Content-Type: text/html 88-213w.v5.html

CADDNAR


[CITE: Kuss, DNR v. Churchill, et. al., 5 CADDNAR 5 (1988)]

[VOLUME 5, PAGE 5]

Cause #: 88-213W
Caption: Kuss, DNR v. Churchill, et. al.
Administrative Law Judge: Lucas
Attorneys: McInerny, DAG; Day, James, Blaney
Date: August 10, 1988

ORDER

1. Each of the Findings of Fact set forth above [below] is incorporated into this Temporary Order.

2. The declaration by the Director is continued with respect to a ground water emergency which exists within the ground water emergency area described in the Findings of Fact.

3. The obligations of the owners of significant ground water withdrawal facilities previously established in these proceedings to provide adequate supplies of potable water to Thomas Daniel Armstrong and Ray Hammond at the sites of their wells within twenty-four (24) hours of service of the respective initiating orders are made continuing obligations.

4. In the absence of a temporary order under IC 13-2-2.5, continued ground water withdrawals from the bedrock aquifer within the ground water emergency area will exceed the recharge capability of the ground water resource in the area. Restriction of pumpage from all significant ground water withdrawal facilities completed in the bedrock aquifer is the only way to prevent irreparable damage to the ground water resource of the area.

5. Pumpage from significant ground water withdrawal facilities completed in the bedrock aquifer is prohibited each week as specified below:

(a) From the hours of 6:00 P.M., EST, FRIDAY to 6:00 A.M., EST, SUNDAY beginning with the week staring Sunday July 10, 1988 from the portion of the ground water emergency area located north of an east-west extension of Jasper County Road 400 North.
(b) From the hours of 6:00 P.M., EST, FRIDAY to 6:00 A.M., MONDAY beginning with the week starting Sunday, July 10, 1988 for the portion of the ground water emergency area located south of an east-west extension of Jasper County Road 400 North.

6. North Newton School Corporation is exempted from the restrictions contained within paragraph 5 of this Temporary Order relative to the operation of facilities on school property required for public health, including those for drinking water and the operation of restrooms, showers and a concession stand.

7. This Temporary Order shall remain in full force and effect until modified or terminated by the Department or by a court upon judicial review, except that this temporary order shall automatically terminate on October 11, 1988 unless extended in accordance with the administrative adjudication act (IC 4-21-5).

8. This Temporary Order constitutes a final agency action of the Department and is subject to judicial review according to IC 4-21.5-5.

FINDINGS OF FACT

1. Within twenty-four (24) hours after the receipt of a written complaint from the owner of a nonsignificant ground water withdrawal facility that a water well in the possession of that person has failed to furnish its normal supply of potable water, the director of the department of natural resources (the "Director") is required to cause an onsight investigation to be made.

2. On July 6, 1988, a written complaint was received by the department of natural resources (the "Department) from Daniel Armstrong, R.R. 1, Box 283, Rensselaer, Jasper County, Indiana stating that a well on property in the possession of Daniel Armstrong located in the northeast quarter of section 3, township 29 north, range 7 west in Newton Township, Jasper County, Indiana (the "Armstrong well") had failed to furnish its normal supply of potable water.

3. On July 12, 1988, a written complaint was received by the Department from Thomas Kuss, R.R. 1, Fair Oaks, Jasper County, Indiana stating that a well on property in the possession of Thomas Kuss and located in the northwest quarter of section 33, township 30 north, range 7 west, in Newton Township, Jasper County, Indiana (the "Kuss well") had failed to furnish its normal supply of potable water.

4. On July 22, 1988 a written complaint was received by the Department from Ray Hammond, R.R. 2, Box 62, Rensselaer, Jasper County, Indiana stating that a well on property in the possession of Ray Hammond and located in the southwest quarter of section 22, township 30 north, range 7 west, in Union Township, Jasper County, Indiana (the "Hammond well") had failed to furnish its normal supply of potable water.

