2. The Permits are included within the definition of "license" under IC 4-21.5-1-8. A licensing action by the DNR is subject to IC 4-21.5 (sometimes referred to as the "Administrative Orders and Procedures Act" or "AOPA"). The Natural Resources Commission (the "Commission") is the "ultimate authority" for the DNR under AOPA pursuant to IC 14-10-2-4. The Commission has jurisdiction over the subject matter and the parties to these proceedings.
3. Pursuant to 312 IAC 3-1-9, the Commission has delegated authority to its administrative law judges to render final orders with respect to motions to dismiss. The Administrative Law Judge has authority to render a final order with respect to the pending motion to dismiss.
4. An administrative law judge conducts a hearing de novo, weighing evidence and reaching conclusions, rather than deferring to the initial determination by the DNR. Abuse of discretion is a standard that may have application to judicial review but does not apply under AOPA to administrative review. Indiana Dept. of Natural Resources v. United Refuse Co., 615 N.E.2d 100 (1993 Ind.) and Hoosier Environmental Council v. RDI/Caesar's Riverboat Casino, 8 Caddnar 48 (1998).
5. The party seeking to set aside an initial licensing determination by the DNR generally has the burden of proof. The standard for the burden is by a preponderance of the evidence. IC 4-21.5-3-14 and Black Beauty Coal Company v. DNR and Roberts, 8 Caddnar 129 (1999).
6. Pratt has the burden of proof in these proceedings to establish the Permits (or at least one of them) have (or has) been improperly granted by the DNR. Pratt is not, however, required to demonstrate the DNR abused its discretion.
7. The motion to dismiss on the basis that Pratt has not shown the DNR abused its discretion is denied.
DEMONSTRATION OF STATUTORY AUTHORITY FOR THE RELIEF SOUGHT [VOLUME 9, PAGE 18]8. A state administrative agency has only the powers conferred on it by the Indiana General Assembly. Powers not within the agency's legislative grant of authority may not be assumed by the agency nor implied to exist in its powers. Bell v. State Board of Tax Commissioners, 615 N.E.2d 816, 819 (Ind. Tax Ct. 1995), citing Fort Wayne Education Association, Inc. v. Aldrich, 527 N.E.2d 201, 216 (Ind. Ct. App. 1988). The DNR and the Commission, on administrative review, have only the powers granted to them specifically by the Indiana General Assembly. Alexander v. Oak Park Conservancy District, 9 Caddnar 9 (2000); and, Dyer Baptist Church v. Town of Dyer and DNR, 8 Caddnar 79 (1998).
9. Pratt urges the Permits as conditioned violate the Clean Water Act. As is implicit to Pratt's email, this legislation was enacted by the U.S. Congress and not by the Indiana General Assembly. In the absence of state enabling legislation, an Indiana agency has no authority to regulate a licensing function based upon federal legislation.
10. The Indiana General Assembly has delegated authority for implementation of the Federal Water Pollution Control Act [FOOTNOTE 1] (33 U.S.C. 1251, et seq.) to the Indiana Department of Environmental Management. IC 13-13-5-1(1).
11. Although the Indiana Department of Environmental Management [FOOTNOTE 2] may, under the Clean Water Act, have authority to regulate the activities authorized by the Permits, the DNR does not.
12. Similarly, the Commission on administrative review has no authority to condition the Permits based upon the Clean Water Act. The Commission is without legal authority to grant the relief sought by Glen Pratt. His petitions must properly be dismissed.
FOOTNOTES 1/ The U.S. Congress, unlike the Indiana General Assembly, names its enactments. The Federal Water Pollution Control Act is an earlier incarnation of the Clean Water Act. For the purposes of this proceeding, the two enactments are treated as being equivalent. 2/ The Office of Environmental Adjudication provides administrative review for the Department of Environmental Management. IC 4-21.5-7.