[CITE:
DNR v. Turner, et al., 1 CADDNAR 17 (1978)]
[VOLUME 1, PAGE 17]
Cause #: 78-017W
Caption: DNR v. Douglas Turner,
et al.
Administrative Law Judge: Finkenbinder
Attorneys: Zlatos, DAG; Turner, pro se
Date: October 27, 1978
ORDER:
[NOTE: THE ORDER ENTERED IN THIS ADMINISTRATIVE ACTION WAS ENFORCED BY AN ORDER OF THE MORGAN CIRCUIT COURT ENTERED ON JUNE 25, 1981 IN NATURAL RESOURCES COMMISSION, ET AL. V. DOUGLAS TURNER AND FRANCIS WHEELER (TOWN OF LAKE, ET AL., THIRD PARTY DEFENDANTS) IN THE CAUSE NUMBER C-79-C-324.]
An order is entered against the
owners of Hart Lake Dam directing that:
(1) Plans and specifications for the necessary repair of the emergency
spillway...be submitted to
the Division of Water...within 90 days;
(2)...Sixty days after said plans...are approved by the Commission, said repairs be initiated...
(3) ...Hart Lake be
lowered to 10 feet below its normal level, said lowered to commence immediately
after issuance of said order.
FINDINGS OF FACT:
1. IC 13-2-20-1(2) states: "Owner or owners' means any natural person, firm, partnership, co-partnership, lessee, association, association, corporation, executor, administrator, trustee, state of Indiana, any agency of the state, municipal corporation, political subdivision of the state of Indiana, legal entity, drainage district, levee district, conservancy district, any other district established by law, or any or all persons who have any right, title or interest in or to the property upon which the dam, levee, dike or floodwall and appurtenant works is located.
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 structure 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 build for the sole purpose of erosion control, watering
livestock, recreation or providing a haven or refuge for fish and 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
services 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 [IC 13-2-20-2; IC
13-2-20-8]. 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 [IC 13-2-20-5].
4. That the Hart Lake Dam is located in the NW 1/2 of Section 16, Township 13 North,
[VOLUME 1, PAGE 18]
Range 1 East, Monroe Township, Morgan County, Indiana.
5. That the Hart Lake Dam is about 35 feet high and has a drainage area of about 1.5 square miles.
6. That staff members of the Department of Natural Resources have inspected the Hart Lake Dam on various occasions.
7. That the emergency spillway for said dam is an open cut channel at the right end of the dam. The upstream section of the spillway channel is grass lined and the downstream section is concrete-lined with vertical retaining walls.
8. That the concrete section of said emergency spillway has collapsed and the spillway channel is badly eroded.
9. That a residence owned by Mrs. Sally Stevenson lies immediately southeast of said emergency spillway.
10. That said erosion of the emergency spillway is within 25 feet of the Stevenson residence.
11. That water flowing through the emergency spillway will further erode the channel and side slopes and could affect the Stevenson residence. 12. That Frances E. Wheeler holds title to the property upon which the Hart Lake Dam is located by virtue of a warranty deed recorded under #6964, Book 259, page 303 in the Morgan County Recorder's Office.
13. That Douglas W. Turner is the contract purchaser of the property upon which the Hart Lake Dam is located by virtue of a land contract recorded under #6507, Book 65, page 259 in the Morgan County Recorder's Office.
14. That the Natural Resources Commission has jurisdiction over the Hart Lake Dam pursuant to IC 12-2-20-4.
15. That the emergency spillway of the Hart
Lake Dam is not being maintained in a good and sufficient state of repair and
operating condition and is unsafe and dangerous to life and property.