PAGE 23]

83. With respect to the height of the dams, Bellar stated “I don’t know; I never measured them.”

84. The Department’s evidence provides two sets of data for the eastern series of dams.  Exhibit P, pgs. 2 & 13.  Consideration of the topographical maps reveals that the data most favorable to Miami County and the Hidden Hills Petitioners is correct.  Exhibit P, pgs. 8, 9, & 10. 

85. For the eastern series of dams (Northeast, East Central, and Southeast Dams) the upstream elevation point was identified to be 746 feet and the downstream elevation point was identified as 678 feet.  For the western series of dams (Northwest, West Central and Southwest Dams) the upstream elevation point was identified to be 755.5 feet and the downstream elevation point was identified as 678.9 feet.  Testimony of Miller, Exhibit P.

86. For the eastern series of dams, a straight line was struck between the upstream elevation point of 746 feet and the downstream elevation point of 678 feet in order to calculate estimated elevations of the natural stream bed beneath the center line of the Northeast Dam to be 726 feet, the East Central Dam to be 698 feet, and the Southeast Dam to be 681 feet.  The same process was followed for the western series of dams using the upstream elevation point of 755.5 and the downstream elevation point of 678.9, which resulted in estimated elevations for the natural streambed beneath the center line of the Northwest Dam to be 734.3 feet, the West Central Dam to be 711.2 feet, and the Southwest Dam to be 682.9 feet. Id.

87. These estimated elevation points identified in Finding 90 are the only elevation points disputed by Miami County and the Hidden Hills Petitioners.  Despite identifying possible inaccuracies in the calculation methodology used by the Department, neither Miami County, nor the Hidden Hills Petitioners presented evidence to refute the Department’s determinations.

88. Crosby inspected the dams in March 2012 and again in August 2014.  Testimony of Crosby, Exhibits R & S. 

89. Crosby explained that the “stacking” of these dams one above the other complicates the ability to assess the consequences of a dam failure.  One challenge results from the potential for an upper dam breach to result in that impoundment’s sudden release of large quantities of water into a lower impoundment causing stress on a lower dam thereby triggering a second, and potentially a third, dam failure.  Id.  Another concern is that the water in a lower impoundment will “back-up” such that the toe of the dam immediately upstream will be submerged in water.  Id.  Either of these situations impairs the overall structural integrity of one dam and potentially impacts the integrity of the entire series of dams in the affected valley.  Exhibit R.

90. With respect to all of the dams, except the Southwest Dam, the primary spillways are “slab on grade” spillways.  Testimony of Crosby and Exhibit R.    A “slab on grade” spillway is designed to take water over the top of the dam through a concrete box and chute, which is a risky spillway design under the best circumstances.  Testimony of Crosby.  For a slab on grade spillway to serve adequately it must be designed elaborately, with a large number of redundancies below the spillway to prevent water from eroding the downstream face of the dam.  Id.  Crosby testified that this type of spillway frequently allows water to seep into cracks and joints in the concrete chute thereby causing erosion and degradation of the dam as a whole.  Crosby testified that maintenance of this type spillway design is “absolutely critical.” 

91. In addition to a primary spillway, all dams should also be constructed with an additional “emergency spillway,” which is designed to carry excess water during unusually heavy periods of precipitation.  Testimony of Crosby.  None of the dams were constructed with an emergency spillway.  Id. and Exhibit R.

92. The Southwest Dam was constructed without benefit of any type spillway, either primary or emergency.  Testimony of Crosby and Exhibit R.

93. None of the dams were constructed with “trash racks” to prevent debris from entering into and plugging the flow capacity of the spillway.  Testimony of Crosby, Exhibit T (21, 35 & 38).  A trash rack should be designed to capture debris preventing it from entering the spillway where it can impede the flow of water, but must also be large enough to allow for the continuous flow of water to the spillway.  Testimony of Crosby. 

94. Crosby noted that one dam, the Northwest Dam, has a screen across the spillway but this is not a trash rack.  Id.   While the purpose for the screen is not clear that screen is actually an impediment to the intended operation of the spillway because its design actually promotes the build-up of debris that will impede water access to the spillway.  Id., Exhibit T (42).

95. A further challenge associated with the dams is the existence of roads over the tops of the dams.  Testimony of Crosby and Exhibit R.  Ideally, a road constructed over a dam would include a bridge structure above the dam crest to allow sufficient freeboard to prevent water overtopping the dam and flooding the road surface during heavy rainfall events.  Testimony of Crosby.

96. During the two years and five months intervening between Crosby’s 2012 and 2014 inspections, the lack of maintenance of the dams became increasingly apparent.  Id., Exhibit S.  The weeds, brush and tree growth on the dams had, in most instances, continued without any apparent attention and the dam failures and deficiencies observed in March 2012 had not been corrected or addressed.  Testimony of Crosby, Exhibits S & T. 

97. A dam’s surfaces should be maintained free of all weeds, brush, and trees in order to facilitate adequate inspection and identification of deficiencies with the dam and its component features.  Testimony of Crosby.  The root systems of trees and other woody vegetation penetrate and break up the soils compacted on a dam surface thereby creating a conduit for water infiltration as well as decreasing the strength and stability of the structure.  Id.  Also the growth of brush and weeds encourage habitation by burrowing animals, the burrows of which also create conduits for water seepage and related erosion of the earthen dam structure.  Id. 

98. To eliminate the weakened soils and the conduits for water created by tree roots and the root systems of other woody vegetation allowed to grow on dams it is necessary to remove the trees and vegetation as well as significant portions of earthen material.  Testimony of Crosby.  The extent of these remedial efforts will depend upon the size, number, and location of the trees and other woody vegetation.  Id.

99. Because of overgrowth of vegetation on each of the dams it was impossible for the Department to identify the full extent of deterioration and deficiency.  Testimony of Crosby.

100. Generally, all of the dams are “in a state of component failure and will likely breach in a significant rainfall event.”  Testimony of Crosby, and Smith, Exhibits R, S, & T.  Individual components of a dam are intended to work together cohesively.  When one component of a dam fails, that failure, without correction, destabilizes other components.  Testimony of Crosby.  As the failure of dam components occur, the likelihood for a complete and uncontrolled breach of a dam increases.  Id.  A complete breach or failure will result in the uncontrolled loss of water from the impoundment created by the dam.  Id.

[VOLUME 15, PAGE 24]

101. In this instance, an uncontrolled loss of water from an upper impoundment will result in additional and sudden stress upon the downstream dam structures within the affected valley.  Testimony of Crosby.

102. Smith was “horrified” by the condition of the dams he viewed in 2012 and characterized the dams as the “worst dams I’ve ever seen.”  Testimony of Smith.  The NOVs provide two options for remediating the dams which can be summarized as being either conducting a controlled breach followed by demolition of the dams or obtaining a permit for reconstruction of the dams.  Exhibits D, E, F, G, H, and I.  If the owners of the dams continue to do nothing to address the failures that are underway “eventually these dams will fail and if we’re lucky they’ll only do damage; if we’re not lucky they’ll kill somebody.”  Testimony of Smith. 

103. Each of the dams is owned by multiple fee title holders and each of them, except the Southeast Dam, has a road right-of-way under the control and jurisdiction of Miami County traversing the dam.  Testimony of Bellar. 

104. Because a dam must be constructed as one structure comprised of cohesively functioning components, a dam owned by multiple owners cannot be constructed or maintained in portions such that one fee title owner can maintain only the portion of the dam located within that fee title holder’s real property boundary lines.  Testimony of Crosby.  To construct or remediate a dam in this manner does not serve to ensure that the dam components located within each individual fee title holder’s property boundaries will continue to function cohesively as one unit.  Id. 

105. Ensuring the safety and stability of a dam is the focus of the Dam Safety Act.  The means by which multiple owners of a dam coordinate their efforts to ensure that a dam is maintained in a safe and stable condition is not the Department’s primary focus.  Testimony of Crosby.

106. For example, if one of four fee title owners with equal property ownership determined that the water impoundment is no longer of value and refused to participate in the dam’s repair and maintenance, that lack of maintenance for one quarter of the dam would eventually result in the deterioration of the dam as a whole because the components within the property boundaries of the non-participating fee title owner would fall into disrepair thereby diminishing the integrity of the entire structure.  Testimony of Crosby.

107. The condition of the dams, as described by the Department’s witnesses, was essentially not contested.

Southeast Dam and NOV VTS-3942-DM

108. Russell G. Bellar Lifetime Family Trust; Jeffrey A. and Lori A. Laycock; and S&S Truck Repair, Inc.; are fee title owners of the real property upon which the Southeast Dam was constructed. Testimony of Eggen and Jeffrey A. Laycock, Exhibits G & M.

109. There is no evidence in the record to support a conclusion that Miami County holds title to, bears any responsibility or obligation for, or possesses any jurisdiction or other legal interest in the Grand Avenue right of way that traverses the Southeast Dam. 

110. The undisputed elevation of the top of the Southeast Dam is 705 feet.

111. The Department estimates the elevation of the natural stream bed beneath the center line of the Southeast Dam to be 681 feet.  Testimony of Miller, Exhibit P.

112. Jeffrey A. Laycock (Laycock) made deliveries to Bellar during the period the dams were being constructed and is familiar with the location of two cement stave silos which had the tops removed in order to be used as the foundation for constructing two gazeboes that now exist within the water impounded by the Southwest Dam.  Testimony of Laycock, Exhibits C (8), and T (3).  The silos, which are constructed on concrete foundations located very near the base of the original valley, were originally part of a farm that operated in the valley.  Id.  In a few places the concrete blocks are missing from the sides of the silos beneath the water such that Laycock has entered one of the silos and swam down to the concrete base.  Testimony of Laycock.

113. Laycock used a plumb bob device to,

… measure how far it was down to the bottom of the silo; measure how far it was on the inside of the silo in case she talks about silt…if you measure from the water to the bottom of the cement in the silo, it’s 16 feet.  Then you go over to the water’s edge, go up three feet and you’re at the exact top of our spillway, which makes a total of 19 feet, that’s seven feet different than what the [Department] is saying that they are. 

Testimony of Laycock.  While Laycock discussed having taken a measurement from outside the silo, he confirmed through subsequent testimony that the measurement was taken inside the silo where no sediment has been able to accumulate and no vegetation exists.  Laycock confirmed that his measurements were taken only to the bottom of the inside of the silo.

