As referenced in our prior blogs and seminars, there has been much discussion and litigation involving the scope of the “Water of the United States” definition, and the jurisdictional authority of the federal courts to hear challenges to the definition.

Challenges to jurisdictional authority of governmental entities over waterways also exist on the state level as highlighted in the recent Indiana Court of Appeals decision, John E. Moriarty and Mae E. Moriarty v Indiana Department of Natural Resources, 27A04-1612-PL-2731 (Ind. Ct. App. 2018).  This decision dealt with a dam that had been built on the Moriarty’s property between 1997-2000.  The Indiana Department of Natural Resources (“DNR”) issued several Notices of Violation to the Moriartys regarding the dam between 2002-2012.

The DNR Notice of Violation issued in 2012 primarily alleged that the dam was a “high hazard” dam per Indiana Code.  The Moriartys challenged DNR’s jurisdiction over the dam as well as the dam’s classification as a “high hazard” dam.  The Court ultimately ruled in favor of DNR indicating that DNR’s jurisdiction was proper based on the fact that the structure was along a stream, and the evidence supported that the dam was created by the damming of the streams that existed on the Moriartys’ property.  The court also concluded that while there was no set definition of stream in the statute, a stream should be interpreted by its ordinary meaning regardless of whether the flow is intermittent or continuously flowing.  Once jurisdiction was established, the court then found that the dam constituted a “high hazard” dam based on the evidence that supported serious damage could occur to structures if the dam were to be breached.

Property owners and developers need to be cognizant of the potential impacts that development may have on a subject property and surrounding parcels.  As such, prior to the development of any site or feature on your property, due diligence should be performed to assess whether any permits or applicable regulations may impact the project.  KDDK is frequently involved in real estate projects and assists clients in the due diligence process and negotiations with local, state and federal officials as may be applicable.  KDDK can also be of assistance with governmental entities should a Notice of Violation be received.

For more information about this or any related issue, please contact real estate and environmental law attorney Monica E. Edwards at (812) 423-3183 or; or contact any member of the KDDK Real Estate or Environmental Law Practice Team.

About the Author

Monica Edwards

Monica E. Edwards, a Partner at Kahn, Dees, Donovan & Kahn, LLP, in Evansville, Indiana, is a member of the KDDK business, environmental, intellectual property, and real estate law practice teams. Monica’s intellectual property experience includes the registration, assignment and renewal of trademarks and copyrights. She is also frequently involved with the licensing and defense of intellectual property and the negotiation of confidentiality agreements on clients’ behalf.

Monica draws upon her scientific experience as a technical services chemist and prior environmental consultant in her practice of environmental law. Her background helps her assist clients in performing environmental due diligence, negotiating environmental settlement agreements, coordinating site clean-ups, prosecuting historical environmental insurance claims, and recovering environmental defense and indemnity costs.

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