CADDNAR


[CITE: DNR v. David Stevenson, et al., 1 CADDNAR 83 (1986)]

 

[VOLUME 1, PAGE 83]

 

Cause #: 83-149W

Name: DNR v. David Stevenson, et al.
Administrative Law Judge: Lucas  
Attorneys: Habeeb, DAG; Sorenson, Bunch; pro se (Other parties)
Date: March 3, 1986

ORDER

 

The recommended findings of fact and the Administrative Law Judge are approved and adopted as the findings of fact of the Natural Resources Commission. To the extent the Consent Decree entered in this administrative action on October 21, 1985 may affect a right or privilege of Charles T. Schrader or Shirley A. Schrader, they are bound to the terms and conditions of the Consent Decree. Charles T. Schrader and Shirley A. Schrader are ordered, for as long as they maintain a dam on Harrison Creek within Lot 7 or 8 in the Stingley Subdivision, platted as part of section 2 of Burnett's Reserve in township 24 north, range 4 west, Tippecanoe County, Indiana, to at all times maintain at least one of the existing culverts in the is no higher than elevation 514.5 feet mean sea level datum and so that the present dam in good working condition so that the highest point along the invert is no higher than elevation 514.5 feet mean sea level datum. The invert could be placed lower than the elevation of 514.5 feet. Charles T. Schrader and Shirley A. Schrader are ordered not to construct, excavate or fill within the floodway of Harrison Creek or within the floodway of the Wabash River without the prior written approval of the Natural Resources Commission as required by IC 13-2-22. The provisions of this order apply to Charles T. Schrader and Shirley A. Schrader, jointly and individually, as well as to their agents, servants, employees, successors, assigns, and to all persons firms or corporations acting through them and who have notice of the order.

FINDINGS OF FACT

 

1. The provisions of the administrative adjudication (IC 4-22-1) govern this action.

 

2. The Department of Natural Resources (hereinafter the Department) is an "agency" as the term is defined in IC 4-22-1. The Natural Resources Commission (hereinafter the Commission) is the ultimate authority of the Department with respect to the subject matter of this administrative action.

 

3. The Commission has jurisdiction over the subject matter and the parties to this action.

 

4. A hearing was scheduled in this administrative action for November 15, 1985 at 10:00 a.m. in Room 601A State Office Building, Indianapolis, Indiana. The purpose of the hearing was to consider any matter not resolved by a Consent Decree entered in this action by the Commission on October 21, 1985, particularly with reference to the rights and obligations of Charles T. Schrader and Shirley A. Schrader.

 

5. A written notification of the November 15, 1985 hearing was sent to Charles T. Schrader at 6201 Houston Road, West Lafayette, Indiana 47906 by United States Mail, Certified Number P738781618, with return receipt requested. Delivery of the written notification was made upon "C.T. Schrader" on October 11, 1985.

 

6. A written notification of the November 15, 1985 hearing was sent to Shirley A. Schrader at 6201 Houston Road, West Lafayette, Indiana 47906 by United States Mail, Certified Number P738781619, with return receipt requested. Delivery of the written notification was made upon "C.T. Schrader" on October 11, 1985.

 

7. In a telephone conversation between Mary Ann Habeeb, Deputy Attorney General, and Counsel for the Department in this administrative action, and Shirley A. Schrader, the hearing of November 15, 1985 was confirmed prior to the hearing date.

 

8. Neither Charles T. Schrader nor Shirley T. Schrader (hereinafter the Schraders) appeared for the hearing on November 15, 1985. Other than the Department, no other party to this administrative action appeared for the hearing.

 

9. In accordance with IC 4-22-1-23, the Department is not required to hold a hearing on the subject of the administrative action set for November 15, 1985. The Department may be granted the relief sought in the absence of a hearing.