114. Laycock’s method of measurement is prone to two areas of inaccuracy.

a. The thickness of the silos’ concrete foundations are not known.  While Laycock’s measurement, taken from inside the silo, eliminates the possibility for inaccurate results due to sediment, vegetation or other obstruction, the measurement establishes only the distance from the water’s surface to the top surface of the silos’ concrete foundation.  The measurement is inaccurate by failing to include the thickness of the foundation into the dam height calculation. 

b. By Laycock’s testimony, the silo is situated “very near” the natural streambed.  This means that the silos are not located in the natural streambed.  Regardless how near the foundation of the silo is to the lowest point of the natural streambed laterally, Laycock failed to consider in any way the vertical distance between the lowest point of the streambed and the surface of the silos’ foundations.

115. The Department estimates the Southeast Dam to be 24 feet in height[14] based upon the elevation at the top of the dam.

116. In 2012, the Department’s inspection identified a “substantial depression on the crest of the embankment” within the road right-of-way that by 2014 had become deeper and was rutted allowing for standing water.  Exhibits R, S & T (6).  The cause of the depression could be related to improper compaction of earthen material in that area or it could be attributed to water seepage beneath that location that has allowed erosional forces to scour soil from that location.  Testimony of Crosby. 

117. In 2012 it was concluded that “concrete waste” from concrete trucks was being dumped near the toe of the Southeast Dam to decrease erosion that is actively occurring on the downstream face. Exhibit R, S & T (9).  Evidence of past erosion is apparent in this area near the toe of the downstream slope of the dam.  Exhibit T(8 & 9)

118. In 2012, sizeable trees were growing along the side of the concrete slab on grade spillway the root systems of which are capable of cracking and breaking concrete.  Exhibit T (4), Testimony of Crosby.  In 2014, despite evidence of some vegetation clearing in the immediate area of the spillway, a crack in the concrete is evident.  Exhibit T (5).  This crack presents a point at which water seepage will allow erosion of the embankment thereby compromising the integrity of the spillway.  Testimony of Crosby.  Sizeable trees are also apparent on the downstream slope of the Southeast Dam.  Exhibit T (9).

[VOLUME 15, PAGE 25]

119. By 2014, the overgrowth of vegetation on the slopes of the Southeast Dam prevented safe inspection of the downstream slope. Exhibit R, S & T (1, 2, 8 & 10).

120. Neither Miami County, nor the Hidden Hills Petitioners offered evidence contrary to the Department’s conclusion that the Southeast Dam was not properly designed and has not been maintained in “the state of repair and operating condition required by the exercise of prudence, due regard for life and property, and the application of sound and accepted technical principles.”   Exhibit G.

121. It is concluded that the Southeast Dam is in a state of progressive failure, also known as component failure, which if not adequately mitigated will result in an uncontrolled breach.

East Central Dam and NOV VTS-3943-DM

122. Leon Huskey; Geoffery and Wendy Langer; Eric and Jodie Marburger; and Thomas and Linda Webster are fee title owners of the real property upon which the East Central Dam was constructed.  Testimony of Eggen & Leon Huskey, Exhibits H & N.

123. Miami County is a municipal corporation and a political subdivision possessing authority and jurisdiction over the El Burn Road right-of-way that traverses the East Central Dam. Testimony of Einselen, Exhibit 3.

124. The undisputed elevation of the top of the East Central Dam is 723 feet.

125. The only evidence in the record estimates the elevation of the natural stream bed beneath the center line of the East Central Dam to be 698 feet.  Testimony of Miller, Exhibit P.

126. The Department calculated the height of the East Central Dam to be 25 feet in height based upon the elevation at the top of the dam.[15] Id.

127. In 2012 and again in 2014, the Department noted that “significant erosion is occurring along the left edge of the concrete spillway chute on the upper portion of the downstream embankment slope.”  Testimony of Crosby, Exhibits R, S, & T (17).  A void, existing under the left retaining wall that will ultimately cause the collapse of that wall, was observed in both 2012 and 2014.  Id.  A void is also apparent in 2014 along the side of the spillway chute.  Testimony of Crosby, Exhibit T (18). 

128. The upstream slope of the dam is eroding and attempts to diminish the erosion by the placement of concrete waste is insufficient.  Exhibit T (11), Testimony of Crosby.  Concrete waste has also been placed on each side of the upstream spillway indicating the possibility that erosion has been occurring in those areas on the crest of the dam. Exhibit T (12), Testimony of Crosby.

129. During the Department’s 2014 inspection, although water levels were not high enough to crest the spillway weir, water was evident in the spillway and on the downstream spillway chute.  Exhibit T (13 & 16), Testimony of Crosby.  This evidences a lack of design integrity as well as a seepage of water beneath the weir and below the entire slab on grade spillway.  Id.  Water seepage beneath the concrete components of the dam will destabilize the earthen dam structure.  Testimony of Crosby.

130. Despite lower than normal water levels at the time of the 2014 inspection, it is apparent that the toe of the East Central Dam is under the water impounded by the Southeast Dam.  Testimony of Crosby, and Smith, Exhibit T (15).  With the toe of the dam obscured from view it is impossible to determine the integrity of the dam or assess whether seepage is occurring.  Testimony of Crosby. 

131. By the fact that the water level is lower than usual, past erosion was evident on the portion of the toe of the East Central Dam that is routinely under water.  Testimony of Crosby, Exhibit T (15). 

132. Vegetation is growing in cracks in the East Central Dam’s spillway chute located on the downstream side of the earthen dam and trees are growing on the downstream slope of the East Central Dam.  Testimony of Crosby, Exhibit T (14 – 17). 

133. Water traversing down the spillway chute seeps into the cracks in the concrete where it will come into contact with the earthen portion of the dam causing erosion and the deterioration of the earthen dam structure beneath the concrete chute.  Testimony of Crosby.  The seepage of water into the concrete chute cracks is evident in Exhibit T (16), where water sufficient to extend across nearly the full width of the chute at the upper portion experiences what appears to be two cracks in the concrete chute and thereafter is of such a minimal amount as to create only a small footprint on the lower portion of the spillway chute.  Id. 

134. Neither Miami County, nor the Hidden Hills Petitioners offered evidence contrary to the Department’s conclusion that the East Central Dam was not properly designed and has not been maintained in “the state of repair and operating condition required by the exercise of prudence, due regard for life and property, and the application of sound and accepted technical principles.”  Exhibit H.

135. It is concluded that the East Central Dam is in a state of progressive failure, also known as component failure, which if not adequately mitigated will result in an uncontrolled breach.

Northeast Dam and NOV VTS-3944-DM

136. Kenneth J. and Sandra E. Janowski; Larry Dean and Sheryl L. West; Francine Benedict, as the Personal Representative of the Estate of Brian A. Olson; and Larry and Rebecca Taylor are fee title owners of the real property upon which the Northeast Dam was constructed. Testimony of Eggen & Larry West, Exhibits I & O.

137. Miami County is a municipal corporation and a political subdivision possessing authority and jurisdiction over the Lakeview Drive right-of-way that traverses the Northeast Dam. Testimony of Einselen, Exhibit 3.

138. The undisputed elevation of the top of the Northeast Dam is 750 feet.

139. The only evidence in the record estimates the elevation of the natural stream bed beneath the center line of the Northeast Dam to be 726 feet.  Testimony of Miller, Exhibit P. 

140. The Northeast Dam is estimated to be 24 feet in height based upon the elevation at the top of the dam.[16] Id.

[VOLUME 15, PAGE 26]

141. Along the crest of the dam beside the juncture of the spillway box with the downstream slope spillway chute wing walls there exists a significant void in the earthen portion of the Northeast Dam.  Testimony of Crosby, Exhibits S R, S, & T (22 & 23).  Between 2012 and 2014 the void had increased in size and continuous water infiltration will exponentially accelerate the erosion of the earthen portion of the dam.  Testimony of Crosby.

142. The lowest portion of the concrete spillway chute associated with the Northeast Dam is located on the upper one half of the downstream slope of the dam.  Testimony of Crosby, Exhibits R, S, and T (20, 24 & 25).  The lack of a sufficient spillway chute on the downstream slope of the dam has resulted in “a dramatic failure” of the spillway and significant erosion of the earthen embankment of the Northeast Dam.  Id. 

143. Increasing the potential for failure of the Northeast Dam is the existence of sizeable trees growing on the downstream slope.  Id. 

144. The only attempted corrective action evident is the placement of small rock and concrete waste in the eroded embankment of the Northeast Dam.  Exhibit T (25).  This action is not preventing the erosion or the creation of voids in the earthen embankment.  Testimony of Crosby.  

145. The deteriorating condition of the Northeast Dam is particularly significant because of the fact that this dam is the most upstream dam in the eastern series of dams.  Demonstrative Exhibit C.  Therefore, a complete breach of the Northeast Dam would allow the uncontrolled release of water from the uppermost impoundment to cascade downstream creating sudden impacting pressure and force upon the East Central Dam and possibly the Southeast Dam. 

146. Neither Miami County, nor the Hidden Hills Petitioners offered evidence contrary to the Department’s conclusion that the Northeast Dam was not properly designed and has not been maintained in “the state of repair and operating condition required by the exercise of prudence, due regard for life and property, and the application of sound and accepted technical principles.”  Exhibit I.  

147. It is concluded that the Northeast Dam is in a state of progressive failure, also known as component failure, which if not adequately mitigated will result in an uncontrolled breach.

Southwest Dam and NOV VTS-3939

148. The Russell G. Bellar Lifetime Family Trust; Walter B. and Dorothy Woodhams; and Kenneth T. and Rebekah J. Hanson are fee title owners of the real property upon which the Southwest Dam was constructed. Testimony of Eggen & Bellar, Exhibits D & J.

149. Miami County is a municipal corporation and a political subdivision possessing authority and jurisdiction over the Harbour Pointe Road right-of-way that traverses the Southwest Dam.  Testimony of Einselen, Exhibit 3.

150. The undisputed elevation of the top of the Southwest Dam is 714 feet.

151. The only evidence in the record estimates the elevation of the natural stream bed beneath the center line of the Southwest Dam to be 682.9 feet.  Testimony of Miller, Exhibit P. 

152. The Southwest Dam is estimated to be 31.1 feet in height based upon the elevation at the top of the dam.  Id.

153. The Southwest Dam was constructed without a spillway of any kind.  Testimony of Crosby.  This dam has no type of “draw down structure” to provide for the escape of excess water in the event of heavy precipitation.  Id.

154. On the downstream slope of the Southwest Dam exists an eroded gully area for which no remedial action was taken between 2012 and 2014.  Testimony of Crosby, Exhibit T (28 & 29).

