CADDNAR

[CITE: Save Our Rivers, et al. v. Guenther, Ford & DNR, 10 CADDNAR 213 (2006)]

 

[VOLUME 10, PAGE 213]

 

Cause #:05-083W

Caption: Save Our Rivers, et al. v. Robert Guenther, William Ford and DNR

Administrative Law Judge: Lucas

Attorneys: Mottley (pro se); Ippoliti; Beckwith; White

Date: February 21, 2006

 

[NOTE: See also Save Our Rivers, et al. v. Guenther, Ford and DNR, In re Broz, 10 CADDNAR 142 (2005).]

 

 

FINAL ORDER OF SUMMARY JUDGMENT

 

Summary judgment is granted in favor of the Respondents, Robert Guenther, William Ford, and the Department of Natural Resources, and against the Claimants, Save Our Rivers, Save Our Lane & Environment, Don Mottley, Kimberly Peerman, Kenneth S. Phillips, Sharon Phillips, Elbert Matthew and Joyce A. Matthew.  There is no genuine issue as to any material fact.  Issuance by the Department of Natural Resources of a license under the Flood Control Act, more particularly described by application FW-23,135, is affirmed in total.  Summary judgment is made without prejudice to the Claimants to seek appropriate redress, in a forum other than before the Natural Resources Commission, for harm that is claimed during flood of lesser elevation than for a regulatory flood.

 

 

FINDINGS OF FACT AND CONCLUSIONS OF LAW

 

I.                   Findings of Fact and Conclusions of Law

 

A.        Statement of the Case and Jurisdiction

 

1.      On May 9, 2005, Save Our Rivers, Save Our Land & Environment, Don Mottley, Kim Peerman, Sharon Phillips, Elbert Mathew and Joyce A. Mathew (the “Claimants”) filed a “Petition for Review” (the “Petition”) with the Natural Resources Commission (the “Commission”).

 

2.      The Petition sought administrative review of the issuance by the Department of Natural Resources (the “DNR”) of an after-the-fact license (the “license”) under IC 14-28-1 (the “Flood Control Act”) to William Ford and Robert Guenther (“Ford and Guenther”).

 

3.      The Commission has adopted rules at 312 IAC 10 to assist with implementation of the Flood Control Act.

 

[VOLUME 10, PAGE 214]

 

4.      The license authorized Ford and Guenther to reconstruct and repair 12,755 feet of a levee and floodgate to partially protect, from the adverse of small to moderate floods, their farm fields in Posey County, Indiana.

 

5.      The DNR is an “agency” under IC 4-21.5 (sometimes referred to as the “Administrative Orders and Procedures Act” or “AOPA”) and is subject to AOPA.

 

 

6.      The DNR is the agency that is responsible for administration of the Flood Control Act.

 

7.      The Petition initiated a proceeding that is governed by AOPA.

 

8.      The Commission is the “ultimate authority” for the DNR under AOPA.  IC 14-10-2-3.

 

9.      As provided in IC 4-21.5-3-32, an agency is required to index final orders.  The agency may rely upon indexed orders as precedent. 

 

10.  In November 1988, the Commission adopted “Caddnar” as the index of agency decisions anticipated in AOPA.  See now Establishment of Division of Hearings; Index of Final Adjudicative Agency Decisions; Transcript Fees; Natural Resources Commission, 26 Ind. Reg.1375 (Jan. 1, 2003).

 

11.  The Commission adopted rules at 312 IAC 3-1 to assist with its implementation of AOPA.

 

12.  Consistent with AOPA, 312 IAC 3-1, and 14-10-2-2, the Commission appointed Stephen L. Lucas as the Administrative Law Judge.

 

13.  The Administrative Law Judge scheduled an initial prehearing conference for Evansville, Indiana on June 17, 2005.  Written notice of the prehearing, with a copy of the Petition attached, was served upon the Claimants, Ford and Guenther, and the DNR (collectively, the “Parties”).  The prehearing conference was conducted as scheduled with the Parties attending, in person or by an attorney.

