Content-Type: text/html 95-027w.v7.html

CADDNAR


[CITE: Save Clay-Harris Water v. DNR and City of Mishawaka, 7 CADDNAR 156 (1997)]

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Cause #: 95-027W
Caption: Save Clay-Harris Water v. DNR and City of Mishawaka
Administrative Law Judge: Teeguarden
Attorneys: Burnett Bauer; Davidsen; McHugh
Date: May 2, 1997

ORDER

The decision of the Department of Natural Resources not to declare a ground water emergency in the vicinity of the Gumwood Well Field is affirmed..

FINDINGS OF FACT

1. The Indiana Department of Natural Resources ("DNR") is an agency within the meaning of IC 4-21.5.

2. IC 4-21.5 and IC 14-25-4 apply to these proceedings.

3. To the extent that the pumping of ground water is regulated at all in Indiana, the DNR is the state agency responsible for regulation.

4. The Natural Resources Commission ("NRC") is the ultimate authority within the meaning of IC 4-21.5 with respect to decisions made by the DNR dealing with the pumping of ground water.

5. At all times relevant to these proceedings, the City of Mishawaka ("City"), as part of its municipal water works, operated a large ground water pumping facility at the Gumwood Well Field ("GWF") near Mishawaka, Indiana.

6. At all times relevant to these proceedings, the group of citizens in subdivisions near the GWF, known as Save Clay-Harris Water ("SCHW") relied on ground water and drilled wells for domestic water supplies.

7. Historically, the pumping of ground water has been subjected to few restrictions.

8. Indiana is recognized as one of the few remaining states to cling to the "absolute dominion" rule, which basically holds that ground water is there for the taking and anyone wishing to pump it may do so without concern for its effect on neighbors. See Waters and Water Rights 1991 edition sections 21.01 and 21.04.

9. In Wiggins v. Brazil Coal and Clay Company, 452 N.E.2d 958 (Ind. 1983), the Indiana Supreme Court overturned a Court of Appeals decision which held that a neighboring property owner had a right not to have his lake damaged by the pumping of ground water by a mine.

10. The Supreme Court in Wiggens, supra, reaffirmed the absolute dominion doctrine.

11. The only recognized exception in Indiana to the absolute dominion rule prior to 1980 was the "malicious use" rule enunciated in Gagnon v. French Lick Hotel Company, 163 Ind. 687, 72 N.E.849 (1904) in which an injunction against pumping was granted when it was clear that the only purpose for pumping was to damage another party.

12. Thus prior to the early 1980's, the Indiana law on ground water could be summarized as follows: If a party has a lawful right to occupy a tract of land and drill a well, as long as pumping takes place for a valid business purpose, there can be no liability for diminution of water to a neighboring landowner.

13. The legislature has seen fit to carve out two exceptions to this rule:

(a) IC 14-25-4 , the groundwater emergency ("GWE") section, and
(b) IC 14- 34, the Surface Mining Act.

14. IC 14 - 34, applies only to surface coal mines thus is inapplicable here, however in a recent supreme court decision interpreting the Surface Mining Act, the court held that Wiggens, supra, is still the Indiana Law and the Surface Mining Act is a narrowly created statutory exception. See Natural Resources Commission v. AMAX Coal Co. (1994), 638 N.E.2d 418.

15. The legislature has restricted any regulation of ground water withdrawal to "significant" ground water withdrawal facilities which are defined as systems which are capable of pumping more than 100,000 gallons per day. See IC 14-25-4-6.

16. GWF is a significant groundwater withdrawal system.

17. SCHW participants are owners of "nonsignificant ground water facilities", thus the initial requirement for consideration of a GWE is met. See IC 14-25-4.

18. A statutory exception to a well established principle of common law must be strictly construed. See Indianapolis Power and Light Co. v. Brad Snodgrass, Inc. (1991) 578 N.E. 2d 669.

19. The movement of groundwater in general and the effect of pumping ground water on an aquifer or aquifers is a matter of expert testimony and opinion.

