Information Bulletin #14
(First Amendment: March 1, 2002)
SUBJECT: Standards for the Development of a Commission Floodway Pursuant to IC 14-28-1-28
The Flood Control Act (IC 14-28-1) governs construction activities in a floodway as those activities may impact the capacity of the floodway, public safety, and fish, wildlife or botanical resources. There are two ways a floodway may be delineated. First, a floodway may be designated using technical criteria designed to predict the areas inundated and carrying flood waters during a 100-year frequency storm. Second, a floodway may be defined for a specific geographic area through designation as a "commission floodway."
The division of water has long used engineering principles for identification of the first type of floodway. Methodologies such as HEC 2 computer modeling have been approved by the commission and used with general professional and public acceptance.
The statutory authority for determining a "commission floodway" is flexible. As stated in IC 14-28-1-28:
A few procedural and jurisdictional background items are provided. An "order" to establish a "commission floodway" is defined as a "license" because it is "an approval... or similar form of authorization that may be issued to a person by... the commission... under Indiana law." As such, the director or a designate initially issues an order for a commission floodway, subject to the commission authority for administrative review. IC 14-11-3-1 and IC 14-10-2-3. The authority to establish policy by permanent rule rests with the commission. IC 14-10-2-4(c) and IC 14-28-1-5. The director may adopt emergency or temporary rules in this context pursuant to IC 14-10-2-4(d).
During its regular monthly meeting of June 20, 1996, the commission adopted criteria for commission floodways. The commission did so after determining the criteria were needed because of a growing desire to apply this statutory mechanism. On the other hand, there was a social need to approve the establishment of commission floodways only where they would not violate the spirit and intent of the Flood Control Act. Criteria were developed to facilitate the use of a statutory procedure and to assure implementation of the procedure would conform with statutory requirements for public safety and environmental protection. The standards were approved as guidelines, and made effective August 1, 1996, but with the expressed understanding they might later be considered for rule adoption. These guidelines were published in the August 1, 1996 Indiana Register at page 3240 as Information Bulletin #14.
The natural resources commission recently adopted 312 IAC 10-3-4 to address the delineation of commission floodways. Also to be noted is the term "commission floodway" is defined by 312 IAC 10-2-13. Effective January 1, 2002, the rule sections supersede the 1996 guidelines As a consequence of the new rules, the commission on January 22, 2002 approved the First Amendment to Information Bulletin #14. This First Amendment is effective March 1, 2002.