There are no material facts in issue. Summary judgment is granted in favor of the Department of Natural Resources and against Gregor King. Granting of this summary judgment also resolves favorably to the Hamilton County Commissioners any claim, in this proceeding, that Gregor King might have against the Hamilton County Commissioners. Issuance of license FW-21,415 is affirmed in favor of the Hamilton County Commissioners with an additional Special Condition 18 to read as follows: Construction must not occur on private property except where lawful access has been obtained on behalf of the Hamilton County Commissioners.
FINDINGS OF FACT AND CONCLUSIONS OF LAW
STATEMENT OF THE CASE
1. At issue in this proceeding is Certificate of Approval for Construction in a Floodway #FW-21,415 (the "license") granted by the division of water (the "Division") of the department of natural resources (the "Department") in favor of the Hamilton County Commissioners under IC 14-28-1 (the "Flood Control Act") and rules adopted at 310 IAC 6-1[FOOTNOTE A] to assist in implementation of the Flood Control Act. The license would authorize the Hamilton County Commissioners to replace the existing reinforced concrete structure carrying 146th Street over Mud Creek, between Prairie Baptist Road and Cyntheanne Road, with a new bridge.
2. The new crossing would consist of a three-span concrete box beam structure with an out-to-out length of 202 feet and a 32-foot clear roadway width to support two lanes of traffic with shoulders of four feet. The structure would be founded on H-piles. The spill through abutments would have two-to-one side slopes armored with riprap placed over geotextile fabric. The abutments and piles would be skewed 35° to align with the stream flow. The bridge and roadway profile would be raised to accommodate the regulatory flood, as defined under 310 IAC 6-1-3(32), without the roadway overtopping.
3. The low concrete for the structure would be at an elevation of 831.38 feet. There would be an excavation about one foot deep on the west overbank immediately beneath the new structure.
4. The new bridge, in respect to the existing bridge, would be extended mostly to the west to keep from interfering with a roadway intersection at Crystal Creek Drive just east of the project.
5. On March 25, 2002, Gregor W. King ("King") initiated the proceeding by correspondence filed with the natural resources commission (the "NRC").
6. This proceeding is controlled by IC 4-21.5 (the "administrative orders and procedures act" or "AOPA") and rules adopted by the NRC at 312 IAC 3-1 to assist in its implementation of the AOPA. Pursuant to 312 IAC 3-1-1(b), an affected person who is aggrieved by a determination of the Department may apply for administrative
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review of the determination under IC 4-21.5 and 312 IAC 3-1.
7. The parties to this proceeding are the Department, the Hamilton County Commissioners, and King.
8. A prehearing conference was conducted in Indianapolis on May 1, 2002. A "Report of Prehearing Conference" was entered on May 2, 2002 to memorialize the agreements, stipulations, and orders made during the conference.
9. One item that drew attention during the prehearing conference was a contention in paragraph (3) of King's March 25, 2002 correspondence. King there urged that the project construction limits should not extend to private property.
10. The attorney for the Hamilton County Commissioners indicated his client agreed to have the license clarify that construction would not occur on private property except where lawful access to the property has been obtained. The lawful access may be the result of an agreement (for example, where rights are purchased by Hamilton County) or by the operation of law (for example, where Hamilton County obtains these rights through exercise of the Power of Eminent Domain).
11. The agreement by the Hamilton County Commissioners, as described in Finding 10, should be made a condition of the license.
12. Also as memorialized by the "Report of Prehearing Conference", the parties agreed and were then ordered to comply with a schedule for filing any motion to dismiss, motion for summary judgment, or similar motion.
13. Substantially in compliance with the schedule, the Department's Memorandum in Support of Motion for Summary Judgment was filed on September 16, 2002; correspondence described as a "motion for summary judgment" was filed by King on September 17, 2002; and, a "Motion for Judgment on the Pleadings" was filed by the Department on October 16, 2002.
SUMMARY JUDGMENT
14. Summary judgment applies to this proceeding under IC 4-21.5-3-23.
15. As provided in pertinent part in IC 4-21.5-3-23(b): "The judgment sought shall be rendered immediately if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits and testimony, if any, show that a genuine issue of material fact does not exist and that the moving party is entitled to judgment as a matter of law. . . . Summary judgment may not be granted as a matter of course because the opposing party fails to offer opposing affidavits or evidence, but the administrative law judge shall make a determination from the affidavits and testimony offered upon the matters placed in issue by the pleadings or the evidence."
16. As provided in pertinent part in IC 4-21.5-3-23(c): "Supporting and opposing affidavits must:
(1) be made on personal knowledge;
(2) set forth facts that are admissible in evidence; and
(3) show affirmatively that the affiant is competent to testify to the matters stated in the affidavit."
