CADDNAR

[CITE: Crafton, et al. v. DNR and Hopkins, 10 CADDNAR 227 (2006)]

 

[VOLUME 10, PAGE 227]

 

Cause #: 05-145W

Caption: Crafton, et al. v. DNR and Hopkins

Administrative Law Judge: Jensen

Attorneys: Crafton, Rodocker (pro se); Conklin; Boyko; Currens

Date: March 31, 2006

 

 

Final Order:

 

FW-23, 198 is hereby affirmed with the following modifications.

 

Special Condition #9 shall be replaced with the following: 

(9)               * NOTE: for regulatory purposes, the floodway is defined as that shown on Panel 150 of the Hendricks County Flood Boundary and Floodway Map, dated March 16, 1981, except as follows:

The floodway shall also include the channel of the West Fork of White Lick Creek and fifty (50) feet west of the western stream bank where the channel presently lies outside the floodway shown on Panel 150.  Such geographical area is depicted in the “Sand and Gravel Mining Plan” dated October 7, 2005, received as evidence in Crafton et al v. DNR and Hopkins, Administrative Cause Number 05-145W . 

 

Special Condition #3 shall be replaced with the following:

(3)               Notwithstanding Special Condition (2), no excavation, stockpiling of overburden, or disturbance of any type (no roads or trails, etc.) may occur within the buffer zone; do not manage the buffer zone in any way (no mowing, spraying, cutting, planting, or any other vegetation management practices); the buffer zone must be marked with signs designating it as a riparian buffer and stating the above limitation on activities that may occur in the area; signs should be placed at 200’intervals along the proposed mining limits/buffer zone; the buffer zone must be protected in perpetuity by a conservation easement.

 

 

FINDINGS OF FACT AND CONCLUSIONS OF LAW WITH FINAL ORDER OF THE NATURAL RESOURCES:

 

PROCEDURAL BACKGROUND:

 

1.      The instant proceeding was initiated by Claimants, Charles Crafton and Clarienda Crafton (the “Craftons”), who filed correspondence with the Natural Resources Commission (“Commission”) on August 10, 2005[1] and by Claimants, James Rodocker and Brenda Rodocker (the “Rodockers”), who filed correspondence with the Commission on August 11, 2005

 

[VOLUME 10, PAGE 228]

 

2.      The Craftons’ and the Rodockers’ correspondence sought administrative review of the Respondent, Department of Natural Resources’ (“DNR”), determination to issue a Certificate of Approval for Construction in a Floodway (“FW-23, 198”) to Respondent, Arvin Hopkins (“Hopkins”).

 

3.      At the prehearing conference, with the agreement of the Craftons and the Rodockers, their individual requests for administrative review were consolidated into this proceeding.[2]

 

4.      FW-23, 198 involves excavation and other activities relating to the development of a sand and gravel quarry within the floodway of the West Fork of White Lick Creek located in the Northwest Quarter, Section 22, Township 14 North, Range 1 East in Hendricks County, Indiana. 

 

5.      On September 14, 2005, Bobby Maupin and Anna Maupin (the “Maupins”) as well as Kerry DeArth and Robin DeArth (the “DeArths”), were granted status as Claimant Intervenors.

 

6.      Claimants, the Craftons and Rodockers, proceeded pro se, while Claimant Intervenors, the Maupins and DeArths, were represented by counsel, Betty M. Conklin.  Respondent, Hopkins, was represented by counsel, Timothy C. Currens, and counsel, Ihor N. Boyko, represented the Department.

 

7.      The issues to be determined by this proceeding were clarified and summarized in a supplemental prehearing order issued on October 5, 2005 as follows:

a.       Matters relating to endangered species, fish, wildlife and botanical resources that will allegedly be negatively impacted by Hopkins’ activities in the floodway.

b.      Matters relating to wetlands that will allegedly be negatively impacted by Hopkins’ activities in the floodway.

c.       Matters relating to negative impacts to the efficiency and capacity of the floodway and flooding of the Claimants’ property that will allegedly result from Hopkins’ activities in the floodway.

d.      Matters relating to specific terms and conditions involving trees felled in the floodway.

 

[VOLUME 10, PAGE 229]

 

8.      An administrative hearing was conducted on December 7, 2005.

 

9.      This proceeding is substantively controlled by IC 14-28, commonly referred to as the Flood Control Act (“FCA”).

 

10.  Procedurally, IC 4-21.5, commonly referred to as the Administrative Orders and Procedures Act or “AOPA,” governs the conduct of this proceeding.