 

14.  The Commission has jurisdiction over the subject matter and over the persons of the Parties.

 

15.  A companion proceeding was initiated and was subsequently consolidated with the instant proceeding.  A final disposition of the companion proceeding was entered by the Commission in Save Our Rivers, et al. v. Guenther, Ford, and DNR, In re Broz, 10 Caddnar 142 (2005), and it is not further considered in these Findings.

 

[VOLUME 10, PAGE 215]

 

B.                 Summary Judgment and Standard of Review

 

16.  By agreement of the Parties, a telephone status conference was scheduled for July 22, 2005.  The telephone status conference was conducted as scheduled. 

 

 

17.  During the July 22, 2005 conference, Ford and Guenther expressed an intention to move for summary judgment, possibly by August 5, 2005.  The Claimants urged the proceeding should not move so quickly because they had yet to obtain floodway modeling.  Ford and Guenther responded that the Claimants should have completed this process before filing their petition for administrative review.  The Administrative Law Judge reflected that the proceeding needed to achieve timely closure, but particularly since for consideration was an after-the-fact permitting application, the Claimants were entitled to a reasonable period to receive and consider expert opinions.  No schedule was established for filing motions for summary judgment.

 

18.  For an AOPA proceeding, summary judgment is governed by IC 4-21.5-3-23.  As provided in 312 IAC 3-1-10, a Commission administrative law judge may apply the Trial Rules where not inconsistent with AOPA.  Reference may generally be made to Trial Rule 56 and to reported decisions based upon Trial Rule 56.  In those instances where Trial Rule 56 is inconsistent with IC 4-21.5-3-23, however, the latter would control. Kingdom Prairie Farm & Preserve v. Department of Natural Resources, 10 Caddnar 167 (2005).

 

19.  On September 2, 2005, “Ford's and Guenther's Motion for Summary Judgment” and the “Brief in Support of Ford's and Guenther's Motion for Summary Judgment” were filed.

 

20.  On September 6, 2005, the Administrative Law Judge entered an order to establish a schedule for the completion of summary judgment motions.  The Claimants and the DNR were provided until October 17, 2005 (45 days) to respond to the motion by Ford and Guenther or to file a counter-motion or cross-motion.  Ford and Guenther were provided until October 31, 2005 (14 days) to reply to a response, and any Party was provided until the same date to file a response to a counter-motion or cross-motion. 

 

21.  On September 23, 2005, the Claimants filed a “Request for an Additional 30 Day Extension to Respond to Ford’s and Guenther’s Motion for Summary Judgment”. 

 

22.  Although the Ford and Guenther expressed qualified resistance to the extension, the Administrative Law Judge granted the request on October 5, 2005.  The Claimants and the DNR were provided until November 17, 2005 to respond to or to file a counter-motion or cross-motion.  Ford and Guenther were provided until December 1, 2005 to reply to a response, and any Party was provided until the same date to file a response to a counter-motion or cross-motion.  The October 5 order stated that the grant of a subsequent extension of time was highly unlikely.

 

[VOLUME 10, PAGE 216]

 

23.  On November 15, 2005, Kimberly Peerman, Kenneth S. Phillips, Sharon Phillips, Elbert Matthew and Joyce A. Mathew (collectively, the “Peerman Claimants”) filed a “Motion for Extension of Time”.  The Peerman Claimants indicated they retained an attorney on November 8, 2005, and their attorney needed an additional 30 days to investigate and prepare the responsive pleading.  Don Mottley, Save Our Rivers and Save Our Land & Environment (collectively, the “Mottley Claimants”) subsequently filed a similar request for extension of time.  Ford and Guenther and the DNR opposed the motions. 

 

 

24.  Over the objections of Ford and Guenther and the DNR, and despite indicating on October 5 that another extension was highly unlikely, the Administrative Law Judge granted a final extension of time. The Claimants and the DNR were provided until December 8, 2005 to respond to or to file a counter-motion or cross-motion.  Ford and Guenther were provided until December 29, 2005 to reply to a response, and any Party was provided until the same date to file a response to a counter-motion or cross-motion.

