HB 1203-1_ Filed 03/03/2004, 16:51
Adopted 3/4/2004
CONFERENCE COMMITTEE REPORT
DIGEST FOR EHB 1203
Citations Affected: IC 14.
Synopsis: Coal reclamation and water issues. Specifies that water may be diverted from Lake
Michigan only if the diversion is approved by the governor of each Great Lakes state under
federal law. Restates enforcement and penalty provisions for violations under the jurisdiction of
the division of water of the department of natural resources (department). Changes certain
violations from a Class C infraction to a Class B infraction. Requires the owner of a dam to notify
the department of the sale of the dam. Allows a property owner or an individual who lives
downstream from a dam over which the department does not have jurisdiction to request the
department to investigate whether the dam is a high hazard structure if the individual believes that
the failure of the dam may cause loss of life or damage to the person's home or other structures.
Provides that if the department's investigation determines that the dam's failure may cause loss
of life or damage to certain structures, the dam is subject to the department's jurisdiction. (This
conference committee report inserts the contents of the Senate passed version of SB 295
concerning various water issues.)
Effective: July 1, 2004.
CONFERENCE COMMITTEE REPORT
MADAM PRESIDENT:
Your Conference Committee appointed to confer with a like committee from the House
upon Engrossed Senate Amendments to Engrossed House Bill No. 1203 respectfully
reports that said two committees have conferred and agreed as follows to wit:
that the House recede from its dissent from all Senate amendments and that
the House now concur in all Senate amendments to the bill and that the bill
be further amended as follows:
SOURCE: Page 1, line 4; (04)CC120304.1.1. -->
Page 1, between lines 4 and 5, begin a new paragraph and insert:
SOURCE: IC 14-25-1-11; (04)CC120304.1.1. -->
"SECTION 1. IC 14-25-1-11 IS AMENDED TO READ AS
FOLLOWS [EFFECTIVE JULY 1, 2004]: Sec. 11. (a) The general
assembly finds that a diversion of water out of the Great Lakes will
impair or destroy the Great Lakes. The general assembly further finds
that the prohibition of a diversion of water from the Great Lakes is
consistent with the mandate of the Preamble to and Article 14, Section
1 of the Constitution of the State of Indiana, the United States
Constitution, and the federal legislation according to which Indiana was
granted statehood.
(b) Water may not be diverted from that part of the Great Lakes
drainage basin within Indiana for use in a state outside the basin, unless
the diversion is approved by the governor of each Great Lakes state
under 42 U.S.C. 1962d-20 (Water Resources Development Act).
(c) The commission shall adopt rules necessary to implement
this section.
SOURCE: IC 14-25.5-4-6; (04)CC120304.1.2. -->
SECTION 2. IC 14-25.5-4-6, AS ADDED BY P.L.145-2002,
SECTION 3, IS AMENDED TO READ AS FOLLOWS [EFFECTIVE
JULY 1, 2004]: Sec. 6.
Except as provided in IC 14-26-7-8,
IC 14-27-6-52, IC 14-29-1-3, IC 14-29-7-25, and IC 14-29-8-5, a
person who knowingly violates an article enforced under this article
commits a Class B infraction. Each day a violation occurs is a separate
infraction.
SOURCE: IC 14-26-2-19; (04)CC120304.1.3. -->
SECTION 3. IC 14-26-2-19 IS AMENDED TO READ AS
FOLLOWS [EFFECTIVE JULY 1, 2004]: Sec. 19. (a) The department
may seek and a court having jurisdiction may grant injunctive relief
under IC 14-25.5-4 for the violation of this chapter. The plaintiff in
such a cause is not required to give bond, and after the filing of the
action and the service of notice all matters involved in the action shall
be held in abeyance until the action is tried and determined.
(b) If a defendant continues to violate this chapter after the service of
notice of the action and before trial, the plaintiff is entitled, upon a
verified showing of the acts on the part of the defendant, to a
temporary restraining order without notice. The temporary restraining
order is effective until the cause has been tried and determined.