 

11.  The Department is the agency charged with responsibility for administration of the FCA.  IC 14-11-1-1.

 

12.  The Commission is the ultimate authority over the activity of the Department with respect to the FCA. IC 14-10-2-3, IC 4-21.5.

 

13.  The real property the subject of FW-23, 198 is and was at all relevant times owned by Hopkins.

 

14.  The Claimants and Claimant Intervenors are and were at all relevant times each residents and owners of real property located adjacent to or within very close proximity to Hopkins’ real property associated with FW-23, 198.

 

15.  The Commission has jurisdiction over the persons of the parties and the subject matter of this proceeding.

 

FINDINGS OF FACT:

 

Floodway Location:

 

16.  Ross Holloway, who is the owner of Holloway Engineering and who is a civil engineer and licensed land surveyor possessing a Bachelors Degree in Construction Engineering, was hired by Hopkins for purposes of preparing plans and submitting the application for FW-23, 198.  Testimony of Holloway, Testimony of Hopkins.

 

17.  Along with the application for FW-23, 198, Holloway, on behalf of Hopkins, prepared and submitted a “Sand and Gravel Mining Plan” (“original mining plan”) to the Department’s Division of Water on January 7, 2005.  The original mining plan identified the proposed mining limits and the approximate boundary of the floodway as delineated by the Federal Emergency Management Agency (“FEMA”) in “Panel Number 180415 0150 B of the Flood Insurance Rate Maps for Hendricks County, Indiana; Dated March 16, 1981” (“Rate Map”).  Claimant’s Exhibit C-6, Testimony of Holloway. 

 

18.  On June 10, 2005 Holloway submitted a revised Sand and Gravel Mining Plan (“revised mining plan”) again based upon the Rate Map.  Claimant’s Exhibit 9, Testimony of Holloway, Testimony of Kelly Hall.

 

[VOLUME 10, PAGE 230]

 

19.  Following submission of the revised mining plan, the Department issued FW-23, 198 on July 27, 2005.  Claimant’s Exhibit 3. 

 

20.  The only floodway delineation considered by the Department in approving and issuing FW-23, 198 was the delineation identified in the Rate Map.  Testimony of Kelly Hall, Testimony of Brian Boszor, Testimony of Holloway.

 

21.  After the Department’s issuance of FW-23, 198 and during the pendency of the instant proceeding, Hopkins caused the first actual survey of the project area to be completed.  This survey enabled the actual location of the channel of the West Fork of White Lick Creek to be identified.  Testimony of Holloway, Respondents Exhibit a, Claimants Exhibit 2.

 

22.  Information gleaned from the Hopkins’ survey is depicted on a copy of the Rate Map in which Holloway caused the location of the channel as delineated by FEMA on the Rate Map to be highlighted in yellow and the actual channel location as determined by Hopkins’ survey to be highlighted in blue.  Respondent’s Exhibit a, Testimony of Ross Holloway.

 

23.  Holloway testified with respect to the channel of the West Fork of White Lick Creek that the “physical location in this case has no bearing”[3] noting that it remains within the floodway delineated on the Rate Map.  Testimony of Holloway.

 

24.  While it is accurate to state that the channel remains within the Rate Map’s delineation of the flood plain throughout the project site, at one location Hopkins’ survey shows the actual channel of the West Fork of White Lick Creek to be westward of the western boundary of the floodway as delineated on the Rate Map.  Respondent’s Exhibit a and Claimant’s Exhibit 2.

 

25.  That location (“Deviation Point”) begins at approximately one thousand five hundred twenty five (1525) feet east and two hundred (200) feet south and ends at approximately one thousand eight hundred twenty five (1825) east and five hundred (500) feet south of the Northwest Corner of the Northwest Quarter of Section 22, Township 14 North, Range 1 East.  Measurements taken from Respondent’s Exhibit a, which indicates a scale of one inch equals two hundred (200) feet. 

 

[VOLUME 10, PAGE 231]

 

26.  Hopkins’ survey reveals that the channel at the Deviation Point is actually located as much as approximately two hundred (200) feet west of the western floodway boundary as delineated in the Rate Map.  Measurements taken from Respondent’s Exhibit a, which indicates a scale of one inch equals two hundred (200) feet.