155. Seepage is occurring at the base of the Southwest Dam.  Testimony of Crosby, Exhibit T (30).  If a core trench was constructed for the base of the Southwest Dam, as Bellar indicated the occurrence of this seepage evidences the insufficient depth of the core trench or inadequate structural integrity, or both.  Testimony of Crosby.

156. Compounding the Department’s concerns with the condition of the Southwest Dam is the existence of a residential dwelling immediately downstream of the dam.  Id., Exhibit T (31).  The location of the residence enhances concern associated with the entire west series of dams because of the potential for a failure of the Northwest Dam or the West Central Dam to trigger a failure in the Southwest Dam.  Testimony of Smith.

157. Neither Miami County, nor the Hidden Hills Petitioners offered evidence contrary to the Department’s conclusion that the Southwest Dam was not properly designed and has not been maintained in “the state of repair and operating condition required by the exercise of prudence, due regard for life and property, and the application of sound and accepted technical principles.”  Exhibit D.

158. It is concluded that the Southwest Dam is in a state of progressive failure, also known as component failure, which if not adequately mitigated will result in an uncontrolled breach.

West Central Dam and NOV VTS-3940-DM

159. Walter B. and Dorothy Woodhams; Bryan B. and Kyle A. Eckerly; Donald and Sharon Weeks; and Ronald and Lori Potts are fee title owners of the real property upon which the West Central Dam was constructed.  Testimony of Eggen & Sharon Weeks, Exhibits E & K.

160. Miami County is a municipal corporation and a political subdivision possessing authority and jurisdiction over the Harbour Pointe Road right of way that traverses the West Central Dam. Testimony of Einselen, Exhibit 3.

161. The undisputed elevation of the top of the West Central Dam is 744.4 feet. 

162. The only evidence in the record estimates the elevation of the natural stream bed beneath the center line of the West Central Dam to be 711.2 feet.  Testimony of Miller, Exhibit P. 

163. The West Central Dam is estimated to be 33.2 feet in height based upon the top of the dam.  Id.

164. Because the Southwest Dam has no spillway or other control structure the water level is subject to fluctuation.  In 2012 the toe of the West Central Dam was beneath the water impounded by the Southwest Dam.  Testimony of Crosby, Testimony of Smith, Exhibit T (33). 

165. Vegetation is abundant on the slopes of the West Central Dam, inviting burrowing animals and obscuring dam deficiencies from view.  Testimony of Crosby, Exhibit T (34).

166. Water seepage is occurring below the spillway weir in the same manner as was documented to be occurring at the East Central Dam. Testimony of Crosby, Exhibit T (36).

167. A large portion of the spillway chute on the downstream slope of the West Central Dam has collapsed and a tremendous area of earth has eroded away on the downstream slope of the dam.  Testimony of Crosby, Exhibit T (37).  Significant voids beneath the remaining spillway chute were exposed when the lower portion of the spillway chute collapsed.  Id.

168. The spillway chute for the West Central Dam is angled in an unusual manner such that the water traversing the spillway has eroded what appears to be a natural hillside adjacent to the dam.  Testimony of Crosby, Exhibit T (38).

169. Unabated deterioration of the West Central Dam resulted in a sizeable portion of the retaining wall on the downstream spillway chute just beneath the crest of the dam breaking away between 2012 and 2014.  Testimony of Crosby, Exhibit T (compare 38 & 39).

[VOLUME 15, PAGE 27]

170. The condition of the West Central Dam’s spillway chute provides visual evidence of the destructive forces resulting from water seeping into cracks and joints in these slab on grade spillway systems and highlights the need for deliberate and continuous maintenance to ensure structural integrity of the dam. 

171. Neither Miami County, nor the Hidden Hills Petitioners offered evidence contrary to the Department’s conclusion that the West Central Dam was not properly designed and has not been maintained in “the state of repair and operating condition required by the exercise of prudence, due regard for life and property, and the application of sound and accepted technical principles.”  Exhibit E.   

172. It is concluded that the West Central Dam is in a state of progressive failure, also known as component failure, which if not adequately mitigated will result in an uncontrolled breach.

Northwest Dam and NOV VTS-3941-DM

173. Hidden Hills Lakes Preservation, Inc.; Christopher P. Robinson; and Robert W. and Lisa R. Stanfield are fee title owners of the of the real property upon which the Northwest Dam was constructed.  Testimony of Eggen & Larry West, Exhibits F & L.

174. Miami County is a municipal corporation and a political subdivision possessing authority and jurisdiction over the Kim Drive right-of-way that traverses the Northwest Dam. Testimony of Einselen, Exhibit 3.

175. The undisputed elevation of the top of the Northwest Dam is 764.2 feet.

176. The only evidence in the record estimates the elevation of the natural stream bed beneath the center line of the Northwest Dam to be 734.3 feet.  Testimony of Miller, Exhibit P.

177. The Northwest Dam is estimated to be 29.9 feet in height based upon the top of the dam.  Id.

178. The upstream slope of the Northwest Dam has insufficient erosion protection and both the upstream and downstream slopes are overgrown with trees and other woody vegetation.  Testimony of Crosby, Exhibit T (40, 41 & 46). 

179. Asphalt repairs made to the road traversing the Northwest Dam along both sides of the concrete spillway box indicates “substantial settlement” of the embankment. Testimony of Crosby, Exhibit T (43).  Crosby explained that this could result from poor compaction of the earthen portion of the dam or from water seepage removing earthen material from the sides of the spillway box.  Regardless of the cause, it is a “serious concern.”  Testimony of Crosby.

180. The view from the crest looking at the downstream slope of the Northwest Dam reveals that by 2012 one of the spillway chute wing walls had collapsed, which is a “dramatic failure” of a dam component.  Testimony of Crosby, Exhibit T (44).  This failure evidences the lack of design plan and lack of knowledge of earth pressures.  Testimony of Crosby.  Furthermore, the failure exposes the lack of foundational support for the concrete wing wall in the form of footers or tie backs.  Id.  This deteriorated condition was not addressed between 2012 and 2014 and in 2014 it was apparent that the spillway chute wing wall on the opposite side had cracked and soil pressures were already causing its displacement.  Id. and Exhibit T (47). 

181. The collapse of the wing wall exposed soils near the spillway box and spillway chute that will facilitate the penetration of water along the sides and beneath both of these dam components.  Testimony of Crosby, Exhibit T (45).  These erosional forces will dramatically increase the deterioration of the entire dam.  Testimony of Crosby.

182. Neither Miami County, nor the Hidden Hills Petitioners offered evidence contrary to the Department’s conclusion that the Northwest Dam was not properly designed and has not been maintained in “the state of repair and operating condition required by the exercise of prudence, due regard for life and property, and the application of sound and accepted technical principles.”  Exhibit F.

183. It is concluded that the Northwest Dam is in a state of progressive failure, also known as component failure, which if not adequately mitigated will result in an uncontrolled breach.

Issues Specific to Miami County

184. Within the Hidden Hills Subdivision are various platted roads.  Particularly of interest to this proceeding are Lakeview Drive, Harbour Pointe Drive, Kim Drive, and El Burn Road, which are identified on the Plats as being located on 60 foot wide road rights-of-way that traverse the dams.  Id. & Exhibit 2.

185. Some of the Platted Additions to the Hidden Hills Subdivision do identify water impoundments through a faint outline or the insertion of the word “LAKE”, while other Addition Plats do not reference any type of water impoundment.  Testimony Einselen, Exhibit 2.  In any event, the Plats do not identify any dams and do not indicate that the road rights-of-way traverse the dams.  Testimony of Bellar, Testimony of Deeds & Exhibit 2.

186. The road segments at issue in this proceeding are described as follows:

a. Lakeview Drive as it traverses the Northeast Dam in the First Addition to Hidden Hills Subdivision.

b. El Burn Road as it traverses the East Central Dam in the Second Addition to Hidden Hills Subdivision.

c. Kim Drive at it traverses the Northwest Dam in the Fourth Addition to Hidden Hills Subdivision.

d. Harbour Pointe Road at it traverses the West Central Dam in the Fourth Addition to Hidden Hills Subdivision.

e. Harbour Pointe Road as it traverses the Southwest Dam in the Fifth Addition to Hidden Hills Subdivision. 

f. Grand Avenue as it traverses the Southeast Dam is constructed outside the platted Hidden Hills Subdivision.

Testimony of Eggen, Exhibit 2, Demonstrative Exhibit C.  Each of these road segments, except Grand Avenue as it traverses the Southeast Dam, were “accepted into the Miami County Highway System” by resolution of the Miami County Commissioners on December 12, 2005.[17]  Exhibit 3. 

[VOLUME 15, PAGE 28]

187. The road segments accepted as county highways by Miami County “shall be maintained by the Miami County Highway Department and all right-of-way shall be under the jurisdiction and authority of the Miami County Board of Commissioners.”  Id.  The Southwest, West Central, Northwest, Northeast and East Central dams will hereinafter be referred to as the “roadway dams”.

188. According to Bellar, the Lot owners own the land to the center of the platted road rights-of-way.  However, in a seemingly contradictory fashion, Bellar also testified that Miami County owns the road rights-of-way.  Testimony of Bellar.  Bellar’s testimony with respect to the ownership of the rights-of-ways is unconvincing.

189. Kenneth Einselen (Einselen), Miami County Highway Engineer, explained that the formal acceptance of roads into the county highway system is important because the amount of funding received by Miami County from the Indiana Department of Transportation is based, in part, upon the number of miles of roads within Miami County’s highway system.

190. Einselen testified that typically the maintenance of a county road would include the road surface as well as those portions of the right-of-way necessary to drain water from the road surface.  Activities associated with drainage may include constructing or cleaning side ditches or the removal of sand or other debris built up along the sides of the road that prevent proper water flow from the road’s surface.  Testimony of Einselen.

191. In the event of a road washout, Miami County is responsible to identify and eliminate the cause of the washout, which may include placing fill, replacing inadequate soils, installing culverts, or undertaking other activities necessary to provide a sufficient base for the road.  Testimony of Einselen.  With respect to bridge construction for roads, Miami County is responsible for the infrastructure and site preparation beneath the bridge.  Id.

192. Title to the center of a road is held by the adjacent property owner with Miami County possessing essentially an easement over the right-of-way to use as necessary to provide and maintain the road.  Id.

