[CITE:
DNR v. Weber, 1 CADDNAR 6, (1978)]
[VOLUME 1, PAGE 6)]
Cause #77-018W
Caption: DNR v. Calvin Weber
Administrative Law Judge: Shanks
Attorneys:Squarcy, DAG;
Weber pro se
Date: January 4, 1978
ORDER
…[S]ubsequent
to this hearing, the Respondent has voluntarily drawn the lake pool down
to an elevation at or about 884.10 feet, MSL, and submitted new plans to the
Division of Water for consideration. In light of this development and
Respondent's continuing cooperation, Respondent...[is]
ordered to cease further impounding of water and to maintain the lake pool at
an elevation not to exceed 884.10 feet, mean sea level, until such time as the
Natural Resources Commission approves the construction of the dam pursuant to
IC 13-2-22-13.
FINDINGS OF FACT
1. IC 13-2-22-13 provides: "Any person desiring to erect, make, use or maintain, suffer or permit, a structure, obstruction, deposit or excavation to be erected, made, used or maintained in or on any floodway shall first file a verified written application with the commission, setting forth the material facts together with plans and specifications for such structure, obstruction, deposit or excavation, and such person must receive the written authorization of the commission therefore prior to construction. The commission shall issue an order of authorization if in the opinion of the commission such structure, obstruction, deposit or excavation will not adversely affect the efficiency of, or will not unduly restrict the capacity of the floodway, or will not constitute an unreasonable hazard to the safety of life or property, or will not result in unreasonably detrimental effects upon fish, wildlife and botanical resources."
2. IC 13-2-20-4 provides: "The Indiana flood control and water resources commission (natural resources commission) is hereby authorized and directed to make an engineering inspection of all dams, levees, dikes, and floodwalls and appurtenant works not less often than once in each calendar year and at such more frequent intervals as the exigencies of the case may require, or upon the written request of any affected person or agency, and to place in the files of the said commission a report of such inspection;
Provided:
(1) that all dams built for the sole purpose of erosion control, watering
livestock, recreation or providing a haven or refuge for not more than one (1)
square mile, not exceeding twenty (20) feet in height from the natural stream
bed to spillway level and impounding not more than one hundred (100) acre-feet
of water,
(2) that all dams constructed for the purpose of hydroelectric power
generation, owned by public service commission of Indiana, and
(3) that all levees, dikes or floodwalls under a single private ownership had
providing protection only to lands or other property under such single private
ownership, shall be exempt from the provisions of this act (13-2-20-1;
13-2-20-8). If said commission shall find that any such structure or
appurtenance thereto is not sufficiently strong, or is not maintained in a good
and sufficient state of repair and/or operating condition, or is unsafe and
dangerous to life or property, the commission shall issue an 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 said commission within a time limited by the
said order and it shall thereupon become the duty of such owner or owners to
comply with the provisions of such order; provided: That the minimum time for
compliance with the term 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 sec. 5
(13-2-20-5). (Acts 1961, ch. 84,
sec. 4, p. 156.)"
3. The dam was constructed by the Respondent, a registered professional engineer, in 1976.
4. The dam is located in a floodway.
5. The dam constitutes a structure, obstruction, or deposit in a floodway.
[VOLUME 1, PAGE 7]
6. The dam affects a drainage area of 320 acres, more or less and impounds a lake 84 acres in size.
7. The construction of the dam required a permit under IC 13-2-22-13.
8. The Respondent did not obtain a permit under IC 13-2-22-13 prior to constructing said dam; therefore, said dam is in violation thereof.
9. The dam has been inspected by Water Division staff and has been found to have an inadequate spillway system.
10. The crown of the dam is at elevation 895.02 feet, mean sea level (MSL).
11. The normal pool of Lake Barbara is 892.10 feet, MSL.
12. One half PMP is calculated to be at 893.7 feet MSL, which would leave only 1.3 feet of freeboard.
13. Full PMP is calculated to be at 895.20, which would overtop the dam by .20 feet.
14. The dam constitutes a threat to life and property and is causing erosion and water to back up on State Road No. 9 upstream from the dam.
15. If the pool of the lake were lowered to elevation at or about 884.00+ feet, MSL, these detrimental effects of the dam would be mitigated.
16. The Respondent submitted an application
(together with plans) for a permit for the said dam on or about June 1, 1977
and on August 9, 1977 was advised that it could not be approved and given a
list of specific deficiencies which must be corrected.