20. The GWF became operational around 1990. City's brief, Exhibits 2 and 3, DNR brief Exhibit B.

21. Some ground water well level information dates back to 1987. City's brief, Exhibit 5, Table 1.

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22. The DNR has been involved in ground water studies in the GWF area since 1989 and taken more than 400 applicable water level measurements. DNR brief, Exhibits A & B.

23. The DNR has studied the actual and potential effects of high volume pumping at the GWF pursuant to its responsibilities enumerated in IC 14-25-4 and on one occasion in 1990, informed the City that the Clark Well was likely to fail because of its proximity to the pumping. The City replaced the Clark well with a deeper well. SCHW Exhibit B1, DNR brief Exhibit B, City brief Exhibit 3.

24. The DNR has conducted approximately forty investigations in the GWF area during the 1990's and has concluded there was no GWE as defined by statute. DNR brief Exhibit B.

25. Since the DNR has conducted extensive monitoring of the area, the burden of persuasion of changing or reversing the initial DNR determination is on a party disagreeing with the determination. See IC 4-21.5-3-14.

26. SCHW has the burden of producing expert testimony which shows a GWE exists for at least one well (other than the Clark Well).

27. The standards in Indiana which must be met for expert testimony before a trier of fact can rely on that testimony and render a decision based on it are found in Rule 702 I.R.E., Daubert v. Merrill Dow Pharmaceuticals (1993), 509 U.S. 579, 113S. Ct. 2786, 12 L.Ed. 2d 469, and Steward v. State (1995), 652 N.E.2d 490.

28. I.R.E. 702 deals with testimony by experts and states:

"(a) If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or determine a fact in issue, a witness qualified as an expert by knowledge, or education, may testify thereto in the form of an opinion or otherwise
(b) Expert scientific testimony is admissible only if the court is satisfied that the scientific principles upon which the expert testimony rests are reliable."

29. Daubert, supra, discusses in great detail the duty of a trial court to examine proffers of scientific testimony and exclude that testimony and those opinions which are suspect. Some of the considerations mentioned in Daubert include whether or not the theory has been tested, whether or not it has been subject to peer review and publications, and whether or not it has wide spread acceptance within a relevant scientific community.

30. Steward, supra, gave the Indiana Supreme Court an opportunity to discuss the Indiana Rules of Evidence in light of the Daubert, supra, decision. It emphasizes that before scientific evidence can be considered, the proponent must establish a standard of evidentiary reliability. There must be a valid scientific connection ". . . to the pertinent inquiry as a precondition to admissibility."

31. A number of persons designated as witnesses by the claimant have been deposed. A summary of this testimony is provided in the following paragraphs.

32. Rey Harwood lives near the well field and had a sudden, unexpected well failure. The well was about 20 years old. He replaced the old well with a new one approximately 30 feet deeper. Harwood was unable to say whether or not he believed the well field caused the failure.

33. Joe Grabill is another resident with a 20 year old well. He began having pressure problems with his two inch well and decided to replace it with a four inch well. Grabill lives about a half mile from the well field.

34. Susan Miner is another resident who lives between a mile and 1 miles from the well field. She also put in a new four inch well.

35. Edward Walsh, Sr., is a residence who began having well problems in 1993. He lives a little over 1/4 mile from the well field. In 1993, his well pressure decreased and he put in a new four inch well which was deeper.

36. Bruce and Toni McDougal are another set of residents who were deposed. They live about a mile from the well field. The McDougals had a pressure problem in the early 90's with a 17 year old well. The new well was ten feet deeper and four inches in diameter and replaced a two inch well.

37. Carl Barbieri was another resident listed as a witness by the claimant. He also had well problems in 1992 and replaced his 20 year old two inch well with a deeper four inch well.

38. Michael Gregor was also a deposed witness who resided in the area. Gregor noticed pressure problems in his 20 year old well in late 1992. He replaced his two inch well with a much deeper four inch well but still has a quality problem. Gregor lives about 1/4 mile from the well field and was the only deponent to specifically blame the GWF, however he was told at one

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point in the late 1970's by a driller that the builder had constructed the cheapest well he possibly could which included a shallow well pump.

39. Calvin Bauder was also deposed. His original well was a two inch well at a 30 foot depth. In 1993, he had to install a new well because of pressure problems and it was 65 feet deep. Bauder lives about 3/4 mile form the well field.