193. By reviewing satellite images on the Miami County’s GIS website it becomes clear that in many instances the outfall structure, the toe of slope and other appurtenant features of the regulated dam are outside the Miami County road rights-of-way.  Testimony of Einselen using Miami County’s GIS System[18], Exhibits J, K, L, M, N, and O.  However, the Miami County GIS system contains a disclaimer that the property boundaries depicted are not exact and are not sufficiently accurate for surveying purposes.  Id.  An actual survey would be necessary to ascertain the actual portions of the roadway dams and their appurtenant structures that are within Miami County’s rights-of-way.  Testimony of Einselen and Laycock.

194. The evidence establishes that the impoundments were created by the dams to provide recreational opportunities for the Hidden Hills Petitioners who own the beds of the impoundments.  Testimony of Bellar.  The impoundments are not open to public use and no commercial activity benefitting Miami County is associated with the impoundments.  Testimony of Bellar, Laycock, Sharon Weeks and Leon Huskey.  It is concluded that Miami County possesses no interest in the water impoundments created by the dams. 

195. Miami County’s only interest in the roadway dams relates to its utilization of the dams as a base for the county highways.

196. Bellar and Larry West testified as to their opinions as to the proper proportioning of the expense associated with the remediation required by the Department’s NOVs.  Each testified that approximately 75% of the expense should be borne by Miami County but neither of these witnesses identified the basis of their opinion[19].  This evidence is of no value. 

197. More appropriately, Laycock testified that surveys would provide more exacting data by which to assess liability, if necessary following the conclusion of this proceeding.   

CONCLUSIONS OF LAW

I.         Burden of Proof

198. “For a notice of violation, the [Department] has the burden of proof.  The burden of persuasion may shift to the alleged violator if the Department establishes a prima facie case. …”  United Minerals v. DNR, 13 CADDNAR 87, (2013), citing Peabody Coal Co. v. Ralston, 578 N.E2d 751, 754, 1991.

199. The Commission’s findings must be based upon substantial and reliable evidence.  Indiana Code § 4-21.5-3-27(d), Indiana Department of Natural Resources v. United Refuse Co., Inc., 615 N.E.2d 100, 103 (Ind. 1993), Island Prop. Owners Ass’n., Inc. v. Clemens and DNR, 12 CADDNAR 56, 58, (2009) citing Citizens Action Coalition of Ind. v. N. Ind. Pub. Serv. Co., 796 N.E.2d 1264 (Ind. App. 2003).

200. The Commission must conduct its proceedings de novo.  United Refuse at 104.

201. With respect to the burden of proof in this proceeding, Indiana Code § 14-21.5-3-14(c) was discussed in Peabody, as follows:

Like defendants in a criminal proceeding, those charged with violations of DNR's regulations are often facing punitive sanctions such as fines. Similar to the rationale for affixing the ultimate burden of proof on the state in criminal matters, it would be a fundamentally unfair procedure to shift the burden of persuasion to one charged with a violation to prove his innocence. The burden of production may shift to the alleged violator when the agency pursuing sanctions for the violation has demonstrated a prima facie case of violation, but the ultimate burden of persuasion may never so shift.

The plain wording of I.C. § 4–21.5–3–14(c) supports this interpretation.

at 754.

II.        Retroactive Application of Laws

202. At the present time, Indiana Code §§ 14-27-7.5 et. seq., which became effective on July 1, 2002, governs the regulation of dams.  P.L. 148-2002.

203. The dams were constructed between 1990 and 1996, before the effective date of Indiana Code §§ 14-27-7.5 et. seq. 

204. The Hidden Hills Petitioners and Miami County point out that statutes are generally not to be applied retroactively. 

[VOLUME 15, PAGE 29]

205. It is correct that;

The general rule of statutory construction is that unless there are strong and compelling reasons, statutes will not be applied retroactively. Martin v. State, 774 N.E.2d 43, 44 (Ind.2002). Statutes are to be given prospective effect only, unless the legislature unequivocally and unambiguously intended retrospective effect as well. Bd. of Dental Examiners v. Judd, 554 N.E.2d 829, 832 (Ind.Ct.App.1990). There is an exception to this general rule for remedial statutes, that is, statutes intended to cure a defect or mischief that existed in a prior statute. Bourbon Mini–Mart, Inc. v. Gast Fuel & Servs., Inc., 783 N.E.2d 253, 260 (Ind.2003) (citing Martin, 774 N.E.2d at 44). Relying on our statement in Bourbon and Martin that “remedial statutes will be applied retroactively to carry out their legislative purpose unless to do so violates a vested or constitutional guaranty,” (emphasis added).

State v. Pelley, 828 N.E.2d 915, 919 (Ind. 2005).

206. With respect to remedial statutes the Pelley decision elaborates;

Despite language in Bourbon and Martin suggesting otherwise, not all remedial statutes are automatically applied retroactively. It has long been the law in this jurisdiction that although statutes and rules concerning procedural and remedial matters may be made to operate retroactively, it is not the case that they must apply retroactively. State ex rel. Uzelac v. Lake Crim. Ct., 247 Ind. 87, 212 N.E.2d 21, 24 (1965). As we held in Gosnell v. Indiana Soft Water Service, Inc. unless there are strong and compelling reasons, statutes will normally be given prospective application. While statutes addressing merely procedural and remedial matters may be applied retroactively, such application is not required.

* * *

Even under [the] argument that the statute is merely procedural or remedial, retroactive application is the exception, and such laws are normally to be applied prospectively absent strong and compelling reasons.

503 N.E.2d 879, 880 (Ind.1987) (emphasis added) (citations omitted).

Pelley, at 919–20.

207. While Indiana Code §§ 14-27-7.5 et. seq. was not effective between 1990 and 1996 when the dams were constructed, the Department and the Commission nonetheless possessed jurisdiction over dams, including the construction and maintenance of dams, at that time through Indiana Code §§ 13-2-20 et. seq. (formerly Acts 1961), which was in effect until repealed effective July 1, 1995.  P.L. 1-1995, SEC. 91.

208. Indiana Code §§ 13-2-20 et. seq. was essentially recodified as Indiana Code §§ 14-27-7 et. seq., which was effective July 1, 1995.  P.L. 1-1995, SEC. 20.

209. In 2002, through Public Law 148-2002, Indiana Code §§ 14-27-7 et. seq. was amended and Indiana Code §§ 14-27-7.5 et. seq. was added to more directly govern and regulate the construction and maintenance of dams.  (It is noted that all future references to Indiana Code §§ 14-27-7 contained within this order are references to the statutory language in effect between July 1, 1995 and June 30, 2002.)

210. The relevant portions of all these various statutes have been considered.

211. Indiana Code § 14-27-7.5-4 defines an “owner” as,

an individual, a firm, a partnership, a copartnership, a lessee, an association, a corporation, an executor, an administrator, a trustee, the state, an agency of the state, a municipal corporation, a political subdivision of the state, a legal entity, a drainage district, a levee district, a conservancy district, any other district established by law, or any other person who has a right, a title, or an interest in or to the property upon which the structure is located.

The definition is exactly the same in predecessor statute Indiana Code § 14-27-7-1 and is only insignificantly different in Indiana Code § 13-2-20-1(2) (repealed).

212. While the statutes contain drafting, formatting and stylistic differences, in each instance the owners of a dam are required to maintain and repair the structure or the dam and appurtenant works in a “state of repair and operating condition required by” the “exercise of prudence,” “due regard for life or property,” and “the application of sound and accepted engineering principles.”  Compare Indiana Code § 14-27-7.5-7; Indiana Code § 14-27-7-2; and Indiana Code § 13-2-20-2 (repealed).

213. The statutory provisions provide that certain dams are exempt from Departmental regulation.  Controlling until July 1, 1995 was Indiana Code § 13-2-20-4, which states:

Sec. 4. …

Provided: (1) that all dams built for the sole purpose of erosion control, watering livestock, recreation or providing a haven or refuge for fish or wildlife, having a drainage area above the dam of not more than one square mile, not exceeding twenty (20) feet in height from the natural streambed to spillway level and impounding not more than one hundred (100) acre-feet of water … shall be exempt from the provisions of this chapter.

In a similar manner, effective from July 1, 1995 until July 1, 2002, Indiana Code § 14-27-7-4(c) specified as follows:

Sec. 4. …

(c) This chapter does not apply to the following:

(1)  A dam that meets the following conditions:

(A) Is built for the sole purpose of erosion control, watering livestock, recreation, or providing a haven or refuge for fish and wildlife.

(B) Has a drainage area above the dam of not more than one (1) square mile.

(C) Does not exceed twenty (20) feet in height from the natural streambed to spillway level.

(D) Does not impound more than one hundred (100) acre-feet of water.

Similarly, effective on July 1, 2002 was Indiana Code § 14-27-7.5-1, which specifies:

Sec. 1. This chapter does not apply to the following:

(1) A structure that meets the following conditions:

(A) Is built for the sole purpose of erosion control, watering livestock, recreation, or providing a haven or refuge for fish or wildlife.

(B) Has a drainage area above the dam of not more than one (1) square mile.

(C) Does not exceed twenty (20) feet in height.

(D) Does not impound a volume of more than one hundred (100) acre-feet of water.

(Emphasis added).[20]

214. On July 1, 2002 the means by which the height of a dam is calculated did change.  Compare Indiana Code § 13-2-20-4 and Indiana Code § 14-27-7-4(c)(1)(C), to Indiana Code § 14-27-7.5-3.

215. Under Indiana Code § 14-27-7.5-3, the “height” of a dam is defined to be the distance “measured from the lowest point in the natural streambed or watercourse under the centerline of the structure to the top of the structure,” whereas before July 1, 2002 the height of a dam was the distance measured “from the natural streambed to the spillway level.”  Id.

[VOLUME 15, PAGE 30]

216. Indiana Code § 13-2-20-4 (previously Acts 1961 c.84, s. 4, repealed) authorized the Department as follows:

Sec. 4. …

If the department finds that any such structure or appurtenances thereto is not sufficiently strong, or is not maintained in good and sufficient state of repair and/or operating condition, is unsafe and dangerous to life or property, the department shall issue and order directing the owner or owners of such structures and appurtenances to make or cause to be made, at his or their expense, such maintenance, alteration, repair, reconstruction, change in construction or location, or removal as may be deemed reasonable and necessary by the department within a time to be limited by the order and it shall thereupon become the duty of such owner of owners to comply with the provisions of such order; Provided: That the minimum time for compliance with the terms of such order shall not be less than ninety (90) days from the date of issuance thereof, except in the case of extreme danger to the safety of life or property, as provided in section 5 of this chapter.

