[CITE:
DNR V. Edward Pearson, 1 CADDNAR 3 (1977)]
[VOLUME 1, PAGE 3]
Cause #: 77-008W
Capton:
DNR v. Edward Pearson
Administrative Law Judge: Shanks
Attorneys: Rybak, DAG; pro se (Pearson); Lisak
Date: September 22, 1977
ORDER
...[The Commission orders that]
1) Timber Lake be dewatered and the dam breached;
2) that such dewatering and breach not be carried out for a period of 60 days from the date of such order;
3) that during such 60 days any interested party may submit to the Department...an application for a permit to allow construction in a floodway...of the subject dam; and
4) that if
such application be approved..., said order be suspended for...180 days to
allow...repairs.
FINDINGS OF FACT
1. IC 13-2-22-13 provides, 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 in or on any floodway, or to suffer or permit any structure, obstruction, deposit or excavation to be erected, make, 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."
2. IC 13-2-20-2 provides: "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 of prudence, due regard for life or property and the application of sound and accepted engineering principles.
3. IC 13-2-20-4 provides: "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. 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 commission within that 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 (IC 13-2-20-5].
4. That the subject dam constitutes a structure, obstruction or deposit in a floodway.
5. That no permit or other approval was issued by the Department of Natural Resources for such construction.
6. That such construction constitutes a violation of IC 13-2-22-13.
7. That the Department of Natural Resources
[VOLUME 1, PAGE 4]
has inspected the subject dam on numerous occasions.
8. That as a result of such inspections the Department has found that the subject dam:
a) was not properly constructed;
b) is
defective and in need of repair in that:
1) it is slumping and is moving
slowly downstream;
2) has an inadequate spillway system;
3) shows no evidence of having a toe drain system;
4) has evidence of seepage on the downstream side;
c) that unless repairs are made the subject dam will continue to deteriorate;
d) that the subject dam is structurally unsafe and constitutes a threat to life and property downstream.