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SCOPE OF REVIEW UNDER THE FLOOD CONTROL ACT
17. A state agency has only those powers conferred by the Indiana General Assembly. Powers not within an 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, 651 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); Dyer Baptist Church v. Town of Dyer and DNR, 8 Caddnar 79 (1998); Michigan City Historical Society v. DNR and Francik, 5 Caddnar 169 (1990). Claims that relate to matters beyond an agency's authority are subject to dismissal.
18. For consideration here is a license issued under the Flood Control Act. The Indiana General Assembly at IC 14-28-1-22(e) established the standards the Department must apply in evaluating an application for a license under the Flood Control Act. The director of the Department shall issue a license if the applicant establishes the construction activity will do none of the following:
(1) Adversely affect the efficiency of or unduly restrict the capacity of the floodway.
(2) Constitute an unreasonable hazard to the safety of life or property.
(3) Result in unreasonably detrimental effects upon fish, wildlife, or botanical resources.
The Department in its motion for summary judgment separately addressed each of the three elements of IC 14-28-1-22(e).
ADVERSELY AFFECT THE EFFICIENCY OR UNDULY RESTRICT THE CAPACITY OF THE FLOODWAY
19. With respect to the first element, the NRC adopted 310 IAC 6-1-7(c) which provides that "[r]egulatory flood profiles shall be determined using standard engineering techniques acceptable" to the NRC. The NRC has repeatedly applied HEC-2 computer hydraulic modeling to determine whether a proposed project will adversely affect the efficiency or unduly restrict the capacity of the floodway. United Refuse v. DNR and Izaac Walton League, 5 Caddnar 46, 47 (1989); Brown v. DNR and Peabody Coal Company, 6 Caddnar 136, 139 (1993); Boyd v. DNR and Floyd County Commissioners, 8 Caddnar 5 (1997).
20. Matt Patton, Hydraulic Engineer, performed the Department's review of whether the project would adversely affect the efficiency of, or unduly restrict the capacity of the floodway. Patton considered the applicant's HEC-RAS modeling of the site analyzing the new bridge information. He concluded that the project, in conjunction with any other previously approved or currently proposed project located in the floodway near the site, would create a maximum surcharge of 0.14 feet upstream of the proposed project. He determined the proposed project would not create a significant surcharge of the elevations for the regulatory flood on Mud Creek.
21. Kenneth E. Smith, Professional Engineer and Assistant Director for the Division, reviewed the information provided by the engineers representing the Hamilton County Commissioners and the written analysis by Matt Patton. Smith determined engineers for the Hamilton County Commissioners have
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clearly proven the proposed project will not adversely affect the efficiency of or unduly restrict the capacity of a floodway. Affidavit of Kenneth E. Smith, PE (September 16, 2002).
22. King offers no opposing affidavit or evidence to support the proposition that the license would adversely affect the efficiency of or unduly restrict the capacity of a floodway.
23. There is no material fact in dispute with respect to the first element of section 22(e). The Department is entitled to summary judgment against King with respect to IC 14-28-1-22(e)(1).
UNREASONABLE HAZARD TO THE SAFETY OF LIFE OR PROPERTY
24. The second element of section 22(e) is that a project must not constitute an unreasonable hazard to the safety of life or property. The NRC adopted 310 IAC 6-1-3(39) to assist in its implementation of the statutory standard. "Unreasonable hazard to the safety of life or property" means a condition which is likely to be caused by the design or construction of a project and which is likely to result during a regulatory flood in either of the following: (A) The loss of human life. (B) Damage to public or private property to which the [license] applicant has neither ownership nor a flood easement."
25. Matt Patton, Hydraulic Engineer, also performed the Department's analysis concerning this requirement. Based upon the analysis, he concluded the "project in conjunction with any previously approved or currently proposed projects located near this site will not pose an unreasonable hazard to the safety of life or property."
26. Similarly, Kenneth E. Smith determined engineers for the Hamilton County Commissioners have clearly proven the proposed project will not constitute an unreasonable hazard to the safety of life or property.
27. The Department urges that because the proposed project would result in an increase in the elevation of floodwaters of less than 0.15 feet during a regulatory flood, "the project is NOT an 'unreasonable hazard to the safety of life or property.'" Emphasis supplied by the Department.
28. The interpretation offered by the Department in Finding 27 would render section 22(e)(2) a nullity since any project that satisfied section 22(e)(1) would, per se, also satisfy section 22(e)(2). General principles of statutory construction require that the NRC must seek to give meaning to every word and phrase and cannot presume the Indiana General Assembly intended to enact a nullity or a meaningless statute. Indiana Waste Systems of Indiana, Inc. v. Indiana Dept. of State Revenue, 633 N.E.2d 359 (Ind. Tax 1994). The presumption is the Indiana General Assembly did not intend to enact a superfluous statutory provision, and the entity interpreting a statute must endeavor to give meaning to every word in the statute. Mynsberg v. Department of State Revenue, 716 N.E.2d 629 (Ind. Tax 1999). Statutes relating to the same subject matter must be construed in pari materia in order to give effect to every provision and so that no provision is rendered a nullity. Lesch v. DNR and Town of Dune Acres, 8 Caddnar 28 (1998) and Collins v. State, 415 N.E. 2d 46, 56, 275 Ind. 86, (Ind. 1981). The Department's proposed interpretation of IC 14-28-1-22(e)(2) would be inconsistent with these principles of statutory construction.
