CADDNAR


[CITE: DNR V. Taylor, et ux., 1 CADDNAR 14 (1978)]

 

[VOLUME 1, PAGE 14]

 

Cause #78-013W

Caption: DNR v. Arthur Taylor, et ux.
Administrative Law Judge: Finkenbinder
Attorneys: Zlatos, DAG; Boswell
Date: 1979

 

[NOTE: Case was affirmed on judicial review on Jan. 23, 1980 Arthur J. Taylor, et ux. v. State of Indiana, DNR in the Montgomery Circuit Court. See also State, DNR v. Taylor (1981), Ind.App.), 419 N.E. 2d 819.]

ORDER:

It is ordered:

1) that Mr. and Mrs. Taylor immediately retain a professional engineer to perform the necessary plans and specifications and whatever additional information is needed (including but limited to a time frame necessary to perform any proposed repairs to the dam) so that the dam will be put in good and sufficient operating condition to fully perform its intended purpose, and submit said plans et cetera to the DNR for the Commission's approval within ninety (90) day of the issuance of the order and determination.

2) that at that time Mr. and Mrs Taylor submit to the Commission an agreement in affidavit form that they will faithfully and fully perform all recommendations for repair and construction within the time frame suggested by said professional engineer, if the Commission should in fact approve the proposals so submitted.

3) that if said professional engineer should not be able to provide the Commission with information, plans, specifications, and studies showing to the Commission's satisfaction that the Taylor Dam can be repaired so that it will no longer be unsafe and dangerous to life and property below the dam or if Mr. and Mrs. Taylor should fail to agree to make those repairs, if approved, or if the Commission should not approve those plans, specifications, studies, et cetera Mr. and Mrs. Taylor shall breach and dewater the subject dam not more than one hundred twenty (120) days from issuance of the original order and determination.

FINDINGS OF FACT:

1. IC 13-2-22-13 provides, in applicable part as follows: "It shall be unlawful to erect, use or maintain in or on any floodway a permanent abode or place of residence, or to erect, make, use or maintain any structure, obstruction, deposit or excavation in or on any floodway, or to suffer or permit any structure, obstruction, deposit or excavation to be erected, made, used or maintained in or on any floodway, which will adversely affect the efficiency of or unduly restrict the capacity of the floodway or which, by virtue of its nature, design, method of construction, state of maintenance or physical condition, will constitute an unreasonable hazard to the safety of life or property, or result in unreasonably detrimental effects upon the fish, wildlife and botanical resources and the same are declared to be and to constitute public nuisances. The Commission shall have the power to commence, maintain and prosecute any appropriate action to enjoin or abate a nuisance, including any of the foregoing nuisances and any other nuisance which adversely effects flood control or the safety of life or property, or is unreasonably detrimental to fish, wildlife and botanical resources. Any person desiring to erect, make, use or maintain, suffer or permit, a structure, obstruction, deposit or excavation to be erected, made, 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."

2. IC 13-2-20-2 states: "The owner or owners of any dam, levee, dike or floodwall and appurtenant works,heretofore or hereafter constructed, shall maintain and keep such structures and appurtenant works in that state of repair and/or operating condition required by the exercise of prudence, due regard for life or property and the application of sound and accepted engineering principles. "

3. IC 13-2-20-4 states: "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 fish or wildlife, having a drainage area above the dam of 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 utilities, and under the jurisdiction of the Public Service Commission of Indiana, and

3) that all levees, dikes or floodwalls under a single private ownership and providing protection only to land 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).

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If the 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 to be 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 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 (13-2-20-5)."

4. IC 13-2-20-7 states: "...(I)t shall be the duty of owner or owners of any dam, levee, dike, or floodwall and appurtenant works to cooperate with said Commission, its agents, engineers, or other employees in the conduct to such engineering inspections, to facilitate access thereto and to furnish upon request such plans, specifications, operating and maintenance data or other information as may be pertinent to such structure and appurtenances."

5. IC 13-2-22-3(12) provides: " 'Floodway' means the channel of a river or stream and those portions of the floodplains adjoining the channel, which are reasonably required to efficiently carry and discharge the floodwater or flood flow of any river or stream."

6. The Taylor Dam is located in the SE 1/4 of the SW 1/4 of Section 5, T14N, R6W, Parke County, Indiana; approximately one mile northeast of Mansfield, Indiana.

7. Arthur J. and Juanita A. Taylor of R.R. #1, Carbon, Indiana, hold title to the property in question as evidenced by Department "Exhibit 4".

8. The subject dam is not located within a floodway as defined by IC 13-2-22-3-(12).

9. The Taylor Dam is approximately forty-seven (47) feet high, has a drainage area of about twenty (20) acres, have a crown at its widest point of approximately twenty (20) feet, the base of the dam from centerline to "downstream" toe is approximately one hundred twenty (120) feet, and the lake impounds approximately four to five acres of water.

10. There are several houses located between one half mile and a mile below the dam; these houses would be subject to inundation in the event that the subject dam would fail.

11. Staff members of the Department of Natural Resources inspected the subject dam on several occasions.

12. Corroborated evidence indicates that construction of the dam began about 1954, and is not yet totally completed.

13. The main spillway of the dam consists of and eight (8) inch plastic pipe which discharges directly onto the face of the dam causing erosion across the face.

14. The emergency spillway of the subject dam consists of one end of the dam being lower than the remainder causing excess water to be discharged over this portion of the dam.

15. Water discharged over that portion of the dam which is denoted as the emergency spillway would run across a portion of the face of the dam causing erosion and instability.

16. The emergency spillway is inadequate to prevent the dam from being overtopped by as much as two (2) feet should the "probable maximum precipitation" occur in the watershed.

17. The one and one-half (1 1/2) inch toe drain which Mr. Taylor contends he constructed in the base of the subject dam at both ends do not clear the "downstream" toe of the dam resulting in instability and saturation of the "downstream" toe area. 18. There is serious slumping on the "downstream" face of the dam; the displacement is approximately seven (7) feet.

19. The slope of the "downstream" face of the dam is approximately 1 1/2 : 1 to 2:1 (horizontal to vertical).

20. A safe slope for a comparable dam is 3:1 (horizontal to vertical).

21. The subject dam was compacted by natural settling, grading, and weight of implements used to grade and deposit the material of which the dam is composed.

22. The subject dam was not compacted using a "sheepsfoot roller" or a "rubber tire roller" as accepted engineering principles and practice would provide.

23. The dam is composed primarily of hickory soil.

24. The Juanita and Arthur J. Taylor Dam is not maintained in a good and sufficient operating condition and is unsafe and dangerous to life and property located below it for the following reasons:

a) the spillway, emergency spillway, and toe drains are not constructed so as to clear the face and toe of the dam thereby causing erosion, slumping and instability.
b) the slope of the "downstream" face of the dam is too steep be accepted engineering principles and practice; this

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inadequacy contributes to the slumping and instability of the dam.
c) the methods used to compact the material of which the dam is constructed are not those methods which accepted engineering principles and practices would dictate in order to attain maximum compaction and integrity of the dam composition.
c) [sic. d)] the Indiana Natural Resources Commission has jurisdiction over the Juanita and Arthur J. Taylor Dam pursuant to IC 13-2-20-4.