 

25.  With the “Department’s Response to Respondents Ford and Guenther’s Reply Brief and Motion for Summary Judgment” filed on December 28, 2005, the DNR has joined in Ford and Guenther's motion for summary judgment.

 

26.  Under Trial Rule 56(C), 30 days is the ordinary period by which to respond to a motion for summary judgment.  Summary judgment under IC 4-21.5-3-23 seemingly anticipates a shorter period for response.  For the instant proceeding, the Claimants have been accorded more than 90 days to prepare their responses.  This duration was more than sufficient to allow the Claimants to formulate their responses.

 

27.  The purpose of summary judgment is to terminate litigation about which there is no genuine factual dispute and which may be determined as a matter of law.  Summary judgment should be granted if the designated evidentiary material shows that there is no genuine issue of material fact and the moving party is entitled to summary judgment as a matter of law. Orem v. Ivy Tech State College, 711 N.E.2d 864, 867 (Ind. Ct. App. 1999), rehearing denied.

 

28.  A party moving for summary judgment has the burden of showing there is no genuine issue of material fact. Marsym Development Corp. v. Winchester Econ. Devel. Comm'n, 447 N.E.2d 1187 (Ind. App. 1983).  A party or parties moving for summary judgment have the burden of proof with respect to summary judgment, regardless of whether it or they would have the burden in an evidentiary hearing. Regina Bieda v. B & R Development and DNR, 9 Caddnar 1 (2001). 

 

[VOLUME 10, PAGE 217]

 

29.  As the moving parties, Ford and Guenther here have the burden of proving they are entitled to summary judgment against the Claimants and in support of the DNR determination to grant the license.

 

 

C. Application of the Flood Control Act to the License Application

 

 

30.  Generally, an Indiana state administrative agency has only those powers conferred on it by the Indiana General Assembly.  Powers not within the legislative grant 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).

 

31.  The Indiana General Assembly has empowered the DNR to evaluate the license application for compliance with the Flood Control Act.  In particular, IC 14-28-1-22(e) and IC 14-28-1-22(f) provide:

 

    (e) An applicant must receive a permit from the director [of the DNR] for the work before beginning construction.  The director shall issue a permit only if in the opinion of the director the applicant has clearly proven that the structure, obstruction, deposit, or excavation will do any 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.

 

     (f) In deciding whether to issue a permit under this section, the director shall consider cumulative effects of the structure, obstruction, deposit, or excavation.  The director may incorporate in and make a part of any order of authorization conditions and restrictions that the director considers necessary for the purpose of [the Flood Control Act].

 

32.  In their motion for summary judgment, Ford and Guenther present evidence concerning each of the three items of IC 14-28-1-22(e), as well as concerning cumulative effects under IC 14-28-1-22(f).

 

33.  According to IC 4-21.5-3-23(f), the Claimants must respond to Ford and Guenther’s motion for summary judgment “with affidavits or other evidence permitted under” IC 4-21.5-3-23 “and set forth specific facts showing there is a genuine issue in dispute.”

 

34.  The four items referenced in Finding 31 and Finding 32, and the Claimants’ responses to them, are considered separately.

 

[VOLUME 10, PAGE 218]

 

35.  The first item is IC 14-28-1-22(e)(1) and whether the activity authorized by the license would adversely affect the efficiency of or unduly restrict the capacity of the floodway.

 

36.  As applicable to the instant proceeding:

 

   “Adversely affect the efficiency of, or unduly restrict the capacity of, the floodway” means an increase in the elevation of the regulatory flood of at least fifteen-hundredths (0.15) of a foot as determined by comparing the regulatory flood elevation under the project condition to that under the base condition.

 

312 IAC 10-2-3.

 

 

37.  “Base condition” means the condition of the flood plain on January 1, 1973, but without any unauthorized dam or levee. If an activity after December 31, 1972, lowered the regulatory flood profile, the flood plain under the lower profile is the base condition.  312 IAC 10-2-5.

 

38.  “Regulatory flood” means a flood having a one percent (1%) 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 or the 100-year frequency flood.  312 IAC 10-2-35.