5. Within twenty-four (24) hours after receiving the respective complaints, onsight investigations were made of the Armstrong well, the Kuss well and the Hammond well by personnel employed with the Water Division of the Department which revealed that:

(a) each well is a nonsignficiant ground-water withdrawal facility;
(b) each well was constructed before December 31, 1985;
(c) each well had failed to furnish its normal supply of water;
(d) there had been a substantial lowering of the level of ground water in the area that had resulted in the failure of each well to furnish its normal supply of water;
(e) each well and its equipment were functioning properly at the time of the failure;
(f) each well had failed as a result of the lowering of the ground-water level in the area; and
(g):the lowering of the ground-water was such that it:

(1) exceeded normal seasonal water level fluctuations; and
(2) substantially impaired the continued use of the ground water resource in the area.

6. The Armstrong well, the Kuss well and the Hammond well were each completed into the same Silurian-Devonian carbonate bedrock aquifer system (the "bedrock aquifer").

7. A "significant ground -water withdrawal facility" is defined in IC 13-2-2.5-2 to mean "the ground water withdrawal facility of a person that, in the aggregate from all sources and by all methods, has the capacity of withdrawing one hundred thousand (100,000) gallons of ground water or more in one (1) day."

8. Robert Churchill, David DeKock, Paul DeVries, Paul DeYoung, Donald Fieldhouse, Richard Garnder, George Hamstra, Alvin Hoffman, Don Jarvis, Robert Jarvis, Edward Kingman, Richard Kohlhagen, Albert Mulson, the North Newton School Corporation, Prudential Insurance Company of America, Inc.

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d/b/a Fair Oaks Farms), Tim Schuster, Roger Warne, James Wiers, Robert Wyatt, Ronald Sipkema and Dye Family Farms, Inc. and Liebert Mercier (the "Respondents") maintain significant ground water withdrawal facilities for the withdrawal of water from the bedrock aquifer.

9. The Department continually monitors water wells in Jasper county and Newton County, as well as in other areas of the state of Indiana. Because of substantial ground water problems which have been experienced in the past in Jasper and Newton Counties, there is a substantial network of monitoring wells in the area.

10. In the spring and summer of 1988, water level drawdowns have exceeded what historically have been experienced in Jasper and Newton Counties. For some of the monitoring wells, observation records have been maintained since 1976. Other monitoring wells were established as recently as 1982.

11. Following the completion of onsight inspections described in Finding 5, and after reference to the data secured from monitoring wells within the bedrock aquifer, personnel within the Division of water reasonably believed that the significant ground water withdrawal facilities maintained by the Respondents caused the failure of the Armstrong well, the Kuss well and the Hammond well.

12. Pursuant to IC 13-2-2.5, Water Division personnel communicated that substance of Finding 11 to the Director so that he might, by temporary order, declare a ground water emergency and require the immediate temporary provision at the Armstrong well, the Kuss well and the Hammond well of adequate supplies of potable water.

13. IC 13-2-2.5-3(b)(2) provides that the Director may restrict the quantity of ground water that may be extracted by a significant ground water withdrawal facility when the director declares a ground water emergency if that facility is reasonably believed to have caused the failure of a complainant's well (or complainants' wells) and if continued ground water withdrawals would exceed the recharge capability of the ground water resource of the area.

14. Data concerning the level of ground water within the area of the Armstrong well, the Kuss well and the Hammond well through the middle of July 1988 indicate that the withdrawals of ground water from the bedrock aquifer in an area bound by the Kankakee River on the north, U.S. Highway area bound by the Kankakee River on the north, U.S. Highway 231 on the east, State Road 14 on the south and the Indiana-Illinois state line on the west were exceeding the recharge capability of the bedrock aquifer system.

15. The significant ground water withdrawal facilities of the Respondents are located within the boundaries described in Finding 14.

16. No significant ground water withdrawal facilities are known to exist within the boundaries described in Finding 14, which are located in the bedrock aquifer, other than those of the Respondents.

17. Pursuant to IC 13-2-2.5-6(b)(2), the Director is authorized to restrict the quantity of ground water that can be extracted from the bedrock aquifer by the Respondents within the boundaries described in Finding 14.

18. On July 13, 1988, the Director declared (in administrative cause numbers 88-213W and 88-215W) the area within the boundaries described in Finding 14 to be the site of a ground water emergency (the "ground water emergency area") pursuant to IC 13-2-2.5. That declaration was confirmed by the administrative law judge following a hearing on July 15. The declaration was restated by the Director, through his Deputy Director, on July 20, 1988 (in administrative cause number 88-216W).

