CADDNAR

[CITE: Inland Marina, Inc. v. DNR, 9 CADDNAR 188 (2004)]

FINAL ORDER (BASED ON FINDINGS)

The actions of the Vanderburgh County Drainage Board are sufficient to establish Inland Marina, Inc. as its agent for the maintenance of Eagle Slough Drain in the manner that the drain was configured and constituted on December 22, 2003. As the agent for the Vanderburgh County Drainage Board, Inland has standing to exercise the exception from the Flood Control Act that is provided by IC 14-28-1-22(b)(1).

Inland Marina, Inc. must conduct its activities under the exception consistently with this Final Order, including the documents incorporated by reference. Administrative review of the Subject License is mooted by the determination Inland has standing to exercise the exception under IC 14-28-1-22(b)(1), and the request for review is now dismissed for mootness.

Dismissal of the request for administrative review does not preclude Inland Marina, Inc. from seeking another Flood Control Act license, however, if Inland later determines work is needed for an area or at an elevation that is within a floodway but outside the parameters of the Eagle Slough Drain.

FINDINGS

(1) Inland Marina, Inc. ("Inland") operates a marina where Eagle Slough intersects the Ohio River in Vanderburgh County. In this location, Eagle Slough is an "open regulated drain" as the phrase is applied in IC 36-9-27 (the "Drainage Code"). On January 14, 2003, Inland applied to the Department of Natural Resources (the "Department") for a license under IC 14-28-1 (the "Flood Control Act") to perform dredging on Eagle Slough for a ten-year period concurrent with a license granted to Inland by the U.S. Army Corps of Engineers. The Department assigned, under the Flood Control Act, Application Number FW-22,198 to the license (the "Subject License").

(2) Inland sought the Subject License to authorize dredging of the section of Eagle Slough running along the marina that is approximately 1,050 feet long and 200 feet wide "to a depth of approximately 8 to 12 feet below the Ohio River's normal pool stage of 341.8'". A fisheries biologist assessed the marina location and reported that spring dredging could adversely impact fish spawning activities. The Department granted the Subject License but limited its duration to two years and included several conditions, including that Inland could not "work in the waterway from April 1 through June 30 without the prior written approval of the [Department's] Division of Fish and Wildlife."

(3) Inland, by Crane Environmental Services, LLC ("Crane"), sought administrative review of the Subject License. Inland requested a waiver of condition number 2 that restricted work between

[VOLUME 9, PAGE 189]

April and June. Inland argued channel dredging was needed in order for pleasure boaters to enter the marina. After Inland requested the waiver, the Department determined that it could properly allow Inland three days during the spring to perform dredging. On May 1, 2003, the Department approved Inland's request to waive the spring restriction for three days between April and June for the hydraulic dredging of an area approximately 250 feet long and 200 feet wide at the entry to the marina from the Ohio River.

(4) On May 15, 2003, Inland by Crane, argued in a letter to the Department that because Eagle Ditch was an open regulated drain, Inland was not required to obtain the Subject License. Inland asserted its proposed dredging activity constituted a "reconstruction or maintenance project" under the Drainage Code, and IC 14-28-1-22(b)(1) excepted Inland from the Flood Control Act. This subdivision provides an exception from the core licensure section of the Flood Control Act for:

A reconstruction or maintenance project (as defined in IC 36-9-27) on a stream or open regulated drain if the total length of the stream or open drain is not more than ten (10) miles.

(5) The application of this exception was considered during a telephone status conference held on September 23, 2003. Following informal argument by the parties, the administrative law judge indicated Inland could pursue either of two approaches. First, it could determine if the Vanderburgh County Drainage Board would sponsor the dredging activity. If so and if any procedures were satisfied for an activity by a drainage board on a regulated drain in a floodway, the exemption would apply. A second alternative was that the parties could brief the applicability of IC 14-28-1-22(b)(1). Inland selected the second alternative. A briefing schedule was established, and the parties fully briefed their positions.