40. None of the citizens indicated they had any expertise in the area of groundwater from and well construction, so the value of their depositions is limited to factual observations they made such as when there was loss of pressure, location of wells, and replacement dates.

41. Two experts listed by SCHW were deposed and their testimony presented for consideration.

42. One expert was Roland Maurer, a water well driller with extensive experience with residential and commercial well drilling.

43. Maurer has operated his own well service or drilling business in the area since 1969, and worked for seven years prior to this for another well service in South Bend.

44. Mauer provided a detailed description of the installation differences between a two inch and four inch diameter well and indicated that the screen on a two inch well would plug up 25 times as fast as a four inch well screen because the two inch well relies on a vacuum-induced ground water flow into the well rather than relying on normal ground water migration as in the case of the four inch well.

45. Mauer serviced a number of wells in the area of the GWF both before and after the city began its high volume pumping.

46. Mauer indicated that from his personal knowledge, almost all the houses in the area were built with two inch wells.

47. Mauer's experience with two inch wells in this area led him to state that a two inch well may very well fail after 10-12 years and if a problem well is a two inch well that is 20 years old, it is definitely not worth the expense of trying to pull the screen and repairing the well and a new four inch well should be drilled.

48. Mauer also stated that there are a number of problems that can cause low water pressure and on that information alone, it is impossible to diagnose the problem.

49. Mauer gave his opinion that the failure of the Bauder well was due to age (28 years) more than any other reason.

50. Mauer had serviced the Barbieri well and knew it was old. He had recommended a while ago that it be replaced and his opinion was that the GWF did not cause its failure.

51. Mauer replaced the Harwood well (16 years old) in 1994 and stated that the well failure was due to the screen in the two inch well being plugged.

52. With respect to the Grabill well, Mauer replaced a screen on the two inch well for a prior owner in 1986 and then drilled a new well in 1995. Mauer's opinion was that the two inch well had lived out its useful life and that the GWF had no impact on the failure.

53. In the case of the Miner well, Mauer installed the new four inch well at a depth that was less than the old two inch well so the GWF played no role in this failure.

54. Mauer gave an opinion that the Walsh well might have been influenced by the GWF pumping but did not have enough information about the original well since he had never serviced it.

55. Mauer also gave an opinion that the failure of the Wagner well was due to age and not pumping.

56. Finally, Mauer specifically stated that in consider all of his work over the years in this area, he did not believe there had been any significant lowering of the water table from when he started and has never felt compelled to advise any homeowner that they needed a deeper well because of the ongoing pumping at the GWF.

57. The other expert witness listed by SCHW and deposed by the respondents was Hendrik M. Haitjema, PH.D., a professor at Indiana University with outstanding credentials in groundwater flow.

58. Haitjema has been involved in a number of consulting projects in Indiana dealing with groundwater.

59. Included in Haitjema's consulting work was a study commenced in 1989 of ground water in the Gumwood Road area.

60. Prior to his testimony at the deposition, Haitjema examined the GWF pumping records, DNR water level measurements, precipitation records, and maps showing the locations of some of the domestic wells in question.

61. The GWF maximum pumping capability is 4,750 GPM (gallons per minute). 62. Haitjema used the 4,750 GPM figure to produce a diagram that would be the maximum

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expected draw down of the water table; a worst case steady state scenario.

63. Haitjema examined data from months and days close to each other to minimize the seasonal variation of the water table which can cause several feet of water table fluctuation even without pumping.

64. Haitjema also prepared estimated draw downs based on a 1/3 utilization of the total pumping capacity since that seemed to be an average annual pumping scenario in the winter.

65. Haitjema was of the opinion that the well data examined for recent years was consistent with the predictions he made in his 1992 report.

66. Haitjema could not state an opinion as to whether any well failure was due to pumping at
the GWF.

67. The DNR began monitoring well levels in the area prior to pumping by GWF.

68. Ten wells have been monitored relatively continuously since March of 1990.

69. The two most interesting of these wells are the Clark well, which is the closest well to the pumping (within 250 feet of the GWF), and the Catanzarite well, which is just west of Grape road and the farthest monitoring well from the GWF (approximately mile).

