[CITE: Hacker v. DNR, City of Huntington, 4
CADDNAR 35 (1987)]
[VOLUME 4, PAGE 35]
Cause #: 86-127W
Caption: Hacker v. DNR, City
of Huntington
Administrative Law Judge: Lucas
Attorneys: Hacker; McInerny, DAG; DeLaney
Date: July 28, 1987
ORDER
The
foregoing Findings of Fact are approved and adopted as the Findings of Fact of
the Natural Resources Commission. David Hacker is denied any relief, and a
final determination is rendered in favor of the City of Huntington.
FINDINGS OF FACT
1. The
Department of Natural Resources (the "Department") is an
"agency" as the term is defined in IC 4-22-1-2.
2.
The Natural Resources Commission ( the "Commission") is the
"ultimate authority" under IC 4-22-1-2.2 for the Department with
respect to entry of an order under IC 13-2-2.5-10(b)(2). [See IC 13-2-2.5-11(b)
and IC 14-3-3-21(a)]
3.
IC 13-2-2.5 is a statutory chapter which, under circumstances specified in the
chapter, provided compensation in favor of the owner of a nonsignificant
ground water facility, where a water well on property
in possession of the owner fails to furnish its normal supply of water or fails
to furnish potable water.
4.
IC 4-22-1 is a statutory chapter also known as the administrative adjudication
act. That chapter governs the procedures applicable to this administrative
action.
5.
This administrative action was initiated upon the timely filing by the City of
Huntington on November 6, 1986 of its Written Objections to Initial
Determination and Findings of Fact of the Natural Resources Commission. Those
written objections south administrative review of an initial determination
entered by the Commission under IC 13-2-2.5-11 (b) of findings of fact and an
order entered to implement IC 13-2-2.5-10 (b) (2).
6.
The Commission has jurisdiction under IC 4-22-1 and IC 13-2-2.5, particularly
IC 13-2-2.5-10 (b) (2), over the subject matter of, and the parties to, this
administrative action.
7.
Pursuant to IC 13-2-2.5, a written complaint was received by the Department on
September 8, 1986 from David F. Hacker, 1857 West 100 South, Huntington, in
Huntington County, Indiana, stating that a well on property in his possession
located in the northwest quarter of section 11, township 27 north, range 9
east, in Lancaster Township, Huntington County, Indiana (the "subject
well") had failed to furnish its normal supply of potable water.
8.
Within 24 hours of receipt of the complaint described in finding 7, an onsite
inspection was made by personnel employed with the Department as required by IC
13-2-2.5-3 (a).
9.
The onsite inspection revealed that the subject well is a "nonsignificant ground water withdrawal facility," as
that phrase is defined under IC 13-2-2.5-1. A nonsignificant
ground water withdrawal facility means the ground water withdrawal facility of a
person that, in the aggregate, has a withdrawal capability of less than 100,000
gallons of water in one day.
10.
The onsite inspection revealed that the subject well had failed to furnish its
normal supply of water.
11.
The onsite inspection revealed that the subject well was constructed before
January 1, 1986.[FOOTNOTE i]
12.
The City of Huntington operates significant ground water withdrawal facilities
for public supply located in the southwest quarter of section 2 and the
southeast quarter of section 3, township 27 north, range 9 east, in Huntington
County, Indiana. These facilities are commonly known as the Homer Carl well
field.
13.
The director of the Department declared, on September 10, 1986, that a ground
water emergency existed under IC 13-2-2.5 in section 11, township 27 north,
range 9 east, in Lancaster Township, Huntington
County, Indiana. The temporary order required that the City of Huntington
provide David Hacker with an immediate temporary provision of an adequate
supply of water at the site of the subject well within 24 hours after service
of the order. As stipulated by the parties, no precedent is established by that
declaration and order with respect to the issues presently before the
Commission for final order or disposition.
14.
David Hacker is a person in possession of the subject well.
15.
"Owner" is defined under IC 13-2-2.5-2 to include a "person in
possession of property as well as the owner of an interest in property."[FOOTNOTE ii]
16.
David Hacker is an owner of the subject well under IC 13-2-2.5.
17.
