1. Each of the Findings of Fact set forth above is incorporated into this Temporary Order Following Hearing.
2. The declaration by the Director is continued with respect to a ground water emergency which exists within the new ground water emergency area described in Finding 14.
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 Joseph Lane, Dave Lane, John Lonergan, Joseph Kosta, Robert Prohosky and Wanda Prohosky at the sites of their wells within twenty-four (24) hours of service of the respective temporary orders are made continuing obligations.
4. In the absence of the temporary orders (as confirmed by this Temporary Order Following Hearing) 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 pumping from all significant ground water withdrawal facilities completed in the bedrock aquifer is the only way to prevent irreparable damage to the ground-water resources of the area.
5. Pumping from significant ground water withdrawal facilities completed in the bedrock aquifer is prohibited each week from the hours of 6:00 p.m., EST, Friday to 6:00 a.m., EST, Tuesday in the area of Jasper and Newton counties bounded by the east-west extension of Newton County Road 700 North on the north, Jasper County Road 1000 West on the east, State Road 14 on the south, and the north-south extension of Newton County Road 200 East on the west.
6. This Temporary Order Following Hearing 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 Following Hearing shall automatically terminate on November 15, 1988 unless extended in accordance with the administrative adjudication act (IC 4-21.5).
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 on-sight investigation to be made.
2. On August 15, 1988, a written complaint was received by the department of natural resources (the "Department") from Joseph Lane, 115 Home Avenue, Rensselaer, in Jasper county, Indiana stating that a well on property in the possession of David Lane and located in the northwest quarter of section 6, township 29 north, range 7 west, in Newton township, Jasper county, Indiana (the "Lane Well") had failed to furnish its normal supply of water.
3. On August 15, 1988, a written complaint was received by the Department from John Lonergan, RR 1, Box 281, Rensselaer, in Jasper county, Indiana stating that a well on property in his possession located in the northeast quarter of section 3, township 29 north, range 7 west, in Newton township, Jasper county, Indiana (the "Lonergan well") had failed to furnish its normal supply of potable water.
4. On August 16, 1988, a written complaint was received by the Department from Joseph Kosta, R.R. 1 Box 11, Fair Oaks, in Jasper county, Indiana stating that two wells on property in his possession located in the east half of section 20, township 30 north, range 7 west, in Union township, Jasper county, Indiana (the "Kosta wells") had failed to furnish its normal supply of potable water.
5. On August 17, 1988, a written complaint was received by the Department from Robert Prohosky and Wanda Prohosky, RR 1, Box county, Indiana stating that a well on property in their possession located in the northeast quarter of section 9, township 30 north, range 8 west, in Colfax township, Newton county, Indiana (the "Prohosky well") had failed to furnish its normal supply of potable water.
6. Within twenty-four (24) hours after receiving the respective complaints, on-sight investigations were made of the Lane well, the Lonergan well, the Kosta wells and the Prohosky well by personnel employed with the Division of Water of the Department of Natural Resources.
7. The investigations described in Finding 6 revealed as follows:
(a) Each well is a nonsignificant ground-water withdrawal facility.
(b) Each well was constructed and completed before December 31, 1985 into the same Silurian-Devonian carbonate bedrock aquifer (the "bedrock aquifer").
(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 within the bedrock aquifer in the area that had resulted in the failure of each well to furnish its normal supply of water..[FOOTNOTE i]
(e) The Lane well, the Lonergan well, the Prohosky well and their equipment were functioning properly at the time of the failure. The pumps were removed from the Kosta wells at the time of the investigation, but a history of performance established during recent years provided a reasonable inference that the equipment was functioning properly on the Kosta wells.
(f) Each well had failed as a result of the lowering of the groundwater level in the area.
(g) The lowering of the ground-water was such that it:
(1) exceeded normal
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seasonal water level fluctuations; and
(2) substantially impaired the continued use of the ground water resource in the area.
8. On August 17, 1988, the Director entered a "Temporary Order to Declare a Ground-Water Emergency" in administrative cause number 88-241W. Similar temporary orders were entered in cause numbers 88-242W, 88-243W and 88-245W on the following day. (Collectively these are referred to as the "temporary orders".)
9. As provided in IC 13-2-2.5, the temporary orders required that the owner of a significant ground water withdrawal facility provide to the owners of the nonsignificant ground water facilities an immediate temporary provision at the prior point of use of an adequate supply of potable water.
10. The owners of the Lane well, the Lonergan well, the Kosta wells and the Prohosky well were each offered a temporary provision of an adequate supply of potable water following entry of the temporary orders.