70. The DNR monitors a controlled area with no pumping nearby in St. Joseph County called St. Joe 31 observation well.

71. Well 31 shows a March fluctuation from March of 1989 through March of 1996 of approximately 2 feet.

72. Interestingly enough, the Catanzarite well shows exactly the same fluctuation from March 1990 through March 1995.

73. The trier of fact can draw the inference that the cone of depression caused by pumping at the current levels has virtually no impact on wells located more than mile from the GWF.

74. The elevations at the Clark well, beginning with the one that was replaced and ending with the placement well, show March elevations ranging as much as eight feet indicating a draw down of around five feet or so due to pumping.

75. The Cionek and Nelson monitoring wells appear to be just over and just under a 1/4 mile from the GWF, respectively. The March water levels have fluctuated approximately five feet from March of 1990 through March of 1996.

76. The Wagner well, which is very close to Campbell monitoring well, is the closest domestic well which was the subject of testimony.

77. The Campbell well has shown a March fluctuation of five feet. Adjusting for seasonal variations means the draw down due to pumping is likely half that amount.

78. Wagner was not deposed, but Mauer stated with no hesitation that the Wagner well failure was due to the age of the two inch well.

79. The final expert relied upon by CMSW is Dennis Prezbindowski, Ph.D., a certified professional geologist connected with Notre Dame.

80. The City has objected to the inclusion of Prezbindowski's report for the reasons that it was not submitted in a timely fashion and thus the City and DNR were unable to provide rebuttal evidence or take a deposition.

81. The City has a valid point and the motion to strike should probably be granted, however the inclusion of the Prezbindowski report does not change the ultimate outcome of this case.

82. Prezbindowski states that the scope of his review ". . . is limited to the general questions regarding the potential geochemical impact of induced ground water fluctuations, shallow residential well performance, . . . ."

83. The Prezbindowski report references homeowner surveys and reports such as the Haitjema report.

84. Prezbindowski does not indicate any place in the report that he has examined the tremendous volume of data collected by the DNR nor does he state that in his professional opinions the pumping at the GWF has created a GWE as defined by statute.

85. In his summary, Prezbindowski states that ". . . draw down of the water table caused by high volume ground water removal at . . . may cause the decreased water quality and shallow well performance problem . . . . "

86. As written, the Prezbindowski report is of little use to the trier of fact and does not meet the requirements of Rule 702, I.R.E. or Daubert, supra.

87. Expert testimony which has not been shown to have considered all the available data and which concludes only that a drawdown "may" or "could" cause well problems is not sufficient to aide the trier of fact.

88. It is the responsibility of the proponent of scientific testimony to qualify the expert and his evidence. [FOOTNOTE 1] The proponent here has not provided scientific evidence of sufficient reliability that assists the trier of fact.

89. The DNR presented evidence in the form of an affidavit from Mark Basch, a certified

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professional geologist, who has been responsible for dealing with groundwater emergencies for DNR for 10 years.

90. Basch has collected extensive water elevation data in the GWF area since March of 1989. See Exhibit B.

91. Basch's superior provided an affidavit stating the DNR Division of water has conducted over 1000 GWE investigations since the statistic took effect. See exhibit A.

92. Basch's affidavit concludes that the pumping by the city at the current level has not lowered the ground water level by a substantial or significant amount. He concludes, the maximum draw down of the water table due to the pumping is 3-4 feet, when adjusted for seasonal influences. Those wells not close to the GWF would have less of a draw down.

93. Tha city produced draw down diagrams (exhibit 5) performed by John R. Barnhart, C.P.G., which are generally consistent with Basch's conculsion.

94. As discussed in paragraphs 7 through 18, there is no common law right to relief from pumping by the city.

95. Any right to relief that SCHW may have is governed exclusively by IC14-24-4.

96. At all times relevant to these proceedings, the city has been a significant ground water withdrawal facility as defined by IC14-25-4-6 and while there are other significant ground water withdrawal facilities in the area, the city facility is the only one close enough to SCHW members to affect them.