IC 13-2-2.5-3 authorizes a person to file a written complaint with the
Department and to seek relief under IC 13-2-2.5 where the person is "the
owner of a nonsignificant ground water withdrawal
facility. . ." for a water well on property in
his possession.
18.
David Hacker has standing to file a written complaint and to obtain relief as
provided by IC 13-2-2.5 with respect to the subject well.
19.
The City of Huntington did not provide David Hacker with an immediate temporary
provision of an adequate supply of water following the September 10, 1986
ground water emergency described in finding 13.
[VOLUME 4, PAGE 36]
20.
David Hacker caused the subject well to be restored to its former relative
capability at his own expense by having a submersible pump lowered in the
existing facility an additional 100 feet to a total depth of 173 feet. [See IC
13-2-2.5-10(b)(2)(A)][FOOTNOTE iii]
21.
As a result of the actions described in finding 20, a permanent provision at
the point of use of an alternate supply of potable water is not necessary. [See
IC 13-2-2.5-10(b)(2)(b)]
22.
There is insufficient data to justify a finding that ground water withdrawals
by the City of Huntington are exceeding the recharge capability of the aquifer
system in the area.
23.
Continued ground water withdrawals by the City of Huntington have not been
shown to exceed the recharge capability of the ground water resources of the
area in which the subject well is located as anticipated by IC 13-2-2.5-3(b)(2).
24.
The permanent restriction or rescheduling by the Commission of ground water
withdrawals by the City of Huntington at the Homer Care well field is not
necessary to protect the ground water resource of the area.
25.
The well within the Homer Carl well field which is closest to the subject well
is well 13.
26.
Well 13 of the Homer Carl well field is located
approximately 500 to 600 feet north of the subject well.
27.
The Home Carl well field has a rated capability of 4,000,000 gallons a day.
28.
Every person who has a significant water withdrawal facility is required to
register that facility with the Commission under IC 13-2-6.1. [See particularly
13-2-6.1-7(a)][FOOTNOTE iv]
29.
Other than the Homer Carl well field, the only significant (ground) water
withdrawal facility within the vicinity of the subject well are the Frazanda Golf Course and another well field operated by the
City of Huntington.
30.
The Frazanda Golf Course is located about 1½ miles northeast of the subject well and has rated capability
of approximately 114,000 gallons per day. The other well field operated by the
City of Huntington is located about 3 miles from the subject property.
31.
A cone of depression surrounds every ground water withdrawal facility. A
facility which withdraws a large quantity of water creates a greater cone of
depression than does a facility which withdraws a small quantity of water. The
cone of depression creates some impact upon small quantity of water. The cone
of depression creates some impact upon surrounding water levels.
32.
A cone of depression is deepest at the well site. As the distance from the well
site increases, the cone of depression becomes shallower, until a distance is
reached at which there is no effect caused by the
ground water withdrawal facility.
33.
The subject well is within the cone of depression caused by the Homer Carl well
field.
34.
The subject well is outside the cones of depression created by the Frazanda Golf Course and by the other well field operated
by the City of Huntington. No other facilities are located within the vicinity
which withdraw enough water to create a cone of
depression at the subject well.
35.
Any reduction in the water level at the subject well attributed to another
water withdrawal facility is caused by the Homer Carl well field.
36.
Water well records submitted to the Department by a water well drilling
contractor for two wells completed in the Homer Carl well field in 1978
indicate the static water levels in those wells (distance from ground to water
level) were 31 feet and 43 feet.
37.
The water well records described in finding 36 are reliable indicia of the
actual static water levels present in 1978 at the Homer Carl well field.[FOOTNOTE v]
38.
The Homer Carl well field is in the same vicinity as the subject well. A
reasonable inference is that the static water level at the subject well in 1978
was approximately the same as identified for the Homer Carl well field.
39.
The static water level at the subject well was approximately 31 to 43 feet
below the surface in 1978.
40.
The City of Huntington began to utilize the Homer Carl well field in the latter
part of 1979 or sometime during 1980.
41.
No problems were experienced with the operation of an old well located at the
site of the subject well prior to the development of the Homer Carl well field.
42.
After the Homer Carl well field went into
[VOLUME 4, PAGE 37]
operation, the old well stopped
producing, and the subject well was drilled and completed on June 17, 1981.
43.