19. In the orders described in Finding 18, the Director further found that continued ground water withdrawals from the bedrock aquifer within the ground water emergency area were exceeding the recharge capability of the ground water resource and that the restriction of pumpage by the Respondents was the only way to prevent irreparable damage to the ground water resource of the area.

20. The bedrock aquifer extends beyond the ground water emergency area. Water withdrawals outside the ground water emergency area have some effect upon the bedrock aquifer and upon the Armstrong well, the Kuss well and the Hammond well.

21. State Road 14 was delineated as the southern boundary of the ground water emergency area, because within the region south of State Road 14, irrigation is not practiced regularly. The clay soils present there do not encourage intensive irrigation practices.

22. The Indiana-Illinois boundary was delineated as the western boundary of the ground water emergency area because the state of Indiana and the Department have no jurisdiction in Illinois. IC 13-2-2.5 has application only within the state of Indiana.

23. The Kankakee River was delineated as the northern boundary of the ground water emergency area because the Kankakee River provides recharge at

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several locations to the bedrock aquifer and constitutes a buffer to water level declines.

24. U.S. Highway 231 was delineated as the eastern boundary of the ground water emergency area because most significant ground water withdrawal facilities east of U.S. Highway 231 are located in the sand aquifer rather that the bedrock aquifer.

25. A rational basis exists for the boundaries of the ground water emergency area. Each of the Respondents was properly named in this proceedings. There is no legal requirement that a larger region be included within the ground water emergency area.[FOOTNOTE i]

26. Evidence adduced at hearing supports the determinations by personnel within the Division of Water that withdrawals from the bedrock aquifer are exceeding its recharge capacity.[FOOTNOTE ii] Within particular monitoring wells, annual low water levels are typically achieved after July 15 (although) low water levels occasionally have been recorded in mid-winter). For five (5) monitoring wells located within the bedrock aquifer in the ground water emergency area, record lows had already been achieved by July 15, 1988. Additionally, annual seasonal lows for monitoring wells located within the bedrock aquifer demonstrate a general (albeit irregular) downward trend.[FOOTNOTE iii]

27. All owners of a nonsignficant ground water withdrawal facility who wish to avail themselves of the protections contained in IC 13-2-2.5 must, if the facilities are constructed after December 31, 1985, conform to the Recommended Guidelines of the Department in Information Bulletin No. 3 published at 9 Indiana Register 1242.[FOOTNOTE iv.]

28. No standards are prescribed for nonsignificant ground water withdrawal facilities constructed before December 31, 1985. The owners of nonsignficant ground water withdrawal facilities constructed before that date enjoy the protections contained in IC 13-2-2.5 without reference to particular construction standards.

29. The Anderson well, the Kuss well and the Hammond well were all constructed before December 31, 1985. The owners of these wells are protected by IC 13-2-2.5 without compliance with particular construction standards for ground water withdrawal facilities.

30. Issuance by the Director on July 13, 1988 of the two Temporary Orders to Declare a Ground-Water Emergency with respect to the Kuss well (administrative cause 88-213W) and with respect to the Armstrong well (administrative cause 88-215W) were in all parts proper.

31. On July 15, 1988, the administrative law judge entered a Modification of Temporary Order to Declare a Ground-Water Emergency which consolidated administrative cause 88-213W and 88-215W and which consolidated administrative cause 88-213W and 88-215W and which continued the orders described in Finding 30. The July 15 modification further found that:

(a) The significant ground water withdrawal facilities operated by each of the Respondents contributed to the drawdowns experienced in the bedrock aquifer located within the ground water emergency area.
(b) The immediate impact to the bedrock aquifer was greatest within ground water emergency area south of a line formed by an east-west extension of Jasper County Road 400 North.
(c) The temporary order should be (and was) modified so that the prohibition on pumpage north of the east-west extension of Jasper County Road 400 North was applicable only during the hours of 6:00 P.M., EST, Friday to 6:00 A.M., EST, Sunday beginning with the week starting Sunday, July 10, 1988.[FOOTNTOTE v]

32. On July 20, 1988, a Temporary Order to Declare a Ground-water Emergency was entered on behalf of the Director with respect to the Hammond well (administrative cause number 88-216W). This order essentially mirrored the modified order of July 15, described in Finding 31.

