[CITE: DNR, Collins v. Hasenour, et al., Dubois
Highway Dept., 5 CADDNAR 180 (1991)]
[VOLUME 5, PAGE 180]
Cause #: 90-049W
Caption: DNR, Collins v. Hasenour, et al., Dubois Highway Dept.
Administrative Law Judge: Rider
Attorneys: McInerny, DAG; pro se (Collins); McConnell; Brian Small
Date: August 15, 1991
ORDER
Earl
and Agatha Hasenour's request for review is hereby
dismissed (90-053w). A Notice of Violation is issued against Earl and Agatha Hasenour (90049W) for failure to correct the matter of a
levee being placed along Dillon Creek near Cuzco, Dubois County, without a
permit from the Natural Resources Commission. Abatement for such violation will
be to seek and obtain approval of a permit to reconstruct said levee and in a
lawful manner. If such permit is not obtained, the Hasenours
must degrade the levee to existing ground elevations at the toe of the levee
within 90 days from the date the permit is denied or, if no permit is applied
for by January 1, 1992. The charge for failure to degrade within the time frame
is $100 per day for a period of 100 days (maximum $10,000).
FINDINGS OF FACT
1.
On February 22, 1990, the Department filed a complaint for the Issuance of a
Notice of Violation (NOV) (the "Complaint") against Earl Agatha Hasenour (the "Hasenours").
2.
The Complaint alleged that the Hasenours had placed
an unpermitted levee along Dillon Creek near Cuzco in Dubois County.
3.
On February 27, 1990, the Hasenours filed an
objection to the Department's denial of application L-11,812.
4.
The Hasenour's application would have allowed repairs
to the unpermitted levee which had been breached.
5.
On February 28, 1990, Howard Collins and 18 other citizens filed an objection
to any levee being placed in the Dillon Creek floodplain in Dubois County. Mr.
Collins was joined to the NOV action as a Claimant Intervenor
and to the Hasenour objection as a Respondent Intervenor.
6.
At a prehearing conference on April 27, 1990, the Complaint and the objection
were merged into one action.
7.
Also at the April 27, 1990, prehearing conference the Dubois County Highway
Department (the "County") was granted intervenor
status after showing that the County's interest would be adversely effected if the levee was removed.
8.
The Natural Resources Commission (the "Commission") is an agency as
defined in IC 4-21.5-1-3 and is the ultimate authority with respect to this
proceeding.
9.
IC 4-21.5, IC 13-2-22, and 310 IAC 0.6 apply to this proceeding.
10.
At hearing the parties, except Mr. Collins, stipulated that they had reached an
agreement.
11.
Under this agreement the Haseonours would withdraw
their objection to the denial of Application L-11,812 and the Department would
allow the Hasenours to submit a new application to
rebuild the levee in a form which would meet the requirements of IC 13-2-22.
12.
Mr. Collins objected to the agreement because he wanted no levee in any form in
the area in question due to levee-created backwater which allegedly floods his
and others property.
13.
The only issues for the administrative law judge to decide are whether it is
possible for the Hasenours to redesign the levee in a
manner which would conform to the law; and if the levee is ordered removed, and
such removal is not accomplished, what should be the charge imposed under IC
14-3-3-22(a).
14.
In regard to the levee, all evidence indicates that it might be possible to
redesign it to conform to the law.
15.
Mr. Collins' evidence of pictures showing flooding was not compelling because
he did not tie it to a showing that the levee caused the flooding or that any
other levee configuration would cause future flooding.
16.
Department hydraulic engineer John LaTurner testified
that he had performed computer models of the area and that based on his
research it might be possible to rebuild the levee in a lawful manner.
17.
The Hasenours called Allen Leistner
of Donan Engineering who presented a concept of the
existing levee and of how it could be rebuilt in a much smaller manner.
18.
Mr. Leistner testified that the new levee would
perform its intended function while creating very little backwater.
19.
Brian Small, P.E., the Dubois County Engineer, testified that if the existing
levee was removed and not replaced, the county road south of the levee would be
destroyed because the road and allied bridges were designed with the assumption
that a levee would be in place.
20.
Mr. Small further testified that Mr. Collins' flooding in 1990 was caused by an
[VOLUME 5, PAGE 181]
inordinate amount of rainfall (area was
deemed a Federal Disaster area due to flooding) and not the levee.
21.
Mr. Small cited several factors for Mr. Collins' flood and gave his expert
opinion that Mr. Collins lives about one mile from the levee site. No levee,
regardless of how designed, could cause a problem at Mr. Collins' home.
22.
The evidence clearly indicates that the Hasenours
should be allowed to redesign the levee.
23.
Such redesign would have to undergo the scrutiny of the Department experts and
the neighboring property owners might have standing to object to the approval
of such a new permit application.
24.
In regard to imposition of a change for the violation which the Hasenours have admitted to, the only provision of the law
violated is IC 13-2-22-13(d) because, by admission, there is an unpermitted
levee in the floodway of Dillon Creek.
25.
Such levee, being breached, is not a violation of IC 13-2-22-13(b) because no
significant or unreasonable hazard to the safety of life and/or property has
been shown.
26.
IC 13-2-22-13(h)(2) provides that a violation of IC
13-2-22-13(d) is a Class C infraction.
27.
The maximum penalty for a Class C infraction is $500 for each day the violation
continues.
28.
Evidence shows that the Hasenours have tried to work
within the legal system to "do the right thing" with the levee.
29.
Indeed, the levee is actually a cog in the Dubois County flood control plan, and
therefore, is a public asset rather than a detriment.
30. Based
on the above, a very low charge is indicated.