ORDER
1. Ken Keeney's well failed in August 1996.
2. The Town of Danville's well, which is a significant ground water withdrawal facility, is the most likely cause of the Keeney well failure.
3. However, since Keeney was not aware of the statute governing emergency regulation of ground water rights, he did not exercise his right to an inspection by the department at the time of well failure.
4. Such inspection occurred about one year after the well failure and at the request of the Town of Danville.
5. IC 14-25-4-9(3) requires the department to determine that a well was working properly at the time it failed before a ground water emergency can be declared.
6. Since the department could not make that determination, it could not make such a declaration as a matter of law.
7. Therefore, the department's Motion for Summary Judgment is granted and Ken Keeney's petition for administrative review is dismissed.
FINDINGS OF FACT
1. On September 22, 1997, Ken Keeney filed a request for administrative review with the Division of Hearings of the Natural Resources Commission (NRC).
2. In his request Keeney asked for a hearing regarding a decision by the Department of Natural Resources (the "department") that a ground water emergency could not be declared to provide Keeney relief from the failure of his well.
3. Tim Rider was assigned as the NRC administrative law judge for this proceeding.
4. Indiana Code (IC) 14-25-4 (the "Statute") is the applicable law in regard to "Emergency Regulation of Ground Water Rights".
5. In addition to the Statute, IC 4-21.5 and 310 IAC 0.6-l apply to this proceeding.
6. The department is an agency as defined in IC 4-21.5-1-3.
7. As defined in IC 4-21.5-1-15, "ultimate authority" means the individual or panel in whom the final authority for an agency is vested.
8. Pursuant to IC 14-25 and IC 14-10-2-3, the NRC is the ultimate authority for this type of proceeding.
9. The material facts of this case are not in dispute.
10. Keeney's well began to fail in August of 1996.
11. Keeney contracted with a plumber to perform repairs.
12. The plumber discovered that due to the lowering of the water table, Keeney's well could not supply quantity of water necessary to support a family dwelling.
13. The plumber further discovered that the well could not be deepened and therefore recommended to Keeney that he order a new well be drilled.
14. The new well was drilled and placed into operation in late August 1996.
15. The old well was left in place because it did supply a small quantity of water which was handy for applications such as washing the car, watering plants, etc. .
16. In June 1997 the old well went completely dry.
17. In late Summer
of 1997 Keeney, in a meeting with Mark Basch of the department's division of water, first
learned that the Statute existed and could have provided him with relief.
18. In an affidavit filed by the department Basch maintains that the Town of Danville installed a new town well in 1995, that the Town of Danville was concerned about Keeney's well failure, and in 1997 asked Basch to inspect the Keeney well in an effort to determine if the failure in question was caused by the new Town of Danville well.
19. Basch maintains that he could not declare a "ground water emergency" because he was not able to establish that the Keeney well was functioning properly at the time it first failed (August 1996).
20. An examination of data collected by Basch and facts presented by Keeney indicate that the Town of Danville well is the most likely reason
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for the Keeney well failure.
21. Keeney's old well pumped at a level of 70 feet below ground and operated satisfactorily until the Town of Danville's new well was installed. The water level in the area is now at least 80 feet below ground.
22. Obviously the Keeney well could not produce much water from a water table that is at least 10 feet lower than the well pump.
CONCLUSIONS OF LAW
1. The department has moved for Summary Judgment in this cause pursuant to IC 4-21.5-3-23 and Indiana Trial Rule 56.
2. Summary judgment can be granted when there are no material facts in dispute and the moving party is entitled to judgment as a matter of law. Templeton v. City of Hammond, 679 N.E.2d 1368, 1370 (Ind. Ct. App. 1997) and Indiana Trial Rule 56(C).
3. The parties have agreed that there are no material facts in dispute.
4. The provisions of IC 14-25-4-9 allow the department, after proper investigation, to declare a "ground water emergency" and require a significant ground water withdrawal facility, such as the Town of Danville well, to compensate a well owner for his well failure.
5. However, for the department to make such a declaration, all provisions of IC 14-25-4-9 must be examined and certified.
6. IC 14-25-4-9(3) requires the department to certify "that the well and the well's equipment were functioning properly at the time of the failure".
7. Since the well failed in August 1996 and plumbing work was performed at that time, the department could not subsequently determine that the well was functioning properly at well failure.
8. Since that requirement of IC 14-25-4-9(3) cannot be established, the department would be precluded from declaring a ground water emergency.
9. Summary judgment is granted the department in this matter.