 

39.  The current definition of “regulatory flood" is harmonious with the statutory structure of other provisions within the Flood Control Act.  Illustrative is IC 14-28-1-24(d)(2).  The definition of “regulatory flood" is also consistent with the definition used by the DNR since at least 1974.  See, formerly, Flood Hazard Area Rule No. FPM-1, Sec. 3 filed March 18, 1974 and as later codified at 310 IAC 6-1-3.

 

40.  In support of their motion for summary judgment with respect to whether the construction approved under the license would “[a]dversely affect the efficiency of or unduly restrict the capacity of the floodway,” Guenther and Ford present the affidavit of Henry Nodarse.

 

41.  Henry Nodarse is a registered professional engineer in Indiana and five other states.  He has a Bachelor of Engineering degree from Dartmouth College in New Hampshire and a Master of Science degree in civil engineering from Northeastern University in Massachusetts.  He passed the CFM Certification Examination to become a Certified Floodplain Manager in September 2002, which authorized his registration with the Association of State Floodplain Managers as a Certified Floodplain Manager.  He has significant experience in drainage and floodway projects.  Affidavit of Henry Nodarse (August 19, 2005), p. 1.

 

[VOLUME 10, PAGE 219]

 

42.  In his capacity as a Project Engineer at Bernardin, Lochmueller & Associates (“BLA”) of Evansville, Nodarse prepared the application for the license.  According to BLA’s surveys, the low point in the levee system protecting Ford and Guenther’s properties is 373.46 feet MSL on the Whitmore Levee.  The elevation at the top of the levee at the intersection of the levee under the license and the Whitmore Levee is 374.85 MSL.  One of the next lowest points in the levee system is at the place where Griffin Road passes through the levee under the license in the segment adjacent to Ford Slough, where the elevation is 375.81 feet MSL.  These elevations were not changed by construction of the levee or the floodgate under the terms of the license.  When the floodgate is closed and the floodwaters reach an elevation of 373.46 feet MSL, Ford and Guenther’s fields will begin to flood.  Nodarse Affidavit at pp. 3 and 4.

 

43.  The regulatory flood elevation at Ford’s and Guenther’s properties is 382 feet MSL, or approximately 8.5 feet above the 373.46 MSL elevation at which their properties would begin to flood with the levee and floodgate, as authorized by the license, in place. “[I]t is inconceivable, in my opinion, and based on my many experiences in performing computer modeling of much smaller elevation differences,” that the authorized levee “could raise a regulatory flood elevation of 382 feet MSL at all, let alone by 0.15 of a foot to 382.15 feet MSL.  If and when a regulatory flood occurs in the area of Ford’s and Guenther’s properties,” the levee authorized by the license would be only a small “bump” on the bottom of a lake covering at least three square miles.  In most places, the water would be six to eight feet above the level of Ford’s and Guenther’s farms and would be some 30 feet deep in the portion of the floodway that encompasses the Wabash River channel.  Nodarse Affidavit at pp. 4 and 5.

 

44.  The insignificance of the levee authorized by the license, as compared to the regulatory flood, highlights that the levee system's function is not to affect a regulatory flood.  In the area of Ford’s and Guenther’s properties, the levee authorized by the license is rarely more than three or four feet higher than the ground it protects.  The levee system never was intended to hold back a regulatory flood or even a flood nearly as large as a regulatory flood.  The system is intended to “protect only against small to moderate floods, at best.”  Nodarse Affidavit at p. 5.

 

45.  The Claimants respond to the Nodarse Affidavit by providing correspondence from Siavash E. Beik dated December 6, 2005.

 

46.  Siavash E. Beick is a professional engineer, licensed in Indiana, and is a Certified Floodplain Manager.  He is the Head of the Water Resources Department of Christopher B. Burke Engineering, Ltd. of Indianapolis.

 

47.  Beik writes that based on DNR calculations, the levee authorized by the license “would be overtopped by approximately 3.35 to 5.8 feet of floodwater” during the regulatory flood. “Based on the analysis performed by others to date, we agree the impact of the levee and flood control structure would be negligible” during a regulatory flood.  Siavash E. Beick letter of December 6, 2005, p. 3.

