FINAL ORDER
The issuance of license FW-19,540 is appropriate as it pertains to Rocky Ripple and improvements at the Canal Levee. Issuance of license FW-19,540 is affirmed.
FINDINGS OF FACT AND CONCLUSIONS OF LAW
1. The City of Indianapolis, Department of Public Works, ("DPW") applied for a license from the Department of Natural Resources ("DNR") under IC 14-28-1 (sometimes referred to as the "Flood Control Act"). Applicable to the Flood Control Act are rules adopted by the Natural Resources Commission (the "Commission") at 312 IAC 10. The license sought authorization to construct new flood protection structures in the floodway of the West Fork of the White River in Marion County, Indiana.
2. The DNR conducted technical, engineering, and environmental reviews of the license application. The DNR approved the application on May 30, 2001 as license FW-19,540 (the "subject license") with various general and special conditions. The subject license was mailed on June 1, 2001.
3. On June 15, 2001, Danny Orr ("Orr") timely filed a Petition of Appeal with the Division of Hearings of the Commission.
4. The petition initiated a proceeding governed by IC 4-21.5 and for which the Commission is the "ultimate authority" under IC 14-10-2-3.
5. In the petition, Orr presented multiple contentions, many of which were outside the Flood Control Act and thus outside the subject matter jurisdiction of the Commission. For this reason, DNR and DPW sought and were granted relief in an "Interlocutory Order for Partial Summary Judgment" entered on January 8, 2002.
6. At the same time, Orr raised other issues that were within the purview of the Flood Control Act and upon which there were genuine issues of material fact.
7. Orr averred the Metro Indianapolis North Flood Protection Project, including the work described in the subject license, would increase flooding in Rocky Ripple where he is a resident. He also identified statutory provisions described in Finding 8 through Finding 11 that might form a proper legal basis for his administrative review.
8. As provided in IC 14-28-1-1(1), the legislature found the loss of lives and property caused by floods and the damage resulting from floods is a matter of deep concern to Indiana affecting the life, health, and convenience of the people and the protection of their property.
9. Also, in IC 14-28-1-1(1), the legislature declared that to prevent and limit floods, flood control works and structures should be regulated, designed, and constructed according to sound and accepted engineering practices. These practices should be implemented to best control and minimize the extent of floods and reduce the height and violence of floods.
10. The legislature specified in IC 14-28-1-22(e)(2) that the DNR shall not approve a license application for construction in a floodway, if the resulting structure or deposit would constitute an unreasonable hazard to the safety of life or property.
11. In IC 14-28-1-20(2)(B)(i),
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the legislature prohibited the placement or maintenance of a structure in a floodway if the design, method of construction, state of maintenance, or physical condition, of the structure would constitute an unreasonable hazard to the safety of life or property.
12. Referencing these and other relevant elements of the Flood Control Act, a hearing was conducted on May 14, 2002 to consider evidence bearing upon Orr's petition.
13. Rocky Ripple is an incorporated town in Marion County, Indiana that consists primarily of a few public buildings and 323 residences, with a population of 730 people. The town is located in the area immediately west of the West Fork of the White River and generally north of 46th Street extended and south of 56th Street extended.
14. A levee (the "West Fork Levee") was constructed in 1936 along the eastern bank of the West Fork of the White River that provides flood protection to Rocky Ripple and the surrounding community. The U.S. Army Corps of Engineers rates the condition of the levee as being poor to fair. Orr testified that, during a high-water event in May 2002, trees were falling along West Fork Levee, and he prepared sandbags with the thought they might later become necessary. The City of Indianapolis has an easement for flood control maintenance along the entire West Fork Levee.
15. In response to concerns for flooding, the DPW and the U.S. Army Corps proposed development of the Metro Indianapolis North Local Flood Protection Project. The project would include the construction or reconstruction, in four sections, of flood protection structures.
16. One of these sections is known as the "Canal Towpath Section" and passes through Rocky Ripple along the western bank of the Indianapolis Water Company Canal. A levee (the "Canal Levee") also exists at this location, consisting in large part of spoil resulting from construction of the canal in 1836.
