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COA upholds classification of ‘high-hazard dam’

February 13, 2018

A Grant County couple must inspect and repair their self-constructed dam after the Indiana Court of Appeals upheld a Department of Natural Resources classification of the dam as “high-hazard.”

Two years after constructing a dam and lake on their property in Grant County, John and Mae Moriarity began receiving notices of violations from the DNR, including a notice in May 2012 alleging the dam was in violation of Indiana’s Dam Safety Act. During a subsequent fact-finding hearing before the Natural Resources Commission, DNR employees testified the dam was a “high hazard” dam that, if breached, could damage nearby homes and roads. The Natural Resources Commission agreed and entered an order in favor of the DNR on the 2012 violation notice, requiring the couple to lower the water level in their lake until the dam was inspected and repaired.

After the Grant Circuit Court upheld the commission’s order and denied a motion to correct error, the Moriaritys appealed in John E. Moriarity and Mae E. Moriarity v. Indiana Department of Natural Resources, 27A04-1612-PL-2731. The couple argued the DNR erred by exercising jurisdiction over their dam, but the Indiana Court of Appeals rejected that contention on Tuesday.

Noting the DNR would have jurisdiction if the dam was along a “stream,” Judge Edward Najam said the commission properly defined a stream using the common definition of “a body of water flowing in a channel on the surface of the ground.” Thus, because DNR presented testimony that the Moriaritys’ lake was created by damming streams along their property, the department had jurisdiction under Indiana Code section 14-27-7.5-8, Najam said.

Further, multiple witnesses presented evidence of the dam being high-hazard, including DNR testimony that a break in the dam could cause serious damage to nearby homes and roads, so the designation of a high-hazard dam was not erroneous, the appellate court found. Finally, the court dismissed the argument that the DNR’s order exceeded the agency’s authority because that issue was raised for the first time on appeal.

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