27.  Special condition #9 contained within FW-23, 198 specifies that “for regulatory purposes, the floodway is defined as that shown on Panel 150 of the Hendricks County Flood Boundary and Floodway Map, dated March 18, 1981,” (the “Rate Map” as identified herein).  Claimant’s Exhibit 3. 

 

Effect of FW-23, 198 on Endangered Species, Fish, Wildlife and Botanical Resources:

 

28.  Initially, Hopkins’ application for FW-23, 198 stated his intention to conduct gravel and sand extraction within the floodway of the West Fork of White Lick Creek with mining activity to occur “more than 200 feet from the west bank of the creek.  Claimants’ Exhibit 1, page 5.  However, the original mining plan submitted with the application reveals an intention to conduct mining operations up to a point only approximately fifty (50) feet west of the western stream bank.  Claimant’s Exhibit C-6, Testimony of Boszor, Testimony of Hall.

 

29.  Kelly Hall, Department’s Environmental Scientist, noted that a revision was made to the written application on January 20, 2005 reducing the distance between mining activity and the stream bank to fifty (50) feet.  Claimants’ Exhibit 1, page 5, Testimony of Hall. 

 

30.  The environmental review relating to FW-23, 198 utilizing the original mining plan resulted in the determination that “the proposed project has the potential to negatively impact fish, wildlife, or botanical resources in the area.”  Testimony of Boszor, Respondent’s Exhibit B.

 

31.  Brian Boszor, a Department Central Region Environmental Biologist since 2000, who holds a Bachelor of Science Degree in Forestry and Wildlife Management, conducted the environmental review.  Testimony of Boszor.

 

32.  Boszor used aerial photographs taken in 1998 and conducted a site inspection that occurred on March 3, 2005 in completing the environmental review.  The site inspection included walking the entire length of the West Fork of White Lick Creek involved in the project limits of FW-23, 198.  Testimony of Boszor.

 

33.  It was established through the environmental review that the western side of the relevant portion of the West Fork of White Lick Creek “has a wooded riparian corridor inside the bends of the stream.” Respondent’s Exhibit B, Claimant’s Exhibit 7 and photographs contained within Claimant’s Exhibit C-2, Testimony of Boszor. 

 

[VOLUME 10, PAGE 232]

 

34.  Such wooded riparian corridor provides significant habitat features for fish, wildlife and botanical resources that are “limited,” “irreplaceable” and are “valuable conservation areas.” Respondent’s Exhibit B, Claimant’s Exhibit 7, Claimant’s Exhibit C-2, and Testimony of Boszor.

35.  Clarienda Crafton testified that owls, hawks, turtles and other various species of wildlife inhabit the riparian corridor and that there has been an abundant number of Karner Blue butterflies in the area.  Claimant’s Exhibit C-2, Claimant’s Exhibit C-4.

 

36.  James Rodocker testified as to the disturbing consequences of Hopkins’ planned quarry with respect to the natural habitat areas that are extremely important to the lives of individual residents. Claimant’s Exhibit R-1.

 

37.  As a result of the environmental review, the Department issued to Hopkins an “Incomplete Application Notice” (“Notice”) on March 17, 2005.  Respondents’ Exhibit B.

 

38.  The Notice advised Hopkins that a mitigation plan was required before the application for FW-23, 198 could be approved and the Department suggested that a riparian buffer strip the minimum width of 30% of the active floodway be incorporated into the project.  Included within the Notice is the Department’s determination to place Hopkins’ application for FW-23, 198 in abeyance for a period of ninety (90) days to allow Hopkins to submit the mitigation plan.  Respondent’s Exhibit B.

 

39.  In lieu of a mitigation plan, Hopkins’ submitted the revised mining plan to the Department on June 10, 2005 in response to the Department’s Notice.  Testimony of Hall.

 

40.  It was the determination of the Department, consistent with additional environmental review conducted by Boszor, that the revised mining plan, would adequately protect fish, wildlife and botanical resources as well as adequately conserve the existing wooded riparian corridor.  Testimony of Boszor, Claimant’s Exhibit 3.

 

41.  The revised mining plan indicates the intention to maintain a two hundred (200) foot buffer zone along the western stream bank of the West Fork of White Lick Creek in most locations within the project limits.  Claimant’s Exhibit 9, Testimony of Boszor, Testimony of Hall.

 

42.  However, the revised mining plans do indicate one area in the northwest segment of the project limits where the buffer zone will be only approximately fifty (50) feet in width.  Claimants’ Exhibit 9.