17. The license would authorize improvements to the Canal Levee, the effect of which would provide improved flood protection for neighborhoods farther east, but it would provide no protection to Rocky Ripple. The town is located between the Canal Levee and the West Fork Levee.
18. Dennis K. Stewart, Professional Engineer, is a hydraulic engineer employed by the DNR. He is a graduate civil engineer with expertise in hydrology and hydraulics. Stewart was the only engineer to testify.
19. Stewart testified engineering analysis was performed on the West Fork Levee to determine existing conditions. The analysis revealed in excess of one foot of freeboard during a regulatory flood.
20. A regulatory flood means a flood having a one percent probability of being equaled or exceeded in a year as calculated by a method and procedure that is approved by the Commission. The regulatory flood is equivalent to the base flood for regulatory purposes or what is sometimes referred to as the "100-year frequency" flood. 312 IAC 10-2-35.
21. The engineering analysis demonstrated that during a regulatory flood, the West Fork Levee would protect Rocky Ripple with at least one foot of clearance above flood levels. Stewart Testimony.
22. To design and develop a new flood control work, the Federal Emergency Management Agency ("FEMA") requires three feet of freeboard above a regulatory flood. The West Fork Levee would not satisfy FEMA standards for new construction to protect a flood-prone area. Stewart Testimony.
23. For design and planning purposes, the "flood plain" is the area adjoining a river that has been or may be covered with flood water during a regulatory flood. IC 14-28-1, IC 14-8-2-99, and 312 IAC 1-1-5. The "floodway" is the portion of the flood plain reasonably required to efficiently carry and discharge the flood
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water or flood flow of a river. IC 14-28-1, IC 14-8-2-102, and 312 IAC 1-1-16. The "fringe" is the portion of the flood plain lying outside the floodway. 312 IAC 10-2-24.
24. The floodway of the West Fork of the White River is limited to the river itself and to the area between the river and the West Fork Levee. Rocky Ripple is in the fringe but is not in the floodway. Stewart Testimony.
25. Although portions of the Metro Indianapolis North Flood Protection Project are located in the floodway, the Canal Levee is not. The Canal Levee is located in the fringe. The DNR analyzed the construction to take place at the Canal Levee because it is an integral part of a flood control project. An expert determination was required to assure the elevation and integrity of the improvements to the Canal Levee would be appropriate for the flood control project. A favorable expert determination was made with respect to the Canal Levee. Stewart Testimony.
26. The DNR has jurisdiction over construction works that are integral parts of a flood control project where those works are within the flood plain, even if they are not located in the floodway. IC 14-28-1-1 and IC 14-28-1-12.
27. The DNR has jurisdiction (and the Commission on administrative review) over construction at the Canal Levee.
28. Nothing will change for the people of Rocky Ripple as a consequence of developing the Metro Indianapolis North Flood Protection Project as authorized and conditioned by the subject license. Flood stages in Rocky Ripple would not be raised by construction at the Canal Levee. Circumstances within Rocky Ripple would be neither improved nor worsened by completion of the Metro Indianapolis North Flood Protection Project. Based upon profession engineering analyses, the existing flood-protection conditions for Rocky Ripple are within an acceptable range.[FOOTNOTE A] Stewart Testimony.
29. The design and construction of the Canal Levee satisfy sound and accepted engineering principles. Stewart Testimony.
30. The design and construction of the Canal Levee do not pose unreasonable hazards to life or property. Stewart Testimony and Stewart Affidavit of September 20, 2001 (Respondent's Exhibit C).
31. The portions of the subject license pertaining to the Canal Levee satisfy the requirements of the Flood Control Act.
FOOTNOTE:
A. Danny Orr's frustration with the location of Metro Indianapolis North Flood Protection Project is understandable. If the West Fork Levee were to be improved rather than the Canal Levee, he and the other citizens of Rocky Ripple could have benefited from those improvements. The Commission cannot use the Flood Control Act to second-guess a site selection made by local governmental entities, however, where the selection meets the Act's regulatory standards. Orr's relief must properly rest with his exercise of the democratic process.