[CITE: DNR v. Booe, 1
CADDNAR 21 (1979)]
[VOLUME 1, PAGE 21]
Cause #: 79-001W
Name: DNR v. John Booe
Administrative Law
Judge: Lieber
Attorneys: Miller, DAG; Booe,
pro se
Date: April 11, 1979
ORDER
1) The Commission enters an order directing John W. Booe to dewater the lake impounded by said dam and then breach said dam, all within ninety (90) days of the issuance of such order.
2) The staff of the Division of Water inspect said dam periodically and immediately notify the Director of the DNR should the condition of said dam worsen in order that the provisions of IC 13-2-20-5 may be invoked.
3) Should the respondent, John W. Booe, or subsequent owners desire to reconstruct said dam they may receive prior written authorization from the Natural Resources Commission prior to any construction.
FINDINGS OF FACT
1. IC 13-2-22-13 provided, 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 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 affects 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, 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 ofprudence, 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
[VOLUME 1, PAGE 22]
provisions of this act (13-2-20-1 - 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 sec. 5 (13-2-20-5)."
4. That the John W. Booe Dam is located in the NE 1/4, SE 1/4 of Section 23, Township 9 North, Range 3 East, Brown County, Indiana.
5. The John W. Booe Dam is located in the floodway of an unnamed tributary to Gnaw Bone Creek.
6. That the John W. Booe Dam is about 33 feet high, 200 feet long, has a drainage area of about 60 acres and the dam impounds a lake of about 4 acres.
7. There are several houses located downstream of said dam including the residence of the respondent, John W. Booe.
8. The staff members of the Department of Natural Resources have inspected the John W. Booe on several occasions.
9. That the principle and emergency spillway for said dam is an open cut channel at the right end of the dam.
10. That said spillway is inadequate in size to prevent the dam from being over-topped should the "probably maximum precipitation" occur in the watershed.
11. A large portion of the downstream slope of the dam is saturated.
12. There are several areas of seepage on the downstream face of the dam and evidence of leaks along both abutments.
13. That John W. Booe, R.R. #4, Box #358, Nashville, Indiana 47448, holds title to the property upon which said dam is located by virtue of a warranty deed recorded in Volume 98, page 47, in the Brown County Recorder's office.
14. The dam was constructed in the fall of 1977.
15. That no permit or other written authorization has been issued by the Natural Resources Commission for the construction of the John W. Booe Dam.
16. That the Natural Resources Commission has jurisdiction over the John W. Booe Dam pursuant to IC 13-2-22-13 and IC 13-2-20-4.
17. Said dam is not sufficiently strong, and is not maintained in a good and sufficient state of repair.
18. Said dam is unsafe and dangerous to life and property.