SOURCE: IC 14-26-2-20; (04)CC120304.1.4. -->
SECTION 4. IC 14-26-2-20 IS AMENDED TO READ AS
FOLLOWS [EFFECTIVE JULY 1, 2004]: Sec. 20. The department may
bring an action in any court having jurisdiction under IC 14-25.5-4 for
damages caused by a person who violates this chapter.
SOURCE: IC 14-26-2-21; (04)CC120304.1.5. -->
SECTION 5. IC 14-26-2-21 IS AMENDED TO READ AS
FOLLOWS [EFFECTIVE JULY 1, 2004]: Sec. 21. A person who
knowingly violates this chapter commits a Class C Class B infraction.
SOURCE: IC 14-26-2-22; (04)CC120304.1.6. -->
SECTION 6. IC 14-26-2-22, AS AMENDED BY P.L.24-2001,
SECTION 3, IS AMENDED TO READ AS FOLLOWS [EFFECTIVE
JULY 1, 2004]: Sec. 22. (a) In addition to other penalties prescribed by
this chapter or IC 13-2-11.1 (before its repeal), the director may impose
a civil penalty under IC 4-21.5, not to exceed one thousand dollars
($1,000), on a person who violates any of the following:
(1) Section 6, 7, 8, 9, 10, 11, 12, 13, 18, or 23 of this chapter.
(2) A rule relating to section 6, 7, 8, 9, 10, 11, 12, 13, 18, or 23 of
this chapter.
(3) A permit under this chapter.
(b) Each day a violation continues after a civil penalty is imposed
under subsection (a) constitutes a separate violation.
(c) Civil penalties imposed under this section shall be deposited in the
state general fund. IC 14-25.5-4.
SOURCE: IC 14-26-5-17; (04)CC120304.1.7. -->
SECTION 7. IC 14-26-5-17 IS AMENDED TO READ AS
FOLLOWS [EFFECTIVE JULY 1, 2004]: Sec. 17. A person who
knowingly violates section 3 of this chapter commits a Class B
infraction.
SOURCE: IC 14-26-6-3; (04)CC120304.1.8. -->
SECTION 8. IC 14-26-6-3 IS AMENDED TO READ AS FOLLOWS
[EFFECTIVE JULY 1, 2004]: Sec. 3. A person who knowingly lowers
the water level of a lake more than twelve (12) inches below the high
water mark established by the dam or other artificial device creating the
lake commits a Class C Class B infraction.
SOURCE: IC 14-27-2-2; (04)CC120304.1.9. -->
SECTION 9. IC 14-27-2-2 IS AMENDED TO READ AS FOLLOWS
[EFFECTIVE JULY 1, 2004]: Sec. 2. A person who knowingly rides
or drives upon or over a levee constructed under law, except for the
purpose of:
(1) passing over the levee:
(A) at a public or private crossing; or
(B) upon a part of a public highway; or
(2) inspection or repair;
commits a Class C Class B infraction.
SOURCE: IC 14-27-7-5; (04)CC120304.1.10. -->
SECTION 10. IC 14-27-7-5, AS AMENDED BY P.L.148-2002,
SECTION 10, IS AMENDED TO READ AS FOLLOWS [EFFECTIVE
JULY 1, 2004]: Sec. 5. (a) If the department finds that a dike,
floodwall, levee, or appurtenance is:
(1) not sufficiently strong;
(2) not maintained in a good and sufficient state of repair or
operating condition; or
(3) unsafe and dangerous to life or property;
the department shall issue a notice of violation to the owner of the dike,
floodwall, levee, or appurtenance to make or cause to be made, at the
owner's expense, the maintenance, alteration, repair, reconstruction,
change in construction or location, or removal that the department
considers reasonable and necessary.
(b) The department shall limit in the notice the time for compliance
with the notice based on the seriousness of the circumstances involving
the structure.
(c) The owner shall comply with the notice. under IC 14-25.5-2.