 

43.  In this northwest segment of the project, FEMA’s floodway delineation as set forth in the Rate Map indicates that the western floodway boundary is approximately fifty (50) feet west of the western stream bank.  Hopkins’ revised mining plan indicates his intention to conduct mining activities up to but landward of FEMA’s floodway delineation.  Claimant’s Exhibit 9. 

 

[VOLUME 10, PAGE 233]

 

44.  Boszor confirmed his previous determination that unreasonable detrimental effects to fish, wildlife and botanical resources would not result if the buffer zone was maintained as depicted on Hopkins’ revised mining plan.  Testimony of Boszor.

 

45.  However, on additional questioning, Boszor testified that if a two hundred (200) foot buffer zone was not going to be maintained he could not be certain that unreasonable detrimental effects to fish, wildlife and botanical resources would not occur.

 

46.  Boszor’s testimony is somewhat conflicted as to whether he intended the buffer zone to be two hundred (200) feet in width throughout the project limits or whether he intended the buffer zone to be consistent with Hopkins’ revised mining plan.

 

47.  FW-23, 198’s Certification of Approval expressly states:

Excavation in the floodway shall extend no closer than 200’ from the west bank of the stream.  Where the 100 year regulated floodway is less than 200’ in width, the excavation limits shall be contiguous with the floodway limits.

 

  Claimants’ Exhibit 3, page 1.  This determination is consistent with the revised mining plan.

 

48.  Special Condition #2 and #3 to FW-23, 198 state:

(2) maintain the mining limits as shown on the Sand and Gravel Mining Plan received at the Division of Water on June 10, 2005.

(3) no excavation, stockpiling of overburden, or disturbance of any type (no roads trails, etc.) may occur within the 200’ buffer zone; do not manage the buffer zone in any way (no mowing, spraying, cutting, planting, or any other vegetation management practices); the buffer zone must be marked with signs designating it as a riparian buffer and stating the above limitations on activities that may occur in the area; signs should be placed at 200’ intervals along the proposed mining limits/buffer zone; the buffer zone must be protected in perpetuity by a conservation easement.

 

      Claimants Exhibit 3, page 4 (emphasis added).

 

49.  When considered in isolation, the Department’s reference to a “200’ buffer zone” in Special Condition #3 reasonably leads to the inference, espoused by the Claimants and Claimant Intervenors, that the buffer zone would be maintained at two hundred (200) feet throughout the entire project limits.  Claimants’ Exhibit 3, page 4.

 

[VOLUME 10, PAGE 234]

 

50.  However, FW-23, 198’s Special Condition #3 cannot be viewed except in the context of the actual Certificate of Approval. 

 

51.  In essence FW-23, 198 never required a two hundred (200) foot buffer zone along the West Fork of White Lick Creek within the entire project limits.

 

52.  Instead, FW-23, 198 requires Hopkins to maintain a two hundred (200) foot buffer where the distance between FEMA’s floodway delineation and the west stream bank exceeds two hundred (200) feet.  However, in areas where the distance between the FEMA floodway delineation and the west stream bank is two hundred (200) feet or less Hopkins is prohibited from conducting mining activities in the floodway at all.  Claimants’ Exhibit 3.

 

53.  The difficulty pertaining to FW-23, 198’s Special Condition #3 relates to the discrepancy between the channel location as identified by FEMA in the Rate Map and the actual location of the channel as determined by Hopkins’ survey.

 

54.  The Claimants Intervenors’ clearly evidence this difficulty by superimposing the mining limits specified on the revised mining plan (referred to in Special Condition #2 as the Sand and Gravel Mining Plan received at the Division of Water on June 10, 2005) over the actual stream location as identified by Hopkins’ survey.  Claimant’s Exhibit 2.

 

55.  In some places, particularly the northwestern and southwestern project limits, the present location of the channel is closer to the western floodway boundary as delineated by FEMA.  In other places, particularly in the mid-section of the project limits, the present channel location is further away from the western floodway boundary as delineated by FEMA.  Respondent’s Exhibit a, Claimant’s Exhibit 2.

56.  Particularly problematic is the Deviation Point, where the channel of the West Fork of White Lick Creek at its present location actually extends westward of the FEMA’s delineated western floodway boundary.  Claimant’s Exhibit 2.

 

57.  Compliance with the mining limits specified in the revised mining plan would allow for mining in and through the actual channel at the Deviation Point.  Claimant’s Exhibit 2.