11. In June and July of 1988, water level drawdowns from the bedrock aquifer exceeded what historically had been experienced in Jasper county and Newton county.
12. As a result of complaints filed pursuant to IC 13-2-2.5 by individuals (other than the complainants in the instant proceedings) who operated significant ground water withdrawal facilities in the bedrock aquifer, the Director on July 15, 1988 declared a ground water emergency in Jasper county and Newton county within an area bounded 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 (the "Previous ground water emergency area")
13. Following hearings conducted pursuant to IC 13-2-2.5 and IC 4-21.5, the declaration of a ground water emergency culminated in the entry of a "Temporary Order Following the Declaration of Ground-Water Emergencies in Jasper and Newton Counties". Within the previous ground water emergency area, significant ground water withdrawal facilities completed in the bedrock aquifer were prohibited from pumping each day of the week as follows:
(a) From the hours of 6:00 P.M., EST, Friday to 6:00 A.M., Sunday beginning with the week starting Sunday, July 10, 1988 for 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. This restriction followed a finding by the Director, which was supported by evidence adduced at hearing, that withdrawals from the bedrock aquifer were exceeding its recharge capacity.
14. Subsequent to entry of the ground water withdrawal restriction described in Finding 13, the Department continued to collect ground-water level information from the bedrock aquifer within Jasper county and Newton county. The information collected indicates that withdrawals within Jasper county and Newton county bounded by the east-west extension of Newton County Road 700 North on the north, Jasper County Road 1000 West on the east, State Road 14 on the South and the north-south extension of Newton County Road 200 East on the west (the "new ground water emergency area") are continuing to exceed the recharge capability of the ground water resource. Particularly demonstrative of water level declines were measurements from observation wells located in the vicinity of Parr, Fair Oaks and west of those communities.
15. As provided in IC 13-2-2.5-3(b)(2), the Director may restrict the quantity of ground water that may be extracted from a significant ground water withdrawal facility if that facility is reasonably believed to have caused the failure of a complainant's water well and continued ground water withdrawals would exceed the recharge capability of the ground water resource in the area.
16. There is reasonable cause to believe, that even following restrictions imposed upon the significant ground water withdrawal facilities within the previous ground water emergency area, withdrawals by significant ground water withdrawal facilities (completed in the bedrock aquifer and located in the new ground water emergency area) were, prior to August 17, 1988, continuing to exceed the recharge capability of the ground water resources in the area.
17. The additional restrictions imposed by the temporary orders prohibited pumping from significant ground water withdrawal facilities located in the new ground water emergency area each week from the hours of 6:00 p.m., EST, Friday to 6:00 a.m., EST, Tuesday beginning with the week starting Sunday, August 14, 1988.
18. The additional restrictions imposed by the temporary orders were needed to prevent irreparable damage to the ground-water
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resource of the area. Those restrictions are appropriate and should be confirmed.
19. IC 13-2-2.5-3(a) provided that IC 4-21.5-4 governs the conduct of these proceedings.
20. Unless subsequently determined otherwise by the Department or a court on judicial review, the temporary orders expire ninety (90) days from their initiation.
21. Administrative cause number 88-241W, 88-242W, 88-243W and 88-244W were consolidated by agreement of the parties on August 23, 1988 prior to the receipt of evidence. The date for the expiration of these consolidated proceedings should be measured from entry of the first of the temporary orders.
22. The first of the temporary orders was entered on August 17, 1988; and the expiration date for the consolidated proceedings should occur on November 15, 1988.
FOOTNOTE
i. The original ground water emergency law had application exclusively to Jasper and Newton counties and specified that the Department issue recommended guidelines for the construction of wells and the type and setting of pumps. 1982 Ind. Acts, Law 102. Guidelines established pursuant to that law required that pump intake settings be set to provide "a minimum of 50 feet of available drawdown". 7 Ind. Reg. 2620, 2621. In 1985 the emergency ground water law was amended to provide statewide application. 1985 Ind. Acts, Law 144. A new provision was made for well construction guidelines, but the new guidelines applied only to wells constructed after December 31, 1985. The new guidelines superseded the guidelines adopted under the 1982 law. 9 Ind. Reg. 1242. In effect, wells constructed before 1986 were "grandfathered", and no particular drawdown tolerance now applies to them. What constitutes a substantial lowering of the ground water level is a factual question which must be determined on a case-by-case basis. See, generally, Hacker v. City of Huntington, 4 Caddnar 35, 37 (July 27, 1987). The preponderance of the evidence, including the only expert testimony, is that the ground water levels at the Lane well, the Lonergan well, the Kosta wells and the Prohosky well each experienced a "substantial" lowering.