SOURCE: IC 14-27-7-7; (04)CC120304.1.11. -->
SECTION 11. IC 14-27-7-7, AS AMENDED BY P.L.148-2002,
SECTION 12, IS AMENDED TO READ AS FOLLOWS [EFFECTIVE
JULY 1, 2004]: Sec. 7. An owner who knowingly fails to effect the
maintenance, alteration, repair, reconstruction, change in construction
or location, or removal within the time limit set forth in the notice of
violation of the department under:
(1) section 5 of this chapter; or
(2) IC 13-2-20-4 (before its repeal);
commits a Class B infraction. Every day of failure constitutes a separate
infraction.
SOURCE: IC 14-27-7.5-7; (04)CC120304.1.12. -->
SECTION 12. IC 14-27-7.5-7, AS ADDED BY P.L.148-2002,
SECTION 15, IS AMENDED TO READ AS FOLLOWS [EFFECTIVE
JULY 1, 2004]: Sec. 7. (a) The owner of a structure shall maintain and
keep the structure in the state of repair and operating condition required
by the following:
(1) The exercise of prudence.
(2) Due regard for life and property.
(3) The application of sound and accepted technical principles.
(b) The owner of a structure shall notify the department in
writing of the sale or other transfer of ownership of the structure.
The notice must include the name and address of the new owner
of the structure.
SOURCE: IC 14-27-7.5-11; (04)CC120304.1.13. -->
SECTION 13. IC 14-27-7.5-11, AS ADDED BY P.L.148-2002,
SECTION 15, IS AMENDED TO READ AS FOLLOWS [EFFECTIVE
JULY 1, 2004]: Sec. 11.
(a) If the department finds that a structure is:
(1) not sufficiently strong;
(2) not maintained in a good and sufficient state of repair or
operating condition;
(3) not designed to remain safe during infrequent loading events; or
(4) unsafe and dangerous to life and property;
the department may issue a notice of violation by letter to the owner of
the structure. The notice may require the owner of the structure to
make or cause to be made, at the owner's expense, the maintenance,
alteration, repair, reconstruction, change in construction or location, or
removal that the department considers reasonable and necessary.
(b) The department shall limit in the notice the time for compliance
with the notice based on the seriousness of the circumstances involving
the structure.
(c) The owner shall comply with the notice. under IC 14-25.5-2.
SOURCE: IC 14-27-7.5-13; (04)CC120304.1.14. -->
SECTION 14. IC 14-27-7.5-13, AS ADDED BY P.L.148-2002,
SECTION 15, IS AMENDED TO READ AS FOLLOWS [EFFECTIVE
JULY 1, 2004]: Sec. 13. An owner who knowingly fails to effect the
maintenance, alteration, repair, reconstruction, change in construction
or location, or removal within the time limit set forth in the notice of
violation of the department under:
(1) section 11 of this chapter; or
(2) IC 13-2-20-4 (before its repeal);
commits a Class B infraction. Every day of failure constitutes a separate
infraction.
SOURCE: IC 14-27-7.5-16; (04)CC120304.1.15. -->
SECTION 15. IC 14-27-7.5-16 IS ADDED TO THE INDIANA
CODE AS A NEW SECTION TO READ AS FOLLOWS [EFFECTIVE
JULY 1, 2004]: Sec. 16. (a) A property owner, the owner's
representative, or an individual who resides downstream from a
structure:
(1) over which the department does not have jurisdiction
under this chapter; and
(2) that the property owner, the owner's representative, or the
individual believes would cause a loss of life or damage to the
person's home, industrial or commercial building, public
utility, major highway, or railroad if the structure fails;
may request in writing that the department declare the structure
a high hazard structure.
(b) If the department receives a request under subsection (a),
the department shall:
(1) investigate the structure and the area downstream from
the structure;
(2) notify the owner of the structure that the structure is
being investigated;
(3) review written statements and technical documentation
from any interested party; and
(4) after considering the available information, determine
whether or not the structure is a high hazard structure.
(c) The department shall issue a written notice of the
department's determination under subsection (b) to:
(1) the individual who requested the determination; and
(2) the owner of the structure that is the subject of the
request.