97. SCHW has made a complaint pursuant to IC 14-25-4-8, and pursuant to the same code section, the DNR has conducted an investigation.

98. IC 14-25-4-9, sets forth the legal requirements for the declaration of a GWE. There are 6 sections, set forth below, which must be satisfied before the DNR can declare a GWE.
(1)....the well has:
(A) failed to furnish the well's normal supply of water.
(B) failed to furnish potable water;

(2)....there has been a substantial lowering of the level of groundwater in the area, that has resulted in the failure of the well to:
(A) furnish the well's normal supply of water; or
(B) furnish potable water....

(3)....the well and the well's equipment were functioning properly at the time of the failure;
(4)....the failure of the well was caused by the lowering of the ground water level in the area;

(5)....the lowering of the ground water level is such that the ground water level:
(A) exceeds normal seasonal water level fluctuations; and
(B) Substantially impairs continued use of the ground water resources in the area; and

(6)....the lowering of the ground water level was caused by at least one (1) significant ground water withdrawal facility;...."

99. The use of the word "and " means that all 6 of the conditions listed in paragraph 98 must be met before a GWE can be declared and remedies ordered.

100. There is sufficient evidence in the record to show that wells in the area of the GWF have failed to furnish water, the ground water level has been lowered somewhat near the GWF, and the lowering of the water level has been caused by the city's significant ground water withdrawal facility.

101. SCHW has the burden of producing sufficient evidence that all of the remaining 3 conditions are satisfied.

102. SCHW selected 9 representative homeowners in the area of the GWF.

103. The evidence from the home owners and the well driller summarized previously, casts serious doubts on whether or not the wells were functioning properly at the time of failure.

104. Further, to declare a GWE, there must be evidence of a substantial lowering of ground water in the area due to pumping by the city.

105. The NRC has decided in two contested cases in favor of

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persons seeking relief for a GWE where ground water levels were discussed.

106. In John Brown Status for Water Well Replacement, 6 Caddnar 46 (1992), the evidence showed a draw down of ground water due to pumping of 15 feet.

107. In Hacker v DNR and The City of Huntington, 4 Caddnar 35 (1987), there is a finding that the pumping lowered the ground water level between 24.5 and 36.5 feet.

108. Both of these draw downs were found to be "substantial" within the meaning of the GWE
Act.

109. In the present case, the maximum draw down due to pumping at the closest domestic wells is in the neighborhood of 5 feet.

110. While the trier of fact is not asserting that a ground water draw down of the order of magnitude present near the GWF can never be considered substantial, it would take considerably more expert evidence than has been presented here to justify such a finding.

111. The claimants have not presented sufficient evidence to support a finding that there has been a substantial lowering of the level of ground water that has resulted in well failures.

112. Likewise, given the evidence provided by Mauer, the preponderance of the evidence shows that the well failures of the 9 selected representatives of SCHW was not due to the lowering of the ground water, but the construction and age of the wells.

113. One final issue raised by SCHW deals with water quality.

114. The GWE act only allows action if either the well fails because of the pumping or the tap water is no longer "potable" because of the pumping.

115. SCHW has produced some evidence of increased iron and manganese levels since pumping commenced by the city.

116. IC 14-25-4-5 define, "potable water" as "water that at the point of use is acceptable for human consumption under drinking water quality standards..."

117. A general degradation of well water is not actionable under the GWE act.

118. The degradation must reach the point at which the water is unsafe.

119. There has been no evidence presented here that the water cannot be used because of health and safety standards.

120. In short, SCHW has the burden to produce sufficient evidence including expert testimony to show by a preponderance of the evidence that the pumping at current levels by the city has resulted in a GWE.[FOOTNOTE 2]

121. SCHW has failed to meet this burden.

FOOTNOTES

1. SCHW may well be at a disadvantage here in that it is represented by a non-attorney. Indiana law however, is very clear in that the non-attorney is held to the same standard as is a licensed attorney. See, Rickels V. Herr (1994 5th district); 638 N.E.2d 1280

2. The city is currently pumping the GWF annually at approximately 30% of its totally capacity. If that percentage is
increased, this matter may well have to be re-examined.