 

58.  While reviewing Exhibit 2, Boszor testified that mining within the creekbed would result in significant disruption to the streambed, the habitat and ecology of that area.

 

59.  Of additional importance to the Claimants and Claimant Intervenors is the existence of American Bald Eagles in the vicinity of the project site associated with FW-23, 198.  Claimant’s Exhibit C-2, Testimony of Charles and Clarienda Crafton, Testimony of John Castrale.

 

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60.  John Castrale, who is a Non-Game Bird Biologist for the Department’s Division of Fish and Wildlife and a Certified Wildlife Biologist in the State of Indiana, and who possesses a Bachelor of Science Degree in Wildlife Science, completed two years of graduate studies at West Virginia University and holds a Ph.D. in Wildlife and Range Resources Management from Brigham Young University, testified regarding the American Bald Eagles.  Testimony of Castrale.

 

61.  Castrale and other Department representatives as well as representatives of the U.S. Fish and Wildlife Service have been monitoring the American Bald Eagles from 2004 through 2005.  This monitoring has involved flying over the nest on three occasions to determine activity within the nest.  On April 8, 2005 it was determined that eggs were present in the nest and on June 3, 2005 during the final fly over, two well-developed eaglets were observed.  Testimony of Castrale.

 

62.  The nest is located on property owned by U.S. Aggregates, which is an active aggregates mine located quite a distance away from the site involved with FW-23, 198.  Testimony of Castrale (Castrale identified the estimated location of the nest by date and signature on Claimant’s Exhibit C-6). 

 

63.  Castrale, along with U.S. Fish and Wildlife Service representatives, with the agreement of U.S. Aggregates, established a protection area consistent with National Guidelines.  Castrale testified that the Endangered Species Act, both federal and state, as well as the Bald and Golden Eagle Act and the Migratory Bird Treaty Act protect American Bald Eagles.  The protection area established, restricts activities occurring within a primary and secondary protection zone and are sufficient to protect the eagles at issue.  Testimony of Castrale.

 

64.  The project site associated with FW-23, 198 is not within the protection zones established in relationship to the American Bald Eagles.  Testimony of Castrale.

 

65.  Castrale was able to determine that a photo of the nest presented by the Craftons, as part of Exhibit C-2, appeared to be the same nest that he had been monitoring.     

 

66.  Clarienda Crafton acknowledged that the eagles at issue were nested in a tree located on the real property of U.S. Aggregates and is aware that Castrale has been monitoring their activity.

 

67.  The Claimants and Claimant Intervenors failed to provide any evidence contradicting Castrales’ conclusions regarding the American Bald Eagles.

 

68.  The Craftons identified a “spring-fed” wooded wetland area in existence near the northern boundary of their real property that abuts Hopkins’ real property, the subject of FW-23, 198.  Claimant’s Exhibit C-1, Testimony of Charles Crafton.

 

[VOLUME 10, PAGE 236]

 

69.  The location of the spring-fed wooded wetland is located on or near the floodplain of the West Fork of White Lick Creek, but is not within the floodway.  Claimant’s Exhibit C-1 (the wetland area location is identified on the exhibit with an “X” in red ink), Testimony of Charles Crafton.

 

70.  The Craftons expressed their concern that Hopkins’ mining, which will occur within fifty (50) feet of their northern property line, will negatively effect the spring and the wooded wetland area.  Testimony of Charles Crafton.

71.  Neither the Claimants nor the Claimant Intervenors presented testimony or other evidence to support the Craftons’ concerns regarding damage to the spring-fed wooded wetland.

 

Trees Felled in the Floodway:

 

72.  FW-23, 198 contains special condition #7, which states, “do not leave felled trees, brush, or other debris in the floodway.”  Claimant’s Exhibit 3.

 

73.  During her testimony, Clarienda Crafton stated her belief that special condition #7 to FW-23, 198 should include a specific period of time within which Hopkins is required to remove trees, brush and other debris from the floodway.  Ms. Crafton expressed her belief that such material should be removed from the floodway within a period of seven (7) days to avoid rodent infestation.  Testimony of Clarienda Crafton.