(d) Either:
(1) the individual who requested a determination; or
(2) the owner of the structure that is the subject of the
request;
may request an administrative review under IC 4-21.5-3-6 within
thirty (30) days after receipt of the written determination.
(e) If the department determines that a structure is a high
hazard structure under subsection (b), the provisions of this
chapter concerning high hazard structures apply to the structure.
SOURCE: IC 14-28-1-24; (04)CC120304.1.16. -->
SECTION 16. IC 14-28-1-24 IS AMENDED TO READ AS
FOLLOWS [EFFECTIVE JULY 1, 2004]: Sec. 24. (a) This section
does not apply to the reconstruction of a residence located in a
boundary river floodway.
(b) A person may not begin the reconstruction of an abode or a
residence that:
(1) is located in a floodway; and
(2) is substantially damaged (as defined in 44 CFR 59.1, as in
effect on January 1, 1993) by a means other than floodwater;
unless the person has obtained a permit under this section or section
26.5 of this chapter.
(c) A person who desires to reconstruct an abode or a residence
described in subsection (b) must file with the director a verified written
application for a permit accompanied by a nonrefundable fee of fifty
dollars ($50). An application submitted under this section must do the
following:
(1) Set forth the material facts concerning the proposed
reconstruction.
(2) Include the plans and specifications for the reconstruction.
(d) The director may issue a permit to an applicant under this section
only if the applicant has clearly proven all of the following:
(1) The abode or residence will be reconstructed:
(A) in the area of the original foundation and in substantially the
same configuration as the former abode or residence; or
(B) in a location that is, as determined by the director, safer than
the location of the original foundation.
(2) The lowest floor elevation of the abode or residence as
reconstructed, including the basement, will be at or above the one
hundred (100) year flood elevation.
(3) The abode or residence will be designed or modified and
adequately anchored to prevent flotation, collapse, or lateral
movement of the structure resulting from hydrodynamic and
hydrostatic loads, including the effects of buoyancy.
(4) The abode or residence will be reconstructed with materials
resistant to flood damage.
(5) The abode or residence will be reconstructed by methods and
practices that minimize flood damages.
(6) The abode or residence will be reconstructed with electrical,
heating, ventilation, plumbing, and air conditioning equipment and
other service facilities that are designed and located to prevent
water from entering or accumulating within the components during
conditions of flooding.
(7) The abode or residence, as reconstructed, will comply with the
minimum requirements for floodplain management set forth in 44
CFR Part 60, as in effect on January 1, 1993.
(e) When granting a permit under this section, the director may
establish and incorporate into the permit certain conditions and
restrictions that the director considers necessary for the purposes of
this chapter.
(f) A permit issued by the director under this section is void if the
reconstruction authorized by the permit is not commenced within two
(2) years after the permit is issued.
(g) The director shall send a copy of each permit issued under this
section to each river basin commission organized under:
(1) IC 14-29-7 or IC 13-2-27 (before its repeal); or
(2) IC 14-30-1 or IC 36-7-6 (before its repeal);
that is affected by the permit.
(h) The person to whom a permit is issued under this section shall
post and maintain the permit at the site of the reconstruction authorized
by the permit.
(i) A person who knowingly:
(1) begins the reconstruction of an abode or a residence in violation
of subsection (b);
(2) violates a condition or restriction of a permit issued under this
section; or
(3) fails to post and maintain a permit at a reconstruction site in
violation of subsection (h);
commits a Class C Class B infraction. Each day that the person is in
violation of subsection (b), the permit, or subsection (h) constitutes a
separate infraction.
SOURCE: IC 14-28-1-25; (04)CC120304.1.17. -->
SECTION 17. IC 14-28-1-25 IS AMENDED TO READ AS
FOLLOWS [EFFECTIVE JULY 1, 2004]: Sec. 25. (a) A person who
desires to reconstruct an abode or a residence that:
(1) is located in a floodway; and
(2) is not substantially damaged (as defined in 44 CFR 59.1, as in
effect on January 1, 1997) by a means other than floodwater;
is not required to obtain a permit from the department for the
reconstruction of the abode or residence if the reconstruction will meet
the requirements set forth in 44 CFR Part 60, as in effect on January 1,
1997.