33. Evidence adduced during the hearings held on August 8, 1988 tends to affirm the propriety of the two orders described in Finding 31 and Finding 32.[FOOTNTOTE vi] Some stabilization of water levels within the bedrock aquifer has occurred since the entry of those orders.

34. During the hearings conducted on August 8, 1988, the Respondent, North Newton School Corporation, sought an exemption from the water withdrawal restrictions contained in the orders described Finding 31 and Finding 32.

35. The parties agreed to provide an exemption to North Newton School Corporation relative to the operation of facilities on school property required for public health, including those for drinking water and the operation of restrooms, showers and concession stand.

36. The exemption contained in Finding 35 should be reflected as a modification to the previous orders entered in these proceedings.

37. An exemption should not be extended to North Newton School Corporation from the water withdrawal restrictions contained in the previous orders other than as contained in Finding 35.[FOOTNOTE vii]

38. By letter dated July 28, 1988 and received July 29, 1988, Robert Jarvis sought removal as a respondent on the basis that no pumping has occurred from his ground water withdrawal facility "in this year of 1988, nor the three years prior." The letter is part of the record of these administrative proceedings but has not been offered into evidence.

39. Even assuming for the sake of argument that the letter described in Finding 18 were offered and admitted

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into evidence, as (v,8) sufficient basis is not established for the removal of Robert Jarvis as a Respondent.

40. IC 13-2-2.5 regulates any person who possesses a significant ground water withdrawal facility. A restriction brought according to a ground water emergency is properly directed to each person within the protected area who possesses a significant ground water withdrawal facility, as least where as in the proceedings, continued unrestricted withdrawals have been found to exceed the recharge capability.[FOOTNOTE (sic) vii]

41. Robert Jarvis should continue as a Respondent named in these proceedings.

42. IC 13-2-2.5-3 (a) provides that IC 4-21.5-4 governs the conduct of these proceedings.

43. Pursuant to IC 4-21.5-4-5, an order entered under IC 4-21.5-4 expires on the earliest of the following:

(1) The date set in the order.
(2) The date set by a statute other than in IC 4-21.5.
(3) The elapse of ninety (90) days. During the pendency of any related proceedings under IC 4-21.5-3, the Department may renew the order for successive ninety (90) day periods unless a statute other that IC 4-21.5 prohibits the renewal of the order.

44. No date is established in IC 13-2-2.5 not in any statute other than IC 4-21.5 for the expiration of an order set in these proceedings. No related proceeding under IC 4-21.3-3 is currently pending.

45. Unless subsequently determined otherwise by the Department or a court on judicial review, the order entered here will expire ninety (90) days from initiation of administrative cause number 88-213W. The expiration date is October 11, 1988.

46. IC 4-21.5-4-4 provides in pertinent part that the administrative law judge shall determine whether an order rendered under IC 4-21.5-4 should be voided, terminated, modified, stayed or continued.

47. The orders previously entered in these proceedings should be consolidated, modified and continued as set forth in the Temporary Order immediately below [above].

FOOTNOTES

i. No finding is made whether the Director could have properly included a larger region within the ground water emergency area, although the boundary cannot be extended westward beyond the Indiana-Illinois state line. Neither is a finding made as to whether the Respondents might, by proper motion, seek the addition of a larger region within the ground water emergency area. These matters are not currently in issue.

ii. This process is sometimes described as “mining” the aquifer.

iii. Particular reference is made to Claimant’s Exhibits C and D admitted during the hearing on July 15, 1988. Note that the aquifer designated “Limestone” or “L.S.” on these exhibits corresponds to the bedrock aquifer.