 

74.  Neither the Claimants nor the Claimant Intervenors presented additional evidence on this issue.

 

Effect of FW-23, 198 on the Efficiency and Capacity of the Floodway and Flooding of Claimant’s Real Property:

 

75.  As it was originally proposed by Hopkins’ application submitted on January 7, 2005, which included the original mining plan, and as it was approved on July 27, 2005 based upon Hopkins’ revised mining plan, FW-23, 198 involves only excavation within the floodway of the West Fork of White Lick Creek.  Claimants’ Exhibit C-6, Claimants’ Exhibit 1, Claimants’ Exhibit 9, Claimants’ Exhibit 3.

 

76.  Hopkins’ application for FW-23, 198 indicates the plan to pile overburden out of the floodway area.  Claimants’ Exhibit 1.

 

77.  The Department’s approval of FW-23, 198 was conditioned upon the placement of overburden landward of the floodway and the requirement that all excavated materials, felled trees, brush and debris be removed from the floodway.  Claimants’ Exhibit #3.

 

[VOLUME 10, PAGE 237]

 

78.  Hall explained that the application did not involve the placement of permanent structures or other obstructions within the floodway, but instead involved only excavation activities. 

 

79.  The technical review determined that excavation in the floodway would enlarge the floodway as opposed to the placement of obstructions or structures in the floodway, which could impede flow.  Therefore, the resulting impact on the floodway would be negligible making hydrologic modeling unnecessary.  Testimony of Hall.

 

80.  Mining such as that associated with FW-23, 189 will result in the removal of obstacles and improve the capacity of the floodway, which in turn minimizes the potential for flooding upstream of the excavation activities.  Testimony of Holloway.

 

81.  With respect to the specific site involved with FW-23, 198, Holloway testified that mining in the pasture area located westward of the channel of the West Fork of White Lick Creek will create a “larger cross-sectional capacity.”  According to Holloway, this excavation will result in increased capacity and efficiency thereby minimizing upstream flooding. 

 

82.  Charles Crafton identified a tree line abutting the west stream bank of the West Fork of White Lick Creek.  Claimants” Exhibit C-6, tree line identified as “C.C. 12/7/05.”

 

83.  Charles Crafton testified regarding his personal observation of the natural erosion control a treeline such as the one identified here can provide and the erosion that can result from the removal of such a tree line.

 

84.  The base flood elevation for the floodway relating to FW-23, 198 is 686 feet at the northern project limits and at the southern end of the project limit is identified at 693 feet.  The base flood elevation is determined on cross-sectional information relating to the overall floodway and is not restricted to data relating to the exact location of the channel within the floodway.  Testimony of Holloway.

 

85.  Holloway determined that the difference between the location of the channel depicted in the Rate Map and the actual location as determined by Hopkins’ survey would not impact the base flood elevations relating to the entirety of that section of the floodway. 

 

86.  The southern end of the project limits associated with FW-23, 198 is downstream of the Claimant Intervenors’ real property.  Respondent’s Exhibit a, (the DeArths’ real property is identified as “Mitchaner”).

 

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87.  Improving the efficiency and capacity of the floodway at the southern end of the project limit, “might” have the effect of decreasing the potential for flooding of the Maupin and DeArth properties.  Testimony of Holloway.

 

88.  No evidence was presented specifically relating to potential flooding associated with the real property owned by the Craftons and the Rodockers.

 

89.  While Holloway is the agent of Hopkins, Claimant Intervenors presented his testimony. 

 

90.  As the only witness with knowledge, education and professional experience relating to engineering and floodway hydrology, Holloway’s testimony is convincing. 

 

 

CONCLUSIONS OF LAW:

 

91.  In situations where the Department has made the initial determination to approve a permit under the FCA, those parties seeking to set aside the permit bear the burden of proof.  Schafer and Nash v. DNR and Wagoner, 7 CADDNAR 17, December 28, 1993, citing Brown v. Dept. of Natural Resources and Peabody Coal Company, 6 CADDNAR 136, 1993).

 

92.  The review conducted on administrative review of a Department’s determination is conducted de novo.  Rather than deferring to the earlier determination of the Department, de novo review requires the administrative law judge to consider and apply proper weight to evidence presented in the administrative proceeding in reaching a conclusion.  Kinder v. Department of Natural Resources, 8 CADDNAR 23, October 28, 1998, citing DNR v. United Refuse Co., Inc.615 N.E.2d 100 (Ind. 1993).

 

Floodway Location:

 

93.  “Floodway,” for purposes of the FCA is defined at IC 14-8-2-102 as “(1) the channel of a river or a stream; and (2) the parts of the floodplain adjoining the channel that are reasonably required to efficiently carry and discharge the floodwater or floodflow of a river or stream.”

