ORDER
1. Bryan L. Nelson's well failed in August 1997.
2. The Town of Brownsburg's well, which is a significant ground water withdrawal facility, is the most likely cause of the Nelson well failure (along with pumping by the West Chase Golf Club).
3. However, since Nelson 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 after the well failure was corrected by a contractor.
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 by personal observation, it could not make such a declaration as a matter of law.
7. Therefore, the department's Motion for Summary Judgment is granted and Bryan L. Nelson's petition for administrative review is dismissed.
FINDINGS OF FACT
1. On December 23, 1997, Bryan L. Nelson filed a request for administrative review with the Division of Hearings of the Natural Resources Commission (NRC).
2. In his request Nelson asked for a hearing regarding a decision by the Department of Natural Resources (the "department") that a ground water emergency could not be declared and that compensation for Nelson's well failure could not be required by law.
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 Indiana Administrative Code (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. Nelson's well failed on August 5, 1997. He immediately hired a contractor (Stone) who ascertained that the water level in the area of Nelson's home had dropped below the level of Nelson's pump. The contractor solved Nelson's problem by lowered his pump 20 feet.
11. Stone observed that many homes in the area had experienced the same problem as Nelson and that the problem was caused by the pumping activities of the Town of Brownsburg and the West Chase Golf Club.
12. Stone suggested that Nelson contact Mark Basch of the department's division of water.
13. Nelson contacted Basch who visited the site on August 8, 1998. Through measurement and study of records Basch formed the expert opinion that Nelson's well failure was caused by the Town of Brownsburg and the West Chase Golf Club pumping which has significantly lowered the water level in the area. See Exhibit A (Basch Affidavit) to department's Motion for Summary Judgment.
14. The department could not declare a groundwater emergency because it did not inspect the well prior to the work by the contractor and it is the department's position that the Statute requires a personal observation by the inspector that the well was functioning properly at the time of the failure to produce a normal supply of water. See IC 14-25-4-9. 15. Basch asked the pumping entities previously mentioned to reimburse Nelson for expenses involved in
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lowering his pump. The West Chase Golf Club complied but, for some unstated reason, the Town of Brownsburg refused.
16. An examination of data collected by Basch and uncontroverted facts presented by Nelson indicate that pumping activity by the Town of Brownsburg and the West Chase Golf Club is the most likely cause of the Nelson well failure.
17. Nelson's well had previously pumped at a level of 80 feet below ground and operated satisfactorily until the Town of Brownsburg and the West Chase Golf Club increased pumping activity. The water level in the area is now at least 100 feet below ground.
18. Obviously the Nelson well could not produce water from a water table that was at least 20 feet lower than the well pump. Accordingly, the payment to Stone to lower the pump was a reasonable expenditure under the circumstances.
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 Brownsburg 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 and plumbing work was performed prior to the call to Basch, the department could not subsequently determine, through personal observation, that the well was functioning properly at the time of 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.