Similarly, between July 1, 1995 and July 1, 2002, Indiana Code § 14-27-7-5 stated;

Sec. 5.  (a) If the department finds that a structure or appurtenance is:

(1) not sufficiently strong;

(2) not maintained in a good and sufficient state of repair or operating condition; or

(3) unsafe and dangerous to life or property;

The department shall issue an order directing the owner of the structure and appurtenance to make or cause to be made, at the owner’s expense, the maintenance, alteration, repair, reconstruction, change in construction or location, or removal that the department considers reasonable and necessary.

(b) The department shall limit in the order the time for compliance with the order.  However, the minimum time for compliance may not be less than ninety (90) days from the date of issuance of the order, unless there is extreme danger to the safety of life or property as provided in section 6 of this chapter.

(c) The owner shall comply with the order.

 In a much similar manner, since July 1, 2002, Indiana Code § 14-27-7.5-11 has provided;

Sec. 11.  If the department finds that a structure is:

(1) not sufficiently strong;

(2) not maintained in a good and sufficient state of repair or operating condition;

(3) not designed to remain safe during infrequent loading events; or

(4) unsafe and dangerous to life and property;

the department may issue a notice of violation under IC 14-25.5-2[21].

The time within which an owner is required to comply with a notice of violation issued in accordance with Indiana Code § 14-27-7.5-11 and Indiana Code § 14-25.5-2 is no longer set by statute but the Department retained a similar authority to “immediately take the measures that are essential to provide emergency protection to life and property…”  See Indiana Code § 14-27-7.5-12.

217. The primary difference between Indiana Code § 14-27-7.5-11, Indiana Code § 14-27-7-5 and Indiana Code § 13-2-20-4 is the specification contained at Indiana Code § 14-27-7.5-11(4), which expressly authorizes the issuance of a notice of violation upon the Department’s determination that a structure is “not designed to remain safe during infrequent loading events.”  This is not a matter at issue in the instant proceeding.

218. While certain provisions of Indiana Code §§ 14-27-7.5 et. seq. may impose new or different requirements upon dam owners or may have altered the manner in which the Department’s inspection and regulation of dams is carried out, the portions of Indiana Code §§ 14-27-7.5 relevant to this proceeding are not significantly different from the regulatory control granted to the Department and the Commission through the equivalent portions of predecessor statutes that were clearly in effect between 1990 and 1996 when the dams were constructed.

219. The Department and the Commission have routinely exercised regulatory control over dams before the enactment of Indiana Code §§ 14-27-7.5.  See DNR V. Taylor, et ux., 1 CADDNAR 14 (1978); Department of Natural Resources v. Bardonner, 5 CADDNAR 211 (1991); DNR v. Weber, 1 CADDNAR 6, (1978); DNR v. Turner, et al., 1 CADDNAR 17 (1978).  The Indiana Court of Appeals in 1981 recognized this authority stating,

Prior to a discussion of the specific merits of each of the two issues presented by the Department, a review of the powers of the Department is necessary. The Department of Natural Resources, a component of which is the Natural Resources Commission, was created by the legislature in 1965 by Acts 1965, c. 441, s.2 (Ind. Code 14-3-3-2). It inherited the powers and duties of the Indiana Flood Control and Water Resources Commission. Ind. Code 14-3-3-8. Under the Flood Control Act, owners of dams are required to maintain them in such a state of repair as required by the exercise of prudence, due regard being had for life and property and the application of sound and accepted engineering standards. Ind. Code 13-2-20-2. The enforcement of the Act is one of the duties of the Department. It has the right and duty to make rules and set standards. Ind. Code 13-2-20-3. It has a duty to inspect dams, and if it finds that a dam is not safe, it has authority to issue orders directing the owner of the dam to make changes and alterations, or even remove the dam completely. Ind. Code 13-2-20-4.

State, Dept. of Natural Resources v. Taylor, 419 N.E.2d 819, 821–22 (Ind. App., 1981)

220. The Hidden Hills Petitioners’ and Miami County’s claim that the dams are not under the regulatory control of the Department and the Commission because they were constructed before the effective date of Indiana Code §§ 14-27-7.5 is without merit.  Id.

III.      Department Jurisdiction over the Dams

221. Between 1990, when Bellar began construction of the dams, until July 1, 1995, when Indiana Code § 13-2-20-4 was repealed, the statutory language contained the word “and” as a conjunction between the four criteria necessary for a dam to qualify for an exemption from the Department’s regulatory control.   With the recodification at Indiana Code § 14-27-7-4(c), effective July 1, 1995 until July 1, 2002, and continuing from July 1, 2002 to the present under Indiana Code § 14-27-7.5-1, the format and language of the statute was altered but the intent of the statute remains clear that all four of the specified conditions must exist in order for a dam to be exempted from the Department’s regulation.

222. The Department acknowledges that that there is not a drainage area of over one square mile above any of the dams and that no individual dam impounds more than one hundred (100) acre-feet of water by volume.  Furthermore, the Department presented no evidence in opposition to the Hidden Hills Petitioner’s evidence that the dams were constructed solely for the recreational use of the Hidden Hills Petitioners. 

223. The evidence supports the conclusion that the dams meet three of the four exemption criteria.

224. To meet the fourth exemption criteria the dams, or any one of the dams, must be less than 20 feet in height.  The Department maintains that each of the dams is over 20 feet in height while the Hidden Hills Petitioners and Miami County maintain that the Department’s evidence is insufficient to support a conclusion that the dams are, in fact, 20 feet in height.

[VOLUME 15, PAGE 31]

225. A complication in reaching a conclusion regarding the height of the dams comes from the fact that the Department’s evidence establishes the dams’ height based upon the distance between the natural streambed and the top of the structure, as is appropriate under Indiana Code § 14-27-7.5-3, but which may not have been appropriate for dams, such as the ones at issue here, constructed before July 1, 2002, when Indiana Code § 13-2-20-4 and Indiana Code § 14-27-7-4(c)(1)(C), were applicable.

226. “Statutes are to be given prospective effect only, unless the legislature unequivocally and unambiguously intended retrospective effect as well.”  Pelley, supra.  However, where there exists strong and compelling reasons a statute may be granted retroactive application.  Id.  

227. The language of Indiana Code § 14-27-7.5-1 provides no expression of intent that the provision be afforded retroactive application.  However, the intent of Indiana Code §§ 14-27-7.5 is to ensure the structural integrity of dams for the purpose of providing for the safety of lives and property.

228. Remedial statutes “intended to cure a defect or mischief that existed in a prior statute… ‘will be applied retroactively to carry out their legislative purpose unless to do so violates a vested or constitutional guaranty.’” Pelley, supra at 919, citing Bourbon Mini-Mart, Inc. Gast Fuel & Servs., Inc., 783 N.E.2d 253 (Ind. 2003) and Martin v. State, 774 N.E.2d 43 (Ind. 2002).  The goal of Indiana Code §§ 14-27-7.5 being the promotion of dam safety for the protection of lives and property establishes “strong and compelling reasons” to afford it retroactive application.  Pelley, supra at 920.

IV.       Dam Height Calculations

229. To meet the fourth exemption criteria the dams, or any one of the dams, must be less than 20 feet in height from the natural streambed to the top of the structure.  The Department maintains that each of the dams is over 20 feet in height while the Hidden Hills Petitioners and Miami County maintains that the Department’s evidence is insufficient to support a conclusion that the dams are, in fact, 20 feet in height.

230. Miami County and the Hidden Hills Petitioners aver that the actions of Bellar render it impossible for the Department to provide the proof necessary to support the NOVs.  Testimony of Deeds.  To agree with Miami County and the Hidden Hills Petitioners would effectively eliminate the Department’s ability to carry out a significant number of its statutory obligations thereby rewarding individuals for careless an inappropriate destruction of natural resources.

231. One complication remains with respect to determining by substantial evidence the height of each of the dams.  Identifying the elevation of the natural streambed under the dams or under the water impoundments is not possible due to the fact that the elevations were not recorded before Bellar’s construction of the dams and his act of constructing the dams destroyed the natural streambed as it originally existed.

232. While the NOVs at issue in this proceeding do not allege a violation for any failure to obtain a permit to construct the dams, discussion contained within decisions of the Commission considering the issuance of “after-the-fact permits” is instructive here.  In the context of its review of the Department’s issuance of an “after-the-fact permit”, the Commission determined:

“The DNR is not legally prohibited from issuing an after-the-fact license for activities in or along waterways.  At the same time, an applicant must not gain an advantage in the licensure process because natural resources were destroyed and are less obviously ascertainable as a result of the unlicensed activities.”  Shoaff Mullin, and DeVille v. Ft. Wayne Zoological Society and DNR, 8 Caddnar 157 (2000)

T. Lusher, J. v. DNR, 11 CADDNAR 137, 143 (2007) and A. Lusher v. DNR, 11 CADDNAR 124, 131 (2007).  (Emphasis added).  See also, Yoder v. DNR & Bouwkamp, 12 CADDNAR 88 (2009)

233. The Hidden Hills Petitioners and Miami County contested strenuously the method by which the Department identified the elevation of the natural streambed upon which it calculated the heights of the dams.

234. All of the evidence supports the conclusion that Bellar destroyed the natural streambed in the area of the dams between 1990 and 1996 and for this reason the exact elevation of the natural streambed cannot be definitively ascertained.

235. The same rationale applied in Lusher that prevented a permit applicant from gaining an advantage in the licensure process because the natural resource has been destroyed by unlicensed activity, likewise prevents an alleged violator from gaining an advantage in defending against an NOV.  

236. The Hidden Hills Petitioners and Miami County cannot be permitted to succeed in arguing that because one of them destroyed the natural resource the Department can never prove its violation and in this way gain an unfair advantage.

237. In the context of this Department prosecution for regulatory violations, the Department bears the ultimate burden of persuasion.  Peabody at 754.  However, upon establishing its prima facie case, the burden of production shifted to the Hidden Hills Petitioners and Miami County to rebut the Department’s evidence.

238. In this instance, the Department, through evidence that is both logical and reasonable and that is based upon sound data and calculation methodologies, established the estimated elevation of the streambed associated with the dams.

239. In its evidence, the Hidden Hills Petitioners and Miami County presented testimony contesting the accuracy of the Department’s methodology and describing other possible means of identifying the streambed elevation or the dam’s heights. 

240. With the exception of Laycock’s testimony regarding the height of the Southeast Dam, neither the Hidden Hills Petitioners, nor Miami County, presented evidence of the height of the dams or the elevation of the natural streambed based upon any of the methodologies described by their witnesses. 