 

[VOLUME 10, PAGE 220]

 

48.  There is no genuine issue of material fact with respect to the application of IC 14-28-1-22(e)(1).  The construction activities authorized by the license do not adversely affect the efficiency of or unduly restrict the capacity of the Wabash River floodway during a regulatory flood.

 

49.  The second item for consideration is whether the construction activities authorized by the license would result in an unreasonable hazard to the safety of life or property under IC 14-28-1-22(e)(2).

 

 

50.  As provided in 312 IAC 10-2-40:

 

   “Unreasonable hazard to the safety of life or property” means a condition that is likely to:

(1) be caused by the design or construction of a project; and

(2) result during a regulatory flood in either:

            (A) the loss of human life; or

            (B) damage to public or private property to which the license applicant has neither ownership nor a flood easement.

 

51.  In support of their motion for summary judgment with respect to whether the construction approved under the license would “[c]onstitute an unreasonable hazard to the safety of life or property,” Guenther and Ford present the affidavit of Thomas H. Cervone.

 

52.  Thomas H. Cervone is a Principal and Chief of Environmental Services for BLA.  He holds a doctorate degree in biology (including post-doctorate research) from St. Bonaventure University in New York and a Bachelor of Science in biology from Loch Haven State University in Pennsylvania.  The U.S. Army Corps of Engineers lists Cervone as a wetland delineator.  He has also supervised or participated in many environmental impact studies, including studies for the State of Indiana to determine the effects on fish, wildlife, and botanical resources of the proposed construction of Interstate 69 between Evansville and Indianapolis, Indiana.  Affidavit of Thomas H. Cervone (August 22, 2005), p. 1.

 

53.  More notably with regard to consideration of IC 14-28-1-22(e)(2), Cervone made observations and conclusions with respect to late 2004 and early 2005 flooding along the Wabash River in Posey County.  According “to the U.S. Weather Service, the area of Illinois and Indiana drained by the Wabash River experienced approximately 12 inches of rain and snow melt from late December 2004 through mid-January 2005, including 2.5 inches of rain in the New Harmony area in the week of January 3, 2005.  This rainfall and snow melt caused the largest flood in the area in over 50 years.”  Cervone reflected additionally, however, that the flood “did not come close to approaching the level” of the regulatory flood.  Cervone Affidavit, p. 7.

 

[VOLUME 10, PAGE 221]

 

54.  Cervone attached a videotape recording to his Affidavit which he indicates “shows that flooding began on Friday, January 7, 2005.  By Sunday evening, January 9, 2005, the flood had reached the point where it had flowed over the top of the low point of the Whitmore Levee and started flooding Ford's and Guenther's properties from the southwest.  By early Monday, January 10, 2005, water had overtopped Griffin Road,” and the levee authorized by the license “had begun to flood Ford's and Guenther's properties from the north.  Within 8 hours, their entire farms were inundated with water.  The videotape also shows that, at the same time, on the same day, the flood had not reached the homes or buildings of any of the Claimants.”  When the levee and floodgate authorized by the license “lost their effectiveness due to the height of the flood, which was still well below the level of a regulatory flood, the Claimants were unaffected.”  Cervone Affidavit, p. 8.

 

55.  Cervone stated in his Affidavit that “the Claimants all live to the north of Ford Slough.”  He added, “the videotape also shows that on January 10, 2005 the floodwaters going over” the levee “along Ford Slough were moving from north to south or from higher ground in the direction of the Claimants’ properties toward the lower ground of Ford’s and Guenther’s properties.  This movement of flood waters away from the Claimants” on January 10, 2005 “shows why the Claimants’ homes and outbuildings were not affected by floodwaters backing up behind” the floodgate and the levee. “[T]he Claimants’ homes and outbuilding were constructed at higher elevations than the top” of the levee authorized by the license along Ford Slough.  Cervone Affidavit, p. 8.