(b) A person who knowingly reconstructs an abode or a residence
described in subsection (a) in a way that does not comply with the
requirements referred to in subsection (a) commits a Class C Class B
infraction.
SOURCE: IC 14-28-1-32; (04)CC120304.1.18. -->
SECTION 18. IC 14-28-1-32 IS AMENDED TO READ AS
FOLLOWS [EFFECTIVE JULY 1, 2004]: Sec. 32. (a) A person who
knowingly violates section 20(2), 20(3), or 29 of this chapter commits
a Class B infraction.
(b) Each day of continuing violation after conviction of the offense
constitutes a separate offense.
SOURCE: IC 14-28-1-33; (04)CC120304.1.19. -->
SECTION 19. IC 14-28-1-33 IS AMENDED TO READ AS
FOLLOWS [EFFECTIVE JULY 1, 2004]: Sec. 33. (a) A person who
knowingly fails to:
(1) comply with the requirements of section 20(1) of this chapter;
or
(2) obtain a permit under section 22 of this chapter;
commits a Class C Class B infraction.
(b) Each day a person violates section 20(1) or 22 of this chapter
constitutes a separate infraction.
SOURCE: IC 14-28-1-34; (04)CC120304.1.20. -->
SECTION 20. IC 14-28-1-34 IS AMENDED TO READ AS
FOLLOWS [EFFECTIVE JULY 1, 2004]: Sec. 34. A person who
knowingly fails to comply with section 22(i) of this chapter commits
a Class D Class B infraction. Each day a person violates section 22(i)
of this chapter constitutes a separate infraction.
SOURCE: IC 14-28-1-35; (04)CC120304.1.21. -->
SECTION 21. IC 14-28-1-35 IS AMENDED TO READ AS
FOLLOWS [EFFECTIVE JULY 1, 2004]: Sec. 35. The commission
may maintain an action to enjoin a violation of this chapter under
IC 14-25.5-2.
SOURCE: IC 14-28-1-36; (04)CC120304.1.22. -->
SECTION 22. IC 14-28-1-36 IS AMENDED TO READ AS
FOLLOWS [EFFECTIVE JULY 1, 2004]: Sec. 36. (a) In addition to
other penalties prescribed by this chapter, the director may impose a
civil penalty under IC 4-21.5, not to exceed one thousand dollars
($1,000), on a person who violates any of the following:
(1) Section 20, 22, 27, or 29 of this chapter.
(2) A rule relating to section 20, 22, 27, or 29 of this chapter.
(3) A permit issued under this chapter.
(b) Each day a violation continues after a civil penalty is imposed
under subsection (a) constitutes a separate violation.
(c) Civil penalties imposed under this section shall be deposited in the
state general fund. IC 14-25.5-4.
SOURCE: IC 14-29-3-4; (04)CC120304.1.23. -->
SECTION 23. IC 14-29-3-4 IS AMENDED TO READ AS
FOLLOWS [EFFECTIVE JULY 1, 2004]: Sec. 4. (a) A person who
knowingly takes sand, gravel, stone, or other mineral or substance
from or under the bed of the navigable water of Indiana without a
permit commits a Class B infraction.
(b) Each day a violation continues constitutes a separate infraction.
SOURCE: IC 14-29-4-9; (04)CC120304.1.24. -->
SECTION 24. IC 14-29-4-9 IS AMENDED TO READ AS
FOLLOWS [EFFECTIVE JULY 1, 2004]: Sec. 9. (a) A person who
knowingly violates this chapter commits a
Class C Class B infraction.
(b) Each day of continuing violation after conviction of the offense
constitutes a separate offense.".
Renumber all SECTIONS consecutively.
(Reference is to EHB 1203 as printed February 18, 2004.)
Conference Committee Report
on
Engrossed House
Bill 1203
Text Box
S
igned by:
____________________________ ____________________________
Representative Frenz Senator Weatherwax
Chairperson
____________________________ ____________________________
Representative Mangus Senator Lewis
House Conferees Senate Conferees