241. To fulfill their burden of production to rebut the Department’s dam height calculations the Hidden Hills Petitioners and Miami County were obliged to present different height calculations and conclusions in order to refute the Department’s prima facie case by identifying the error of the Department’s conclusions. 

242. The Department acknowledged that its dam height calculations are calculated estimations and while the Hidden Hills Petitioners and Miami County highlighted the potential for error in the Department’s methodology, they failed to produce any evidence that the Department’s estimated dam height determinations are wholly unreliable or in error.

[VOLUME 15, PAGE 32]

243. In fact, with the exception of Laycock’s testimony regarding the height of the Southeast Dam, the Hidden Hills Petitioners and Miami County failed to directly refute any of the Department’s dam height determinations. 

244. The Southwest Dam, having a height of 31.1 feet at the top of the structure is within the regulatory jurisdiction of the Department.

245. The Department determined that the height at the top of the Southeast Dam and the Northeast Dam structures is 24 feet.

246. The Department calculated the East Central Dam to be 25 feet in height at the top of the structure. 

247. The West Central Dam was calculated by the Department to be 33.2 feet in height at the top of the structure.

248. The Northwest Dam was determined by the Department to be 29.9 feet in height at the top of the structure. 

249. By reasonable and substantial evidence it is concluded that the dams are each at least 20 feet in height at the top of the structures and are within the regulatory jurisdiction of the Department in accordance with Indiana Code § 14-27-7.5-1.

V.        Owners of the Regulated Dams

250. On the date of the administrative hearing, the fee title owners of the real property upon which the dams were constructed are as follows:

a. Southeast Dam – Russell G. Bellar Lifetime Family Trust; Jeffrey A. and Lori A. Laycock; and S&S Truck Repair, Inc;

b. East Central Dam - Leon Huskey; Geoffery and Wendy Langer; Eric and Jodie Marburger; and Thomas and Linda Webster;

c. Northeast Dam – Kenneth J. and Sandra E. Janowski; Larry Dean and Sheryl L. West; Francine Benedict, as the Personal Representative of the Estate of Brian A. Olson; and Larry and Rebecca Taylor;

d. Southwest Dam - Russell G. Bellar Lifetime Family Trust; Walter B. and Dorothy Woodhams; and Kenneth T. and Rebekah J. Hanson;

e. West Central Dam - Walter B. and Dorothy Woodhams; Bryan B. and Kyle A. Eckerly; Donald and Sharon Weeks; and Ronald and Lori Potts; and

f. Northwest Dam - Hidden Hills Lakes Preservation, Inc.; Christopher P. Robinson; and Robert W. and Lisa R. Stanfield.

251. With the exception of the Hidden Hills Lakes Preservation, Inc., and the Russell G. Bellar Lifetime Family Trust, each of the fee title owners of the real property upon which the dams were constructed are individuals or natural persons[22].

252. The definition of “owner” expressly includes individuals and natural persons. Indiana Code § 13-2-20-1(2) (repealed); Indiana Code § 14-27-7-1, Indiana Code § 14-27-7.5-4.

253.  A corporation, such as the Hidden Hills Lakes Preservation, Inc., is also appropriately identified as an “owner”, as is a trust, such as the Russell G. Bellar Lifetime Family Trust.  Id.

254. Each of the Hidden Hills Petitioners are an “owner” of one or more of the dams within the meaning of the statute.  Id.

255. Miami County, as both a municipal corporation and a political subdivision of the state of Indiana, holding jurisdiction and authority over the road segments that traverse each of the, dams, except the Southeast Dam, is also an “owner” of the East Central Dam, the Northeast Dam, the Southwest Dam, the West Central Dam and the Northwest Dam.  Id.  As noted previously, these dams are referred to as “the roadway dams”.

VI.       Inadequate Dam Maintenance by the Owners

256. The evidence supports the Department’s ultimate conclusion that it is not a question whether the dams will fail but a question of when the dams will fail and the extent to which the failure(s), upon occurrence, will result in property damage or loss of life.  Id.

257. With the exception of testimony that some mowing and brush clearing had occurred between 2014 and the date of the administrative hearing, the deteriorating condition of the dams, as described by Department engineers and dam safety experts, was not contested by either the Hidden Hills Petitioners or Miami County. 

258. Bellar, who constructed the dams and platted the Hidden Hills subdivision, testified that the Hidden Hills Petitioners have conducted little maintenance or repair on the dams since the Lots were sold in the 1990s. 

259. The evidence establishes that the dams are “unsafe and dangerous to life or property” due to the Hidden Hills Petitioners and Miami County having not maintained the dams to be “sufficiently strong” and “in good and sufficient state of repair and/or operating condition” as required by Indiana Code § 14-27-7.5-11, or as applicable at the time the dams were constructed either Indiana Code §§ 13-2-20-4 or 14-27-7.5. 

260. The evidence further establishes that the dams have not been maintained in a “state of repair and operating conditions required by … the exercise of prudence, due regard for life and property [and] the application of sound and accepted technical principles.”  Indiana Code § 14-27-7.5-7, previously Indiana Code § 14-27-7-2; and Indiana Code § 13-2-20-2 (repealed).

VII.     Apportionment of Responsibility

261. (261) With respect to dams, the Department is authorized to

Sec. 8. (a)…vary the standards for permits, maintenance, and operation, giving due consideration to the following:

(A) The type and location of the structure.

(B) The hazards to which the structure is or may be exposed.

(C) The peril to life or property if the structure fails to perform the structure's function.

Indiana Code § 14-27-7.5-8(a)(5), previously Indiana Code § 13-2-20-3 and Indiana Code §14-27-7-3(4).   

262. It is remarkable that the roadway dams are subjected to the uncommon condition that they form the base for roadways.  Testimony of Crosby.  The existence of roads across those dams present additional hazards to the structures associated with such things as heavy equipment engaged in road construction and maintenance activities as well as general attrition of the structure resulting from daily use by vehicular traffic.[23]

263. It is reasonable to conclude that the repair, reconstruction, maintenance and operation of the roadway dams must take these increased structural burdens into account with respect to the structural integrity and durability of the dams.

264. Because the roadway dams form the base for public roads a greater numbers of people may be impacted by a failure than if those dams were used for the sole purpose of retaining water to serve the exclusive recreational interests of the Hidden Hills Petitioners, their guests, and invitees.  Consequently, the potential peril to life and property in the event of a failure of a roadway dam is increased.[24]

[VOLUME 15, PAGE 33]

265. The Department’s experts agree that a dam and its various components cannot be repaired or maintained in segments according to the boundary lines of the multiple fee title owners’ real property.  Testimony of Crosby.  Instead a dam must be constructed, repaired, reconstructed, maintained and operated as a cohesive unit of numerous individual components.  Id. 

266. The owners of each of the dams, must act in a collaborative manner to ensure the proper operation and maintenance or decommissioning of the dam as a whole structure and must each allow access to their private property by others to allow for undertaking these efforts. Required collaboration of this nature by multiple responsible parties is consistent with the application of joint and several liability. 

267. The Indiana Court of Appeals stated in 2015,

Accordingly, the common law defenses remain available to defendants in cases alleging medical malpractice. Id. At common law, joint tortfeasors are two or more persons jointly or severally liable in tort for the same injury to person or property. Flagg v. McCann Corp., 498 N.E.2d 76, 78 (Ind.Ct.App.1986), reh'g denied. Their actions unite to cause a single injury. Marquez v. Mayer, 727 N.E.2d 768, 773–74 (Ind.Ct.App.2000), trans. denied.

When more than one unite in the commission of a wrong, each is responsible for the acts of all, and for the whole damage; also, where separate and independent acts of negligence by different persons concur in perpetrating a single injury, each is fully responsible for the trespass. Courts will not undertake to apportion the damage in such cases among the joint wrongdoers. The injured party has at his election his remedy against all, or any number.

Hill v. Rhinehart, 45 N.E. 3^rd 427 (Ind. Ct. App. 2015) citing Cleveland, Cincinnati, Chicago & St. Louis Railway Co. v. Hilligoss, 171 Ind. 417, 86 N.E. 485, 487 (1908) (citation omitted).

268. A complexity is presented by the fact that Miami County’s interest in the dams is as an easement holder having only a limited interest in portions of the real property held by each of the individual fee title holders.  This is so because,

…to impose joint and several liability … it is imperative that these doctors contributed to the negligent actions which resulted in Hill's injury. In other words, joint and several liability does not impose liability on a defendant who is otherwise not liable.

Hill v. Rhinehart, supra.  (Emphasis added.)

269. Miami County’s interest in the roadway dams is derived from Bellar’s dedication of the 60 foot wide rights-of-way associated with Lakeview Drive, Kim Road, El’ Burn Drive, and Harbour Pointe Drive.  Bellar’s dedication is only a grant for the express purpose stated, which is the construction and maintenance of the roads.  Indiana Code § 36-7-3-3(b).

270. Miami County possesses no fee title to the real property associated with any of the dams.  “The ownership of the fee simple title to a lot abutting a street extends to the center of the street, subject only to the easement of the public for the use of the street.” Abbs v. Town of Syracuse, 655 N.E.2d 114, 115 (Ind. Ct. App.1995).

271. In Rehl v. Billetz the Indiana Court of Appeals stated,

It is well established that easements are limited to the purpose for which they are granted. The owner of an easement, known as the dominant estate, possesses all rights necessarily incident to the enjoyment of the easement. The owner of the property over which the easement passes, known as the servient estate, may use his property in any manner and for any purpose consistent with the enjoyment of the easement, and the dominant estate cannot interfere with the use. All rights necessarily incident to the enjoyment of the easement are possessed by the owner of the dominant estate, and it is the duty of the servient owner to permit the dominant owner to enjoy his easement without interference. The servient owner may not so use his land as to obstruct the easement or interfere with the enjoyment thereof by the owner of the dominant estate. Moreover, the owner of the dominant estate cannot subject the servient estate to extra burdens, any more than the holder of the servient estate can materially impair or unreasonably interfere with the use of the easement.

963 N.E.2d 1, 6–7 (Ind. App., 2012) (Citations omitted)

272. Miami County possess no interest in any portion of the dams outside the platted 60 foot wide rights-of-way.

273. Within the 60 foot wide rights-of-way, Miami County is the dominant tenant while the respective fee title holders are the servient tenants.  Miami County, exercising its rights under the easement created by Bellar’s dedication and its acceptance of the 60 foot rights-of-way is prohibited from subjecting the servient estate to any extra burden beyond what is necessary to construct and maintain a road.  Id.

