Content-Type: text/html 96-103w.v8.html

CADDNAR


[CITE: Garvin v. DNR and Silver Creek Sand & Gravel Co., 8 CADDNAR 8 (1997)]

[VOLUME 8, PAGE 8]

Cause #" 96-103W
Caption: Garvin v. DNR and Silver Creek Sand and Gravel Co.
Administrative Law Judge: Teeguarden
Attorneys: Garvin, pro se; Simone (DNR); no appearance (Sand & Gravel)
Date: February 3, 1997

Order

The decision of the Department of Natural Resources not to order Silver Creek Sand and Gravel Company to pay compensation to Jay and Norma Garvin 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 apply to these proceedings.

3. The DNR is the state agency responsible for the regulation of ground water to the extent it is regulated at all.

4. The Natural Resources Commission ("NRC") is the ultimate authority within the meaning of IC 4-21.5 with respect to agency actions involving ground water withdrawal.

5. During the drought of 1988, the DNR investigated complaints of domestic well failures near the area of operation of the Silver Creek Sand and Gravel company ("SCSG").

6. At all times relevant to these proceedings, SCSG was a significant ground water withdrawal facility as defined by IC 14-25-4-6.

7. As a result of the investigation, the DNR declared a ground water emergency ("GWE") as provided in IC 14-25-4-9 with respect to several wells close to the SCSG pumping facility but did not include the Garvin well in the GWE and therefore did not order compensation to the Garvins as provided in IC 14-25-4-18.

8. The Garvins (and others) requested administrative review of that decision of the DNR in administrative cause number 89-222W.

9. After a three day hearing held in May of 1990, administrative law judge Rider found against the Garvins and affirmed the decision of the DNR.

10. On November 26, 1990, the NRC, acting in its capacity as the ultimate authority over DNR administrative reviews, affirmed the nonfinal order of the administrative law judge at which time the decision not to include the Garvin well in the GWE order became a final agency action. See Garvin v DNR, 5 Caddnar 125 (1990).

11. The Garvins filed a petition for judicial review pursuant to IC 4-21.5-5.

12. The Jefferson County Circuit Court affirmed the decision of the NRC on July 10, 1992. See Garvin v. DNR, cause number 39C01-9102-CP-89, Jefferson County Circuit Court.

13. No appeal of this decision was taken thus there is currently a final, non-appealable judgment that the Garvin well did not fail as a result of a GWE.

14. The general rule in Indiana regarding ground water usage is that anyone who can lawfully access groundwater may pump in any quantity he wishes as long as the pumping is done for a valid reason and not maliciously. See Wiggens v. Brazil Coal and Clay (Ind. Sup. Ct. 1983), 452 N.E.2d 958.

15. At common law, SCSG had no duty to repair or replace any wells since the ground water pumping was done in order to mine sand and gravel below the water table.

16. In the early 1980's, the legislature enacted the forerunners of IC 14-25-3 and IC 14-25-4, which created rights and remedies to certain ground water users whose wells were damaged or impaired due to pumping systems withdrawing more than 100,000 gallons per day of groundwater.

17. As part of the legislation, the DNR was given regulatory authority to investigate and issue orders including compensation.

18. Since the newly created groundwater rights are a major change to the common law, the DNR is strictly limited to perform only those functions authorized by the statutes.

19. To be entitled to an order of compensation pursuant to IC 14-25-4-17 and 18, the well use must be in an area included in a GWE.

20. Since the Garvin well has been determined to not be included by such an order, the DNR (or NRC) cannot order any compensation from SCSG to the Garvins.

21. Further, the Garvins were compensated (but not as a result of a DNR order) in the amount of $1,757.66 for their new well by SCSG in April of 1996.

22. The Garvins claim that their total compensation should be $6,019.18. The additional amounts are for a cistern (approximately $1200), temporary water for two years (approximately $1200), and water softening and treatment systems (approximately $1750).

23. Even if the Garvins were legally entitled to any

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compensation under the GWE, the NRC could not order the additional payments.

24. The Garvins attempted to build a cistern instead of drilling a new well.

25. Under no circumstances are they entitled to compensation for both a cistern and a new well.

26. There is no statutory authority to order payment for a water treatment system.

27. IC 14-25-4-18 does authorize compensation for temporary portable water, but not for a two year period. If a GWE had been declared, Garvin would have been entitled to several weeks of water service until a new well was operational.

28. However, since a GWE has never been declared with respect to the Garvin water supply, no compensation can be ordered.

29. IC 4-21.5-3-23 permits the disposal of an administrative cause by way of summary judgment as long as the material facts are not in controversy and the moving party is entitled to judgment as a matter of law.

30. The failure of a party to respond to a motion for summary judgment does not automatically mean the movant is entitled to judgment. It does mean, however, that the administrative law judge may conclude that the material facts are not in issue.

31. An examination of the facts presented in this case shows that the DNR is entitled to judgment as a matter of law.