(6) On October 10, 2003, the administrative law judge made an "Entry Regarding Application of the Exemption from the Flood Control Act for Reconstruction and Maintenance Projects on Regulated Drains". Pertinent portions of the entry are incorporated here.

(7) Although they may apply to the same riparian geography, the Drainage Code sometimes runs at cross-purposes to the Flood Control Act. The Drainage Code is administered at the local level and seeks to assure an adequate provision for drainage. The Flood Control Act is administered at the state level and seeks to assure the protection of health, safety, and environmental concerns.

(8) The Indiana Supreme Court reconciled these cross-purposes in DNR v. Porter County Drainiage Bd., 576 N.E.2d 587 (Ind. 1991). The Court determined an ambiguity in the antecedent to IC 14-28-1-22(b)(1) should be interpreted to grant environmental oversight to the Department, rather than to achieve an exception in favor of a drainage board. When the authority of a local drainage board overlaps with that of a state regulatory agency, the state agency that is in the better position to judge the larger effects of the situation should control. The Department's "employees have been trained to make educated determinations about the ramifications of dredging and construction on natural resources, while the drainage board's expert has no such

[VOLUME 9, PAGE 190]

training."

(9) Following the decision in DNR v. Porter County Drainage Bd., the Indiana General Assembly took steps to help coordinate the activities of the drainage boards and the DNR. Most notably, in 1995, amendments were made concurrently to the Flood Control Act and the Drainage Code in an enactment "concerning the environment". P.L. 180-1995. The statutory ambiguity was resolved that had been the genesis of the controversy in DNR v. Porter County Drainage Bd.

(10) A new legislative approach was developed for activities where a drainage board must obtain a license under the Flood Control Act, in other words those activities not excepted from regulation by IC 14-28-1-22(b)(1). A site view was required in advance of licensure action to involve a "team" consisting of representatives of the drainage board, the Department, the Indiana Department of Environmental Management, and, if applicable, a local soil and water conservation district. IC 36-9-27-53.5.

(11) With the enactment of P.L. 180-195, the Indiana General Assembly intended to coordinate a drainage board's implementation of the Drainage Code with the Department's implementation of the Flood Control Act. Drainage board sponsorship in exercise of the exception under IC 14-28-1-22(b)(1) supports this coordinated approach. Social and political accountability for floodway activities is achieved that would not be supported by giving private persons unlimited access to the exception. A drainage board enjoys expertise in understanding when maintenance or reconstruction of a regulated drain is needed, and exercise of the expertise is tempered by experience with the parameters of the exception and the mandates of the Flood Control Act. The likelihood is lessened that an activity would inadvertently exceed the limits of the exception. Having sponsorship by a drainage board in applying IC 14-28-1-22(b)(1) reduces the likelihood that damages would occur to the interests protected by the Flood Control Act.

(12) The administrative law judge's October 10, 2003 entry concluded that only a drainage board, or the designated agent for a drainage board, had standing to exercise the exception from the Flood Control Act that is provided by IC 14-28-1-22(b)(1). A drainage board or its agent may perform a reconstruction or maintenance project (as defined in IC 36-9-27), without obtaining a license under IC 14-28-1-22, on a stream or open regulated drain if the total length of the stream or open drain is not more than ten miles. All areas to be dredged must be within the boundaries of the regulated drain.

(13) The administrative law judge found that in the absence of a showing that Inland was an agent for the Vanderburgh County Drainage Board, the company would not qualify for the exception. The record on October 10, 2003 did not establish the requisite agency relationship, so Inland did not qualify for the exception provided by IC 14-28-1-22(b)(1).

(14) A telephone status conference was conducted on December 18, 2003. The Department, the Vanderburgh County Drainage Board (operating primarily through the Vanderburgh County Surveyor), and Inland reported they had entered private negotiations. There was no dispute that Eagle Slough was less than ten miles long. They agreed upon specifications to help clarify the physical parameters of the legal drain for Eagle Slough. As agreed

[VOLUME 9, PAGE 191]

by the parties, the documents were memorialized in the following documents that were filed with the Commission:

December 1, 2003 letter from Bill Jeffers, Vanderburgh County Surveyor, to Administrative Law Judge identifying Jeffers's role as technical advisor to the Vanderburgh County Drainage Board with enumeration of services provided to the Drainage Board by Inland and description of serviceable maintenance at the site of Eagle Slough.