274. For the reason that,

a. Miami County is prohibited from entering upon any land outside the platted 60 foot rights-of-way associated with the roadway dams the fee title to which is held by individual Hidden Hills Petitioners.  

b. Even within the 60 foot platted rights-of-way crossing the roadway dams, Miami County is prohibited from carrying out any act beyond those necessary to the construction and maintenance of roads.

Miami County cannot interfere with the Hidden Hills Petitioners who are the fee title owners of each respective dam with respect to their efforts to repair, maintain, reconstruct, or decommission the dam as they collaboratively determine most prudent.

275. In other words, just as the Hidden Hills Petitioners may determine to repair, reconstruct or decommission a dam without interference by Miami County, Miami County may construct and maintain a road over a reconstructed dam without interference by the respective Hidden Hills Petitioners.  Alternatively, Miami County may be required to construct a bridge over a ravine resulting from the collaborative decision by respective Hidden Hills Petitioners to decommission a particular dam, which decisions may be made by the respective Hidden Hills Petitioners without interference from Miami County.

276. It is determined that the Hidden Hills Petitioners who are the fee title owners of one or more of the dams are jointly and severally liable for the repair, reconstruction, decommissioning and maintenance of the dam for which they hold fee title.

277. Miami County is only liable for the aspects of a roadway dams’ repair, reconstruction, decommissioning and maintenance reasonably necessary to fulfill its authority and obligation to construct, repair and maintain a public road traversing the roadway dam.  

[VOLUME 15, PAGE 34]

FINAL ORDER

278. The Department’s Notice of Violation identified as VTS-3942-DM relating to the Southeast Dam is affirmed.  The fee title owners of the Southeast Dam, who are Russell G. Bellar Lifetime Family Trust; Jeffrey A. and Lori A. Laycock; and S&S Truck Repair, Inc. (collectively referred to as the Southeast Dam Owners) are jointly and severally liable to take the following actions:

a. The Southeast Dam Owners shall hire a professional engineer experienced in dam design, construction, repair and maintenance.

b. Within thirty (30) days of the date of this order the Southeast Dam Owners shall safely dewater, or lower the level of the water impounded by the Southeast Dam to a safe level as determined by the professional engineer acting in collaboration with the Department.  The dewatering of the impoundment shall be coordinated with appropriate federal, state and local regulatory authorities.

c. The dewatered condition or lowered water level shall be maintained until the Southeast Dam is repaired or reconstructed to the satisfaction of the Department or is permanently decommissioned.

d. Within thirty (30) days of the date of this order, with the assistance of the professional engineer, the Southeast Dam Owners shall create an Incident and Emergency Action Plan (IEAP).  The Southeast Dam Owners shall activate the IEAP immediately upon creation.

e. Within ninety (90) days of the date of this order, the Southeast Dam Owners shall submit to the Department a Dam Safety Inspection Report prepared by the professional engineer in accordance with the Department’s “Indiana Dam Safety Inspection Manual”.

f. Within one hundred twenty (120) days of the date of this order the Southeast Dam Owners shall either:

i. Apply for a permit in accordance with Indiana Code §§ 14-28-1 et. seq. and Indiana Code §§ 14-27-7.5 et. seq to repair or reconstruct the Southeast Dam and spillway to a safe condition; or

ii. Under the direction of the professional engineer, permanently dewater the impoundment created by the Southeast Dam and permanently decommission the Southeast Dam.  This action shall be coordinated with the Department and all appropriate federal, state and local authorities.

279. Each individual Southeast Dam Owner shall allow each other individual Southeast Dam Owner and their agents access to real property owned by them upon which the Southeast Dam is constructed or as necessary to fulfill the requirements set forth in Finding 278.

280. The Department’s Notice of Violation identified as VTS-3944-DM relating to the Northeast Dam is affirmed.  The fee title owners of the Northeast Dam, who are Kenneth J. and Sandra E. Janowski; Larry Dean and Sheryl L. West; Francine Benedict, as the Personal Representative of the Estate of Brian A. Olson; and Larry and Rebecca Taylor (collectively referred to as the Northeast Dam Owners) are jointly and severally liable to take the following actions:

a. The Northeast Dam Owners shall hire a professional engineer experienced in dam design, construction, repair and maintenance.

b. Within thirty (30) days of the date of this order the Northeast Dam Owners shall safely dewater, or lower the level of the water impounded by the Northeast Dam to a safe level as determined by the professional engineer acting in collaboration with the Department.  The dewatering of the impoundment shall be coordinated with appropriate federal, state and local regulatory authorities.

c. The dewatered condition or lowered water level shall be maintained until the Northeast Dam is repaired or reconstructed to the satisfaction of the Department or is permanently decommissioned.

d. Within thirty (30) days of the date of this order, with the assistance of the professional engineer, the Northeast Dam Owners shall create an Incident and Emergency Action Plan (IEAP).  The Northeast Dam Owners shall activate the IEAP immediately upon creation.

e. Within ninety (90) days of the date of this order, the Northeast Dam Owners shall submit to the Department a Dam Safety Inspection Report prepared by the professional engineer in accordance with the Department’s “Indiana Dam Safety Inspection Manual”.

f. Within one hundred twenty (120) days of the date of this order the Northeast Dam Owners shall either:

i. Apply for a permit in accordance with Indiana Code §§ 14-28-1 et. seq. and Indiana Code §§ 14-27-7.5 et. seq to repair or reconstruct the Northeast Dam and spillway to a safe condition; or

ii. Under the direction of the professional engineer, permanently dewater the impoundment created by the Northeast Dam and permanently decommission the Northeast Dam.  This action shall be coordinated with the Department and all appropriate federal, state and local authorities.

281. Each individual Northeast Dam Owner shall allow each other individual Northeast Dam Owner and their agents access to real property owned by them upon which the Northeast Dam is constructed or as necessary to fulfill the requirements set forth in Finding 280.

282. The Department’s Notice of Violation identified as VTS-3939-DM relating to the Southwest Dam is affirmed.  The fee title owners of the Southwest Dam, who are Russell G. Bellar Lifetime Family Trust; Walter B. and Dorothy Woodhams; and Kenneth T. and Rebekah J. Hanson (collectively referred to as the Southwest Dam Owners) are jointly and severally liable to take the following actions:

a. The Southwest Dam Owners shall hire a professional engineer experienced in dam design, construction, repair and maintenance.

b. Within thirty (30) days of the date of this order the Southwest Dam Owners shall safely dewater, or lower the level of the water impounded by the Southwest Dam to a safe level as determined by the professional engineer acting in collaboration with the Department.  The dewatering of the impoundment shall be coordinated with appropriate federal, state and local regulatory authorities.

c. The dewatered condition or lowered water level shall be maintained until the Southwest Dam is repaired or reconstructed to the satisfaction of the Department or is permanently decommissioned.

d. Within thirty (30) days of the date of this order, with the assistance of the professional engineer, the Southwest Dam Owners shall create an Incident and Emergency Action Plan (IEAP).  The Southwest Dam Owners shall activate the IEAP immediately upon creation.

e. Within ninety (90) days of the date of this order, the Southwest Dam Owners shall submit to the Department a Dam Safety Inspection Report prepared by the professional engineer in accordance with the Department’s “Indiana Dam Safety Inspection Manual”.

f. Within one hundred twenty (120) days of the date of this order the Southwest Dam Owners shall either:

i. Apply for a permit in accordance with Indiana Code §§ 14-28-1 et. seq. and Indiana Code §§ 14-27-7.5 et. seq to repair or reconstruct the Southwest Dam and spillway to a safe condition; or

ii. Under the direction of the professional engineer, permanently dewater the impoundment created by the Southwest Dam and permanently decommission the Southwest Dam.  This action shall be coordinated with the Department and all appropriate federal, state and local authorities.

283. Each individual Southwest Dam Owner shall allow each other individual Southwest Dam Owner and their agents access to real property owned by them upon which the Southwest Dam is constructed or as necessary to fulfill the requirements set forth in Finding 282.

284. The Department’s Notice of Violation identified as VTS-3940-DM relating to the West Central Dam is affirmed.  The fee title owners of the West Central Dam, who are Walter B. and Dorothy Woodhams; Bryan B. and Kyle A. Eckerly; Donald and Sharon Weeks; and Ronald and Lori Potts (collectively referred to as the West Central Dam Owners), are jointly and severally liable to take the following actions:

a. The West Central Dam Owners shall hire a professional engineer experienced in dam design, construction, repair and maintenance.

b. Within thirty (30) days of the date of this order the West Central Dam Owners shall safely dewater, or lower the level of the water impounded by the West Central Dam to a safe level as determined by the professional engineer acting in collaboration with the Department.  The dewatering of the impoundment shall be coordinated with appropriate federal, state and local regulatory authorities.

c. The dewatered condition or lowered water level shall be maintained until the West Central Dam is repaired or reconstructed to the satisfaction of the Department or is permanently decommissioned. 

d. Within thirty (30) days of the date of this order, with the assistance of the professional engineer, the West Central Dam Owners shall create an Incident and Emergency Action Plan (IEAP).  The West Central Dam Owners shall activate the IEAP immediately upon creation.

e. Within ninety (90) days of the date of this order, the West Central Dam Owners shall submit to the Department a Dam Safety Inspection Report prepared by the professional engineer in accordance with the Department’s “Indiana Dam Safety Inspection Manual”.

f. Within one hundred twenty (120) days of the date of this order the West Central Dam Owners shall either:

i. Apply for a permit in accordance with Indiana Code §§ 14-28-1 et. seq. and Indiana Code §§ 14-27-7.5 et. seq. to repair or reconstruct the West Central Dam and spillway to a safe condition; or

ii. Under the direction of the professional engineer, permanently dewater the impoundment created by the West Central Dam and permanently decommission the West Central Dam.  This action shall be coordinated with the Department and all appropriate federal, state and local authorities.

285. Each individual West Central Dam Owner shall allow each other individual West Central Dam Owner and their agents access to real property owned by them upon which the West Central Dam is constructed or as necessary to fulfill the requirements set forth in Finding 284. 