 

10. The Department on November 15, 1985 presented evidence to establish a prima facie case in its favor.

 

11. The Schraders are citizens of the State of Indiana, County of Tippecanoe. They own real estate along Harrison Creek, a tributary of the Wabash River, with the real estate located within township 24 north, range 3 west in Tippecanoe County, Indiana, being more particularly Lots 7 and 8 in Stingley Subdivision.

 

12. The Schraders placed a control structure or dam (hereinafter Schraders' Dam) on Harrison Creek at the location of their real estate.

 

13. Section 13(c) of the Flood Control Act [IC 13-2-22-13 (c)] provides in part that "[a]ny person desiring to:

 

(A) Erect, make, use, or maintain a structure, obstruction, obstruction, deposit or excavation to be erected, made, used, or maintained...in or on any floodway shall first file with the [C]ommission a verified written application for a permit..."

 

14. Schraders' Dam is located in the floodway of Harrison Creek. Schraders' Dam is also located in the floodway of the Wabash River.

 

15. The Schraders have not

 

[VOLUME 1, PAGE 84]

 

filed with the Commission a verified written application for a permit under IC 13-2-22-13(c) with respect to the Schraders' Dam. No permit has been issued to the Schraders by the Commission for the Schraders' Dam.

 

16. The Schrader's Dam was constructed and is being maintained in violation of the Flood Control Act.

 

17. The Schraders' Dam is one of four dams placed on Harrison Creek by neighboring landowners in violation of the Flood Control Act and which have been the subject of this administrative action. In addition, an unlawful cut was placed by a fifth landowner from Harrison Creek to the Wabash River causing the waters of Harrison Creek to bypass, in part or in total, the four dams referenced in this finding of fact and is specifically approved as it may affect the rights and privileges of the Schraders.

 

[18. In review of the archived administrative cause, it cannot be determined whether Finding 18 was omitted (numeration error) from the original document.]

 

19. Moving downstream along Harrison Creek (southwesterly), the Schraders' Dam is the third of the four dams which are at issue in this administrative action. The Schraders' Dam consists of four pipes through an embankment across Harrison Creek, with the pipes having the following elevations mean sea level:

 

(a) one pipe at 514.7 feet on the upstream side and 514.7 feet on the downstream invert;

(b) one pipe at 514.3 feet on the upstream side and 514.5 feet on the downstream invert;

(c) one pipe at 514.9 feet on the upstream side and 514.8 feet on the downstream invert; and

(d) one pipe at 514.1 feet on the upstream side with the downstream elevation indeterminate due to siltation.

 

20. In accordance with IC 13-2-12 (e), the Commission is authorized "to remove or eliminate any structure, obstruction, deposit, or excavation in any floodway which adversely affects the efficiency of or unduly restricts the capacity of the floodway..."

 

21. In light of the Consent Decree referenced in finding of fact 18, the staff of the Division of Water, Department of Natural Resources, did not request removal of the Schraders' Dam, but instead requested as follows: Charles T. Schrader and Shirley A. Schrader, husband and wife, and owners of lots 7 and 8 in Stingley Subdivision, platted as part of section 2 of Burnett's Reserve in township 24 north, range 4 west, Tippecanoe County, Indiana should be ordered, for as long as they desire to maintain the present dam on their property over Harrison Creek, to at all times maintain at least one of the existing culverts in the present dam in good working condition so that the highest point along the invert is no higher than elevation 514.5 feet mean sea level datum and so that the invert could be placed lower than the elevation of 514.5 feet. The Schraders should be ordered to maintain the culverts within the dam to allow the unobstructed flow of the waters of Harrison Creek. The Schraders should be ordered not to construct, excavate or fill within the floodway of Harrison Creek or within the floodway of the Wabash River without the prior written approval of the Natural Resources Commission as required by IC 13-2-11. The provisions of the order would apply to Charles T. Schrader and Shirley A. Schrader, jointly and individually, as well as to their agents, servants, employees, successors, assigns, and to all persons, firms or corporations acting through them.