 

56.  Cervone stated in his Affidavit: “The January 2005 flood crested at river stage 23.12 feet on or about January 13, 2005.  As shown on the videotape, on January 12, 2005, by the time the flood crest was approaching, Ford’s and Guenther’s properties were inundated with several feet of water, to the point where” the levee authorized by the license “was no longer even visible.  It was not until this point in the progression of the flood, several days and 3.33 feet of additional flooding after” the levee and floodgate authorized by the license “had ceased to affect the flood, that the Claimants’ home and outbuildings were possibly affected.  From the videotape it is unequivocally clear” that the levee and floodgate “did not cause any January 2005 flood damage to the Claimants’ properties.”  He continued, “the Claimants’ residences are not affected by flooding at river stage 19.8 feet,” the elevation when the levee, floodgate and levee system “lose their effectiveness.  Indeed, the Claimants’ residences are not affected by flooding until the flooding approaches river stage 23.13 feet, which is fully 3 feet of additional flooding beyond” where the levee and the floodgate authorized by the license “ward off floods from Ford's and Guenther’s properties.”

 

[VOLUME 10, PAGE 222]

 

57.  The Cervone Affidavit and accompanying videotape record present a strong inference that the levee system approved under the license would have no measurable impact during a regulatory flood.  

 

58.  Standing alone, however, the Cervone Affidavit would not be sufficient to establish there is no genuine issue of fact.  The protections afforded by IC 14-28-1-22(e)(2) are more inclusive than whether the Claimants’ homes and outbuildings would be affected by floodwaters.  Also, the flooding in later December 2004 and early January 2005 “did not come close to approaching the level” of the regulatory flood, and so, is not conclusive of what damage would occur during a regulatory flood.

 

 

59.  The Nodarse Affidavit is conclusive.  As noted previously in Finding 43, “[I]t is inconceivable, in my opinion, and based on my many experiences in performing computer modeling of much smaller elevation differences,” that the authorized levee “could raise a regulatory flood elevation of 382 feet MSL at all, let alone by 0.15 of a foot to 382.15 feet MSL.  If and when a regulatory flood occurs in the area of Ford’s and Guenther’s properties,” the levee authorized by the license would be only a small “bump” on the bottom of a lake covering at least three square miles.  In most places, the water would be six to eight feet above the level of Ford’s and Guenther’s farms and would be some 30 feet deep in the portion of the floodway that encompasses the Wabash River channel.  Nodarse Affidavit at pp. 4 and 5.

 

60.  This Affidavit is not refuted but is rather bolstered by the statement of the Claimants’ expert, Siaviash E. Beick:

 

Based on the [DNR] calculations, the existing levee would be overtopped by approximately 3.35 to 5.8 feet of floodwater during the [regulatory] flood event.  Based on the analysis performed by others to date, we agree the impact of the levee and flood control structure would be negligible during a [regulatory flood] event.  However, based on our experience, the levee has a potential to impact upstream properties during smaller, more frequent flood events, which do not overtop the levee….  It should be noted that potential negative impacts due to events smaller than the [regulatory flood] are typically safeguarded by local regulations and, ultimately, this type of grievance may need to be pursued in courts.

 

61.  Without necessarily adopting Beik’s statement that “local regulations” would be a proper or the exclusive course of remedy available to the Claimants, their course must be other than through IC 14-28-1-22(e)(2).  A local ordinance, a civil remedy, or some other remedy may be available to redress harm resulting during a flood of lesser magnitude than the regulatory flood.  In order for the Commission to provide relief under IC 14-28-1-22(e)(2), however, the unreasonable hazard to the safety of life or property must be identifiable during a regulatory flood of the Wabash River.

 

[VOLUME 10, PAGE 223]

 

62.  There is no genuine issue of material fact with respect to the application of IC 14-28-1-22(e)(2).  The constructive activities authorized by the license do not result in an unreasonable hazard to the safety of life or property during a regulatory flood.

 

63.  The third item for consideration is whether the construction activities authorized by the license would result in unreasonable detrimental effects upon fish, wildlife, or botanical resources.