A water well record indicates that the well was drilled to a depth of 242 feet
and that the static water well level in the subject well on June 17, 1981 was
67 feet.
44.
The subject well was equipped with a submersible pump placed at a depth of 75
feet.
45.
No problems were experienced by David Hacker with the subject well until
immediately prior to the filing on September 8, 1986 of the written complaint
described in Finding 7.
46.
The static water level in the subject well on September 19, 1986 was 72.5 feet.[FOOTNOTE vi]
47.
There was a lowering of the level of ground water in the area of the subject
well from between 31 and 43 feet below the surface in 1978 to 42.5 feet below
the surface in 1986.
48.
Approximately three to five feet of the lowering of the level of ground water
in the area of the subject well may be attributable to normal seasonal fluctuations.
49.
Any lowering of the level of ground water in the area of the subject well,
other than what is attributable to normal seasonal fluctuations, is directly
attributable to the cone of depression created by the City of Huntington at the
Homer Carl well field.
50.
Between 1978 and 1986, utilization by the City of Huntington of the Homer Carl
well field has lowered the level of ground water at the subject well by at
least 24.5 and 36.5 feet.
51.
The base or starting date for determining whether the lowering of the water
level is substantial is not before the Homer Carl well field was developed
(1978, but rather when the subject well was placed (1981).
52.
IC 13-2-2.5-3(a)(2) requires that the Department of David hacker prove by a
preponderance of the evidence that there has been a "substantial"
lowering of the level of ground water in the area of the subject well.
53.
The Department and David Hacker have not met their burden of proof. There has
been no showing of a substantial lowering of the level of ground water in the
area of the subject well that has resulted in the failure of the well to
furnish its normal supply of water.
54.
On September 9, 1981, David Hacker and Carol Hacker executed a release in favor
of the City of Huntington (hereinafter the "Release")
55.
The substance of the Release is as follows: RELEASE In consideration of the
payment of the sum of $2,913.22, the receipt and sufficiency whereof is
acknowledge, the undersigned releases and discharges the City of Huntington and
the Municipal Water Department of the City of Huntington, and their successors
from all claims, known and unknown, arising out of the operation of the City of
Huntington's wells located on the Homer Carl property.
56.
A "release is an affirmative defense which must be proven by a
preponderance of the evidence by the party seeking its protection. [See,
generally, Indiana Rules of Trail Procedure, Rule 8 (c) and Weenig v. Wood (1976), 169 Ind. App. 413, 349 N.E. 2d 235].
57.
A responding party wishing to assert an affirmative defense in a proceeding
before the Department under IC 4-22-1 must do so in writing at least 15 days
prior to the hearing, unless otherwise ordered by the administrative law judge.
[310 IAC 0.5-1-8(a)]
58.
The Release was raised by the City of Huntington in a timely fashion in this
administrative action and incorporated in the facts stipulated and the issues
presented in the Report of Pre-hearing Conference and Notice of Hearing entered
on December 9, 1986.
59.
A release is a kind of contract by which a party discharges an existing right
or action and differs from a satisfaction. [Landers v. McComb
Window & Door Co., (1969), 145 Ind. App 38, 248 N.E. 2d 358.]
60.
Absent ambiguity the construction of a release is a matter of law. The
interpretation of a release, like any other contract, is determined by the
terms of the particular instrument, considered in light of all the facts and
circumstances. A release which is explicit as to past claims, but silent as to
claims arising in the future, is not unambiguous as a
matter of law as to t hose future events. [Babson Bros. Co. V. Tipstar
Corp. (1983), Ind. App., 446 N.E. 2d 11, 16.]
61.
The Release is silent as to facts and circumstances which might arise after its
entry on September 9, 1981. No reference is made to claims which, in fact or in
law, might arise subsequent to entry of the Release.
62.
The Release is not unambiguous as a matter of law as to claims arising after
September 9, 1981.
63.
The relief provided under IC 13-2-2.5 was not available in Indiana at the time
of entry of the Release.
64.
The City of Huntington was the author of the Release.
65.
An ambiguous document will be constructed against its author. [McMahan Const. Co. V. Wegehoft Bros., Inc. (1976), Inc. App. 354 N.E. 2d
278.]
66.