286. The Department’s Notice of Violation identified as VTS-3941-DM relating to the Northwest Dam is affirmed.  The fee title owners of the Northwest Dam, who are the Hidden Hills Lakes Preservation, Inc.; Christopher P. Robinson; and Robert W. and Lisa R. Stanfield (collectively referred to as the Northwest Dam Owners), are jointly and severally liable to take the following actions:

a. The Northwest Dam Owners shall hire a professional engineer experienced in dam design, construction, repair and maintenance.

b. Within thirty (30) days of the date of this order the Northwest Dam Owners shall safely dewater, or lower the level of the water impounded by the Northwest Dam to a safe level as determined by the professional engineer acting in collaboration with the Department.  The dewatering of the impoundment shall be coordinated with appropriate federal, state and local regulatory authorities.

c. The dewatered condition or lowered water level shall be maintained until the Northwest Dam is repaired or reconstructed to the satisfaction of the Department or is permanently decommissioned.

d. Within thirty (30) days of the date of this order, with the assistance of the professional engineer, the Northwest Dam Owners shall create an Incident and Emergency Action Plan (IEAP).  The Northwest Dam Owners shall activate the IEAP immediately upon creation.

e. Within ninety (90) days of the date of this order, the Northwest Dam Owners shall submit to the Department a Dam Safety Inspection Report prepared by the professional engineer in accordance with the Department’s “Indiana Dam Safety Inspection Manual”.

f. Within one hundred twenty (120) days of the date of this order the Northwest Dam Owners shall either:

i. Apply for a permit in accordance with Indiana Code §§ 14-28-1 et. seq. and Indiana Code §§ 14-27-7.5 et. seq. to repair or reconstruct the Northwest Dam and spillway to a safe condition; or

ii. Under the direction of the professional engineer, permanently dewater the impoundment created by the Northwest Dam and permanently decommission the Northwest Dam.  This action shall be coordinated with the Department and all appropriate federal, state and local authorities.

[VOLUME 15, PAGE 35]

287. Each individual Northwest Dam Owner shall allow each other individual Northwest Dam Owner and their agents access to real property owned by them upon which the Northwest Dam is constructed or as necessary to fulfill the requirements set forth in Finding 286. 

288. The Department’s Notice of Violation identified as VTS-3943-DM relating to the East Central Dam is affirmed.  The fee title owners of the East Central Dam who are Leon Huskey; Geoffery and Wendy Langer; Eric and Jodie Marburger; and Thomas and Linda Webster (collectively referred to as the East Central Dam Owners) are jointly and severally liable to take the following actions:

a. The East Central Dam Owners shall hire a professional engineer experienced in dam design, construction, repair and maintenance.

b. Within thirty (30) days of the date of this order the East Central Dam Owners shall safely dewater, or lower the level of the water impounded by the East Central Dam to a safe level as determined by the professional engineer acting in collaboration with the Department.  The dewatering of the impoundment shall be coordinated with appropriate federal, state and local regulatory authorities.

c. The dewatered condition or lowered water level shall be maintained until the East Central Dam is repaired or reconstructed to the satisfaction of the Department or is permanently decommissioned.

d. Within thirty (30) days of the date of this order, with the assistance of the professional engineer, the East Central Dam Owners shall create an Incident and Emergency Action Plan (IEAP).  The East Central Dam Owners shall activate the IEAP immediately upon creation.

e. Within ninety (90) days of the date of this order, the East Central Dam Owners shall submit to the Department a Dam Safety Inspection Report prepared by the professional engineer in accordance with the Department’s “Indiana Dam Safety Inspection Manual”.

f. Within one hundred twenty (120) days of the date of this order the East Central Dam Owners shall either:

i. Apply for a permit in accordance with Indiana Code §§ 14-28-1 et. seq. and Indiana Code §§ 14-27-7.5 et. seq. to repair or reconstruct the East Central Dam and spillway to a safe condition; or

ii. Under the direction of the professional engineer, permanently dewater the impoundment created by the East Central Dam and permanently decommission the East Central Dam.  This action shall be coordinated with the Department and all appropriate federal, state and local authorities.

289. Each individual East Central Dam Owner shall allow each other individual East Central Dam Owner and their agents access to real property owned by them upon which the East Central Dam is constructed or as necessary to fulfill the requirements set forth in Finding 288. 

290. Miami County, by accepting into the county highway system the platted rights of way over the roadway dams associated with Lakeview Drive, Kim Road, El’ Burn Drive, and Harbour Point Drive as these roads traverse these dams, became obligated to maintain the roads and possesses jurisdiction over the rights-of-way for this purpose.  Miami County shall:

a. collaborate and cooperate with the Northeast Dam Owners, the Southwest Dam Owners, the West Central Dam Owners, the Northwest Dam Owners and the East Central Dam Owners and the professional engineer employed by them to facilitate those owners’ fulfillment of their respective obligations as set forth in Findings 280, 282, 284, 286, and 288. 

b. facilitate access to the roadway dams, including temporary interference with Miami County’s easement rights, for such purposes as repair, reconstruction, maintenance, operation or decommissioning of a regulated dam.

c. be liable in all respects:

i. for the damage and destruction of road surfaces as well as for repair and reconstruction of road surfaces.

ii. to fulfill all administrative obligations and regulatory compliance responsibilities associated with road construction.

iii. to provide for all public safety matters associated with road construction and demolition, including, but not limited to providing signage or barricades, properly disposing of road construction debris, providing signals or signalmen.  

d. In the event the Northeast Dam Owners, the Southwest Dam Owners, the West Central Dam Owners, the Northwest Dam Owners or the East Central Dam Owners elect to repair or reconstruct their respective dam, Miami County shall be liable for all aspects of the repair and reconstruction of the roadway dam necessitated by the existence of a public road traversing the dam. [25]  This liability extends to but is not limited to:

i. the incorporation into the repair plan or reconstruction design those items required for county highway safety, such as guardrails;

ii. all dam structure enhancements necessary to the stability and longevity of the roadway dam necessitated by the daily use of the dam for public transportation. 

iii. all additional administrative obligations, compliance with regulations, costs or other aspects of the roadway dam repair or reconstruction attributed to the dam’s use as a public road.

---

[1] See “Order Granting Motion to Substitute Claimant” issued June 14, 2017.

[2] See “Report of Telephone Status Conference” dated January 15, 2016.

[3] See Order Granting Petition to Substitute and Remove Claimants, issued February 27, 2017.

[4]See Order Granting Petition to Substitute and Remove Claimants, issued February 27, 2017.

[5]See Order Granting Petition to Substitute and Remove Claimants, issued February 27, 2017.

[6] Findings of fact that may most appropriately be characterized as conclusions of law and conclusions of law that may best be construed as findings of fact shall be so considered

[7] The identification of supporting testimony and/or exhibits existing within the record is non-exclusive.

[8] The spelling of these individual’s names is uncertain.

[9] Bellar correctly indicated that at the time the dams were being constructed, the Department maintained an office on Mexico Road in Peru, Indiana, which was in very close proximity to Hidden Hills Subdivision.  Id.  Bellar testified that Conservation Officers from the Department visited the property while development of the Hidden Hills Subdivision was underway.  None of the Conservation Officers visiting the property between 1990 and 1996 advised Bellar of the need to obtain a permit from the Department or of any obligation to report the dam construction to the Department.  Testimony of Bellar.  There is no evidence that Department staff directly involved with dam safety or construction were among the Department staff who visited Bellar’s construction site.

[10] Mr. Roberts and Mr. Spahr provided notification at the commencement of the Administrative Hearing that any testimony or evidence presented by or through Mr. West was being offered on his own personal behalf; Mr. West was not offering testimony or evidence during the Administrative Hearing on behalf of Miami County.

[11] Mr. Roberts objected to this testimony on the grounds that West, alone, did not have authority to make promises on behalf of the County.  The ALJ overruled the objection with the stated understanding that the Commission’s authority in this matter does not include the ability to determine whether West’s promises or statements to Department officials are binding upon Miami County.  

[12] The Administrative Law Judge presents excerpts of testimony as quotes with the understanding and belief that it is an accurate transcription of the record.  Should an actual transcript reveal inaccuracies the actual transcript shall control.

[13] Because Rod Neese was not an employee of the Department at the time of the Administrative Hearing and was not available to testify, both the Hidden Hills Petitioners as well as Miami County objected to Exhibit P as hearsay.  The ALJ determined that while Exhibit P would constitute hearsay, a proper foundation was presented to admit Exhibit P under the business record exception to the Hearsay Rule.  Indiana Rules of Evidence, Rule 803(6).  

[14] It is noted that within Exhibit P the Southeast Dam is reported to be both 24 feet and 26.2 feet high.  The supporting data contained within Exhibit P supports the determination that the dam is 24 feet high.  Compare Exhibit P, pgs. 3 & 14.

[15] It is noted that within Exhibit P the East Central Dam is reported to be both 25 feet and 26.6 feet high.  The supporting data contained within Exhibit P supports the determination that the dam is 25 feet high.  Compare Exhibit P, pgs. 3 & 14.

[16] It is noted that within Exhibit P the Northeast Dam is reported to be both 24 feet and 24.2 feet high.  The supporting data contained within Exhibit P supports the determination that the dam is 24 feet high. Compare Exhibit P pgs. 3 & 14.

[17] That Miami County accepted these roads into the county highway system without knowledge that they traversed dams, as Miami County intimated, is not a necessary subject for consideration within the context of this proceeding.

[18] The website visited during the administrative hearing was www.miami-in.egis.39dn.com.

[19] Beller acknowledged that he was “guessing” and neither witness cited measurements, square footage, comparison of Lot surveys or other material upon which such a calculation was based.  The ALJ, consistent with Indiana Code § 4-21.5-3-25(d) limited the receipt of similar testimony not supported by reasonable calculation from additional witnesses.  

[20] Although not relevant to this proceeding, for completeness it is noted that a dam that is not to be retained as a permanent structure that is regulated under the federal Mine Safety and Health Act of 1977 was also exempted from the Department’s and Commission’s jurisdiction in Indiana Code § 14-27-7.5-1(2), Indiana Code § 14-27-7-4(c)(3).

[21] Indiana Code §§ 14-25.5-2 sets forth the rights, responsibilities and obligations of the Department associated with the identification of violations and the issuance of notices of violation under various Articles of Title 14, including, Indiana Code §§ 14-27-7.5.  Indiana Code § 14-25.5-1-1.

[22] The term “natural person” is used in Indiana Code § 13-2-20-1(2) (repealed) but was changed to the term “individual” in Indiana Code § 14-27-7-1 and Indiana Code § 14-27-7.5-4.

[23] This is also accurate with respect to the Southeast Dam and Northeast Dam despite the lack of Departmental or Commission jurisdiction.

[24] This is also accurate with respect to the Southeast Dam and Northeast Dam despite the lack of Departmental or Commission jurisdiction.

[25] This liability would include all costs over and above what would be necessary if the regulated dam were constructed to impound water for private recreational use without intent for the dam to support a public road.

---