 

64.  As provided in 312 IAC 10-2-39:

 

     “Unreasonable detrimental effects upon fish, wildlife, or botanical resources” means damage to fish, wildlife, or botanical resources that is found likely to occur by the [DNR] director based upon the opinion of a professional qualified to assess the damage and:

(1) creates a condition where recovery of the affected resources is not likely to occur within an acceptable period; and

(2) cannot be mitigated through the implementation of a mitigation plan approved by the [DNR] director.

 

 

65.  In support of their motion for summary judgment with respect to whether the construction approved under the license would “[r]esult in unreasonably detrimental effects upon fish, wildlife, or botanical resources” under IC 14-28-1-22(e)(3), Guenther and Ford again present the affidavit of Thomas H. Cervone.

 

66.  Cervone stated in his Affidavit: In constructing the levee and floodgate approved in the license, Ford and Guenther “disturbed a very small wooded area, about 0.35 acre in size, generally north of the floodgate on both side of the unnamed ditch and south of but not in Ford Slough.”  They removed trees and underbrush. “Most of this area is a pipeline right-of-way that should be kept clear of trees anyway.”  He counted approximately 35 trees that were removed and left piled on either side of the unnamed ditch.  Cervone Affidavit, p. 10.

 

67.  Cervone studied the 0.35-acre area, which was cleared, to determine whether wetlands were affected that are under the jurisdiction of the U.S. Army Corps of Engineers.  He determined wetlands under Corps jurisdiction were not affected, and the Corps reviewed the area and accepted the results of his study without disagreement.  Cervone Affidavit, p. 10.

 

68.  Cervone also considered whether the levee and floodgate authorized by the license could have affected any threatened, endangered or rare species.  He paid particular attention to the spot-tail darter (Etheostoma squamiceps), evening bat, swamp rabbit, cerulean warbler, bald eagle, copperbelly water snake, hieroglyphic river cooter, eastern mud turtle, hellbender, Eastern bloodleaf, wooly Dutchman’s pipe and decidious holly.  As an experienced professional, he determined none of these species would be adversely affected.  Cerone Affidavit, pp. 10 and 11.

 

[VOLUME 10, PAGE 224]

 

69.  Cervone concluded the 0.35-acre area that was cleared by Ford’s and Guenther’s work was a non-wetland woods showing disturbed conditions, as evidenced by the number of hackberry and secondary growth.  Even so, Ford and Guenther have replaced the 0.35 acres of woods that was removed with 0.7 acres of high-quality bottomland trees, including 100 each of bur oak, pecan, pin oak, swamp chestnut oak and sweet gum, all planted outside the pipeline right-of-way.  Ford and Guenther also have reseeded the disturbed portions of the banks of the unnamed ditch with native grasses (including prairie species) to replace the abundance of weedy species in the disturbed area previously prevalent in the area.  As a result of these activities, and even if clearing the 0.35 acre-area had affected fish, wildlife or botanical resources, any loss of habitat was “replaced through the implementation of a habitat replacement plan” approved by the DNR as authorized under 312 IAC 10-2-39(2).  Cervone Affidavit, pp. 11 and 12.

 

70.  With respect to IC 14-28-1-22(e)(3), the Claimants offer no response to the Cerone Affidavit.  Summary judgment on this issue is not granted as a matter of course because the Claimants failed to respond, however, but rather it is granted because the Cervone Affidavit is persuasive.

 

71.  There is no genuine issue of material fact with respect to the application of IC 14-28-1-22(e)(3).  The constructive activities authorized by the license do not result in unreasonably detrimental effects upon fish, wildlife, or botanical resources.

 

72.  The fourth item for consideration is whether the construction activities authorized by the license would result in cumulative effects in violation of the Flood Control Act.

 

73.  As provided in 312 IAC 10-2-18:

 

“Cumulative effects” means the impact that results from the incremental impact of the action when added to other past, present, and reasonably foreseeable future actions regardless of what person undertakes the other actions. Cumulative effects can result from individually minor but collectively significant actions taking place over a period of time. Each of the following elements is considered when assessing the impact of cumulative effects within a floodway:

(1) Adverse effects on the efficiency of, or undue restrictions to the capacity of, the floodway.