November 25, 2003 letter from Ellen Crane to Douglas McDonald (subsequently forwarded to the Commission) of the site that includes:

(A) Photocopy of aerial photo of Eagle Slough at its confluence with the Ohio River (September 27, 1953).
(B) Blow-up of U.S.G.S. Quad depicting Eagle Slough at its confluence with the Ohio River (1957).
(C) Photocopy of aerial photo of Eagle Slough at its confluence with the Ohio River (July 22, 1966).
(D) Blow-up of U.S.G.S. Quad depicting Eagle Slough at its confluence with the Ohio River (1961).
(E) "Planimetric from Aerial" of Eagle Slough and the adjacent marina with notes (March 27, 1990).
(F) Exhibit Map of Eagle Slough Legal Drain, West End (Vanderburgh County Surveyor: December 1, 2003).
(G) December 12, 2003 letter from Douglas McDonald, P.E., L.S., Chief Deputy Vanderburgh County Surveyor, to Jim Hebenstreit, Department's Division of Water, with revised cross-section and plan view of Eagle Slough legal drain.

The documents are, in all parts, incorporated by reference into this Final Order.

(15) During the December 18, 2003 telephone status conference, the Vanderburgh County Surveyor said the Vanderburgh County Drainage Board was vitally interested in having Inland maintain Eagle Slough drain on behalf of the Drainage Board. Inland stated the work needed for maintaining access to the marina could ordinarily be confined to the drain. The parties agreed that, to the extent Inland was performing maintenance for the Drainage Board, within the physical parameters of the legal drain, those activities were exempted from the Flood Control Act by IC 14-28-1-22(b)(1). If Inland found it necessary to perform work outside the legal drain, a permit would be required. (16) In addition, the parties agreed that the agency relationship between Inland and the Vanderburgh County Drainage Board needed to be memorialized. To this end, on December 30, 2003, Madelyn Grayson, Vanderburgh County Auditor's Office, provided the Commission with correspondence that included the following enclosures:

(A) Draft Minutes of Vanderburgh County Drainage Board Meeting that was held on December 22, 2003.
(B) "Declaration of Agent" resolution by Vanderburgh County Drainage Board in favor of Inland that was entered on December 22, 2003.

[VOLUME 9, 192]

(16) These documents are, in all parts, incorporated by reference into this Final Order. In addition, implementation portion of the Declaration of Agent is excerpted:

The Vanderburgh County Drainage Board does declare Inland Marina, Inc. to be an un-contracted agent of the Board for the annual and continuous maintenance dredging of that portion of Eagle Slough as exists now, and by past and future official actions of the Board, beginning immediately on the westward side of Waterworks Road, thence through and from Catfish Pond westward and to the Mouth of Eagle Slough at the Ohio River, and in accordance with the flowline, channel width, course, and other particulars established by the official reconstruction plans for Eagle Slough adopted by the Board, and as depicted on contract documents, maps, drawings, and aerial photographs associated with the reconstruction file or subsequently attached to the reconstruction file by the Vanderburgh County Surveyor and approved by the Board.

(17) On February 16, 2004, the administrative law judge entered a "Supplement to Report of Telephone Status Conference". The entry acknowledged the documents that had already been filed, including the draft minutes of the December 2003 Vanderburgh County Drainage Board Meeting. The entry concluded: "Unless otherwise requested by a party, upon receipt of an approved set of minutes for the December 22, 2003 meeting of the Board, the administrative law judge will enter a final disposition of this proceeding."

(18) On September 8, 2004, Crane filed the pertinent portions of the approved minutes of the December 22, 2003 meeting of the Vanderburgh County Drainage Board. William J. Fluty, Vanderburgh County Auditor, certified the document on August 13, 2004. The document is incorporated by reference into this Final Order.