On August 8, 1988, Respondents’ Exhibits 1 and 2 were admitted on the initiative of Robert Churchill. Exhibit 1 contains data for a monitoring well (Newton 14) located in the bedrock aquifer for which records have only been maintained since 1986. Newton 14 does not evidence the marked downward trend applicable to several other monitoring wells in the bedrock aquifer, but neither does Newton 14 demonstrate that mining is not taking place. Considered in the context of other monitoring wells, the evidence still demonstrates that the overall low-water trend of the bedrock aquifer is downward. In addition, the relatively brief record for Newton 14, and even its proximity to the Kankakee River (which may offer some opportunity for recharge), makes its value for determining trends questionable.

Exhibit 2 contains data for a monitoring well (Lake 12) north the Kankakee River in Lake County. Lake 12 is supportive of the proposition that the boundaries for the ground water emergency area were properly drawn. Lake 12 does not refute evidence of bedrock aquifer mining.

iv. IC 13-2-2.5-5, 10 and 12 provide that well construction standards shall be provided by rule, but before rules are adopted, those construction standards must conform to the Recommended Guidelines. Rules have not yet been adopted.

v. Subsections (a) and (b) of Finding 31 reflect distinguishable elements which may be considered within IC 13-2-2.5-5. Subsection (a) bears more directly upon “mining” and damage to the bedrock aquifer as a whole. Within an aquifer system, and subject to its recharge capacity, the removal of water at any site bears upon the resiliency of that system. Subsection (b) relates more directly to the immediate impact that a withdrawal has to a neighboring user of the same aquifer system. Subsections (b) and (c) reflect a perspective that significant water withdrawal facilities located north of County Road 400 North impact the Armstrong well, the Kuss well and the Hammond well in a manner which is less

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dramatic and less immediate.

Since a major thrust of a temporary declaration within IC 13-2-2.5 is to provide emergency relief, some differentiation in the ground-water withdrawals restrictions north and south of County Road 400 North appear justified. Those distinctions may not, however, be justifiable when a permanent solution is sought to balance recharge and withdrawals from the bedrock aquifer. That decision is one for the natural resources commission at another time.

Understandably, that mining is taking place is disputed by some of the Respondents. Statements and testimony by several Respondents suggest either that mining has not occurred, or if it has, that another person caused that result.

Among those testifying were Robert Churchill and Richard H. Wehling. Wehling is an experienced water well driller from Beecher, Illinois who has drilled several wells in Jasper and Newton Counties. He and Churchill confirm that significant water withdrawal facilities operated by Churchill have worked effectively during the past 20 years. This history may speak positively for the water well drilling abilities of Richard Wehling but is not particularly helpful in answering the questions in issue. An impediment can result to a neighbor’s use of the bedrock aquifer in spite of, or perhaps because of, a successful intensive and extensive ground water utilization. If harm comes in the form of aquifer mining, the injury may be more insidious. No drawdowns are more serious at other locations.

Mining is a difficult concept to measure and document. Particularly, where as in the case of the bedrock aquifer, the blessing of a significant recharge is present, whether a drawdown is short-term or long-term may not be readily apparent. The preponderance of evidence in these proceedings, however, support the proposition that mining has occurred and is occurring within the ground water emergency area from the bedrock aquifer. The scheduled water withdrawal restrictions currently in effect are a reasonable immediate response to ground water mining concerns.

vi. The three proceedings (administrative cause number 88-213W, 88-215W and 88-216W) were, by agreement of the parties, consolidated on August 8, 1988. Evidence presented in any hearing was included within the record of all of the proceedings.

vii. North Newton School Corporation sought a blanket exemption form the restriction, but particular reference was made to the need to irrigate the high school football field. The school was unable to offer evidence as to its total water withdrawal utilization or to present a compelling case for an irrigation exemption. An extensive period is now available to irrigate the football field. Without evidence of the total impact of a blanket exemption, or the documentation of special irrigation needs which cannot now be satisfied, the exemption must be limited to the terms of Finding 35.

[sic] vii. That a person does not utilize a significant ground water withdrawal facility has an obvious bearing upon causation. A facility which is not utilized does not contribute to the failure of a nonsignificant ground water withdrawal facility. The owner of a nonsignificant ground water withdrawal facility which is not utilized may have no responsibility to a complainant either in terms of an immediate temporary or permanent provision of water, but the evidence here makes it unnecessary to address those issues.