(2) Unreasonable hazards to the safety of life or property.

(3) Unreasonable detrimental effects upon fish, wildlife, or botanical resources.

 

74.  In support of their motion for summary judgment with respect to whether the DNR properly considered the cumulative effects of the construction approved under the license, as provided in IC 14-28-1-22(f), Guenther and Ford once again present the affidavit of Thomas H. Cervone.  In this regard, the DNR director “may incorporate in and make a part of any order of authorization conditions and restrictions that the director considers necessary” for the purpose of the Flood Control Act.

 

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75.  Cervone concluded that the cumulative effects on the Claimants and their properties from the activities authorized by the license “and any other past, present, and reasonably foreseeable actions were negligible.”  He stated these construction activities “simply had no impact, incremental or otherwise, on the Claimants and their properties.”  Also, the activities authorized by the license have no cumulative effects “on any wetlands or on any endangered, threatened, or rare species were negligible, and their construction had no impact, incremental or otherwise, on any fish, wildlife, or botanical resources.”  Cervone Affidavit, pp. 12 and 13.

 

76.  With respect to IC 14-28-1-22(f), the Claimants offer no response to the Cervone Affidavit.  Summary judgment on this issue is not granted as a matter of course because the Claimants failed to respond.  Rather summary judgment is granted based on the Cervone Affidavit and other undisputed facts as set forth in these Findings.  There is no factual basis on which an appropriate determination of cumulative effects could be made.

 

77.  The constructive activities authorized by the license do not result in cumulative adverse effects to the Claimants or their properties.  Similarly, they do not result in unreasonably detrimental effects upon fish, wildlife, or botanical resources.

 

78.  There is no genuine issue of material fact with respect to the application of IC 14-28-1-22(f).  The cumulative effects from the activities authorized by the license and any other past, present, and reasonably foreseeable actions are negligible.

 

79.  One other item should be considered.  The Claimants presented affidavits to the effect there was no prior levee or floodgate in the area of the license.  Affidavit of Rita Garbers (December 2, 2005); Affidavit of Rebern Cox Sr. (December 2, 2005); Affidavit of Megan Mathew (December 2, 2005); Affidavit of Amy Peerman Graves (December 2, 2005); and, Affidavit of C. V. Taylor (December 1, 2005).  Evidence offered by Guenther and Ford, including viewing of the videotape recording, might lead to a different conclusion.  For the purposes of the instant summary judgment motion, these affidavits are taken as factually accurate.

 

80.  A permit applicant might claim legal authority to maintain a levee or floodgate that does not meet modern standards, as set by statute and rule, on the basis the structures were lawful when originally constructed.  Under proper circumstances, a permit to maintain a structure of this nature can be approved as a lawful nonconforming use.  By way of illustration, see Brown and Zeller, et al. v. DNR, 9 Caddnar 136 (2004) and 312 IAC 10-3-8.

 

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81.  If Ford and Guenther were claiming the benefits of a lawful nonconforming use, whether a new levee was being constructed or an existing levee was being repaired might have legal significance.

 

82.  Ford and Guenther make no claim to benefit from a lawful nonconforming use.  The standard for review of their application would be no less for a levee and floodgate repair than for a new levee and floodgate.  With respect to the instant proceeding, the distinction between constructing a new levee and reconstructing an existing levee is one without legal consequence.  The distinction illuminated by the affidavits referenced in Finding 79 presents no issue of genuine or material fact.

 

83.  Ford and Guenther have sustained their burden and demonstrated there is no genuine or material fact in dispute as to the propriety of issuance of the license.  Summary judgment should be granted in their favor and against the Claimants.  The DNR has joined in the motion and should also be granted summary judgment in its favor and against the Claimants.  Summary judgment must properly be framed by the jurisdiction of the Commission under the Flood Control Act.  With respect to IC 14-28-1-22(e)(1) and IC 14-28-1-22(e)(2), that jurisdiction is for harm during a regulatory flood.  Summary judgment is without prejudice to the Claimants to seek, in another appropriate forum, redress for harm claimed as a result of a lesser flood.