The Release must properly be constructed so as to provide
[VOLUME 4, PAGE 38]
application only to claims existing in
favor of David Hacker against the City of Huntington on September 9, 1981.
67.
The City of Huntington has not established by a preponderance of the evidence
that the Release acts to void every claim which might arise in favor of David
Hacker under IC 13-2-2.5.
68.
According to the evidence presented in this action, any "substantial"
lowering of the ground water in the area of the subject well occurred before
the Release was entered. The Release is unambiguous as a matter of law as to
events which occurred before its entry.
69.
Although the Release does not preclude David Hacker from initiating a claim
under IC 13-2-2.5, he has waived any claim he might have for lowering of the
level of ground water which was occasioned before entry of the Release.
70.
A final order should be entered in this administrative action to deny any
relief to David Hacker.
FOOTNOTES
i. [See also Finding 42.] In order to avail themselves
of the protections afforded by IC 13-2-2.5, all owners of nonsignificant
ground water withdrawal; facilities constructed after December 31, 1985 must
conform those facilities to guidelines established by the Department for the
construction of wells and the type and setting of pumps for use in those wells.
[IC 13-2-22.5-5 and IC 13-2-2.5-12]. Those guidelines
are set forth as a nonrule policy document at 9
Indiana Register 1242 (Feb. 1, 1986.) Because the subject well was constructed
before January 1, 1986, the guidelines are here inapplicable.
ii. The term "owner" has a technical utilization within IC 13-2-2.5
which is different from the ordinary and usual sense of the word. Where there
is a clearly expressed legislative intention that a word be used in a manner
which is technical or peculiar, that legislative intention prevails over the
ordinary sense of the word for purposes of statutory construction. [See, for
example, Indiana Dept. Of State Revenue,
Ind. Revenue Bd., Ind. Gross Income Tax Division v. Colpaert
Realty Corp. (1952), Ind. App. , 109 N.E. 2d 415.]
iii. That David Hacker would be entitled to reimbursement for reasonable
expenses incurred in restoring the well capacity, if he is otherwise entitled
to relief under IC 13-2-2.5, has not been contested by the City of Huntington.
The election by Hacker to correct the water supply problem is an effort to
mitigate damages which does not negate his right to compensation.
iv. Registration under IC 13-2-6.1 includes surface water withdrawal
facilities, as well as ground water withdrawal facilities, but the concept of
"significant" is the same as what is contained within IC 13-2-2.5. IC
13-2-6.1-1 provides that a "significant water withdrawal facility"
includes a facility which has "the capability of withdrawing more than one
hundred thousand (100,000) gallons of ground water. .
.in one (1) day."
The application of IC 13-2-2.5 is not contingent upon the registration of a
significant (ground) water withdrawal facility under IC 13-2-6.1. The
responsibilities imposed by IC 13-2-2.5 and IC 13-2-6.1 are independent, but
not unrelated. Reference to facilities registered under IC 13-2-6.1 can provide
a useful tool in determining what significant ground water withdrawal
facilities are, in fact, present within the vicinity of a "nonsignificant ground water withdrawal facility."
v. Water well drilling contractors are regulated by the Department in
accordance with IC 35-39-1. As provided in IC 25-39-1-4 (b), each
water well drilling contractor must, within 30 days after the completion
of a well, forward a copy of the record of the well to the Department on
approved forms. Information included in the water well records include the location of the well, depth of the well and the
static water level and performance data of the well. [See IC
25-39-1-4(a).] The water well drilling contractor employed by the City
of Huntington for the two wells within the Homer Carl well field was Ortman Well Drilling, Inc. During cross examination by the
City of Huntington, Mark Basch, an engineering geologist and head of the Water
Rights Section for the Division of Water, was asked whether Ortman
would "regard these documents as somewhat of a nuisance." Basch
responded that "anyone but Ortman probably
would. Ortman is a very
reputable firm. . ."
[VOLUME 4, PAGE 39]
vi. An effort was made by the Division of Water to
measure the static water well level of the subject well on August 28,1986, but
an unidentified obstruction was encountered at 60 feet. A measurement taken on
the same day at another site "across the street" from the subject
well yielded a static water well level of 73 feet, a figure which tends to lend
further support to Finding 46.