29. Just as importantly, the interpretation is inconsistent with public policy. A floodway project could be envisioned,
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for example, that would include a large unguarded hole with sheer slopes located within a population center. The hole is very unlikely to raise flood stages; it might even improve the capacity of the floodway. The hole would, however, have the factual and legal potential for posing an unreasonable hazard to the safety of life or property. Similarly, a dam might be designed that would have an acceptable impact upon flood stages yet pose a serious safety hazard.
30. IC 14-28-1-22(e)(2) is what it says. The provision is a legislative standard protecting against floodway construction likely to pose an unreasonable hazard to the safety of life or property, regardless of whether the hazard also impacts flood stages.
31. Even so, King offers nothing to support a finding that the project would pose a safety hazard to life.
32. King does argue the project could adversely impact regulated or private drains. Authority for drainage rests primarily at the municipal and county level and not with the Department. King's position might conceivably also form the basis for relief under the Flood Control Act, if a specific drain were identified and if he were to show likely harm that would be personal to him based upon exercise of the license. He does neither. His argument is based upon unspecific and unsupported allegations.
33. The only affidavits or other factual matters in the record are that there would be no unreasonable hazard to the safety of life or property.
34. There is no material fact in dispute with respect to the second element of section 22(e). The Department and the Hamilton County Commissioners are entitled to summary judgment against King with respect to IC 14-28-1-22(e)(2).
UNREASONABLY DETRIMENTAL EFFECTS UPON FISH, WILDLIFE, OR BOTANICAL RESOURCES
35. The third element of section 22(e) is that a project must not result in unreasonably detrimental effects upon fish, wildlife, or botanical resources. The NRC adopted 310 IAC 6-1-3(38) to assist in its implementation of the statutory standard. As provided in the referenced rule action: "Unreasonably detrimental effects upon fish, wildlife, or botanical resources" refers to damage to fish, wildlife, or botanical resources that is found by the DNR director "based upon the opinion of a professional qualified to assess the damage and which:
(A)creates a condition where recovery of the affected resources is not likely to occur within an acceptable period; and
(B) cannot be mitigated through the implementation of a mitigation plan approved by the director."
36. Kent Hanauer, Environmental Biologist for the Department's Division of Fish and Wildlife, performed the Department's analysis concerning this requirement. He visited the site and issued a memorandum to Lynn Allen by electronic mail including his environmental assessment and recommendation. Hanauer determined that just over 1/4 of an acre would be impacted by the project, that the stream demonstrated a low to moderate quality, and that losses suffered by fish, wildlife, and botanical resources would be within
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a reasonable range.
37. King argues the project will result in sediment reaching the stream, but he offers no opposing affidavit or evidence that the likely consequences are unreasonable harm (or, for that matter, even measurable harm) to fish, wildlife, or botanical resources.
38. There is no material fact in dispute with respect to the third element of section 22(e). The Department is entitled to summary judgment against King with respect to IC 14-28-1-22(e)(3).
OTHER ARGUMENTS BY CLAIMANT
39. Other arguments offered by King are outside the scope of permissible review under the Flood Control Act.
40. King urges that Special Condition 16 should be set aside. As set forth in the license, Special Condition 16 specifies "the proposed channel clearing must be maintained at the same shape and grade in perpetuity as shown on the plans dated February 19, 2002."
41. King argues the "channel clearing has grown from 'necessary' or 'recommended' to a rumored 'requirement'. I find no direct statute stating that channel clearing is required. Channel clearing has been integrated to achieve the required bridge/channel clearance of 2,110 cu. ft./sec. of flood water which indicates that the bridge might have been designed six inches (proposed channeling depth) too low, because water always seeks its own level (witness: the creek speaks!). The perpetuity condition that was attached and never initially proposed nor its reason ever legitimately explained, is suspect of being a ploy to gain diverted funding at taxpayers expense as local government requires."
42. Channel clearing is a function of the design chosen by the engineers for the Hamilton County Commissioners. Special Condition 16 helps assure that the design will function as proposed, not only upon construction, but also in the future. Channel clearing is not mandated by the Flood Control Act, but in proper circumstances, the Department may license channel clearing where sought by the applicant. King offers no reason under the Flood Control Act why the Department cannot here authorize the Hamilton County Commissioners to pursue channel clearing.
43. Whatever credence might be accorded to King's theory of a tax conspiracy, it is beyond the pale of the NRC's regulatory authority under the Flood Control Act.
FOOTNOTE
A. Since the filing of the license application, 310 IAC 6-1 was repealed and recodified at 312 IAC 10. Reference here is to 310 IAC 6-1, but the result would be the same under 312 IAC 10.