 

94.  FEMA defines “Regulatory Floodway” as “the channel of a river or other watercourse and the adjacent land areas that must be reserved in order to discharge the base flood without cumulatively increasing the water surface elevation more than a designated height.” 44 CFR 59.1, made applicable to floodplain management by 44 CFR 60.8.

 

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95.  Under either IC 14-8-2-102 or 44 CFR 59.1, the channel of a river, stream or watercourse is by function of law necessarily included within the floodway. 

 

96.  It is however also the case that pursuant to 44 CFR 60.3, when flood hazard areas have been established by FEMA, “they shall apply” to communities.

 

97.  The State of Indiana is a “community” for purposes of 44 CFR 60.  44 CFR 59.1, made applicable to floodplain management by 44 CFR 60.8.

 

98.  Consistent with 44 CFR 60 et seq., the Commission has previously determined that where FEMA has delineated a floodway in a published Rate Map, as in the situation presented here, the Department is obligated to use the floodway delineation established by FEMA.  Yater v. Department of Natural Resources, 6 CADDNAR 168, October 19, 1994; Hoosier Environmental Council v. RDI/Caesar’s River Boat Casino, LLC, and DNR, 8 CADDNAR 48, August 6, 1998.

 

99.  “The executive branch of government (which includes DNR and NRC) is not in a position to jeopardize the states insurance program with FEMA on the basis of one adjudication of an FCA permit.” Yater at 169.

100.          Also in accordance with the mandates of 44 CFR 60 et seq., 312 IAC 10-3-2 expressly provides that “where a flood plain (or a floodway and fringe) is designated by the Federal Emergency Management Agency for a flood insurance study under 44 CFR 60.3, the flood plain (or floodway and fringe) also applies to this article.”

 

101.          However, with the peculiar facts presented here, strict compliance with Yater and Hoosier Environmental Council, or blind acceptance of the floodway delineation established by FEMA in the Rate Map, as required by 312 IAC 10-3-2, results in a determination that the channel of the West Fork of White Lick Creek, as it is actually located at present, does not form a part of the floodway at the Deviation Point. 

 

102.          This result is not only absurd, it is in direct contradiction with the express requirements of both IC 14-8-2-102 and 44 CFR 59.1, which mandate that the channel of a river, stream or watercourse is a part of the floodway.

 

103.          44 CFR 60.1(a) provides that “flood insurance shall not be sold or renewed under the program within a community, unless the community has adopted adequate flood plain management regulations consistent with Federal criteria.” emphasis added.  Furthermore, it is the purpose of 44 CFR 60 et. seq. to establish criteria by which the Federal Insurance Administrator “will determine the adequacy of a community’s flood plain management regulations.”  44 CFR 60.3(b). 

 

104.          44 CFR 60.1(d), states in pertinent part:

 

(d) The criteria set forth in this sub-part are minimum standards for the adoption of floodplain management regulations by flood-prone…communities.  Any community may exceed the minimum criteria under this part by adopting more comprehensive flood plain management regulations…  In some instances, community officials may have access to information or knowledge of conditions that require, particularly for human safety, higher standards than the minimum criteria set forth… Therefore, any flood plain management regulations adopted by a State or a community which are more restrictive than the criteria set forth in this part are encouraged and shall take precedence.  (emphasis added)

 

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105.          As a general rule, adoption of a FEMA floodway delineation, as set forth in insurance study rate maps pursuant to 312 UAC 10-3-2, is proper.

 

106.          However, when application of an administrative rule results in inconsistency with statutory requirements, the statute must control.

 

107.          In this particular situation the Claimants and Claimant Intervenors have proved by a preponderance of the evidence that the channel of the West Fork of White Lick Creek is not at its present location included within FEMA’s Rate Map floodway delineation at the Deviation Point.

108.          Because the channel of the river, stream or watercourse is required to be included within the floodway, an exception to the general rule must be set forth based upon the peculiar facts of this case.

 

109.          It is important that this exception be carefully considered and very narrowly tailored to preserve the overall integrity of 312 IAC 10-3-2, the Department’s ability to consistently determine issues relating to floodways and the State of Indiana’s participation in the federal flood insurance program.

 

110.          No evidence was presented to establish that any portion of the Rate Map’s floodway delineation within the project limits of FW-23, 198 is inaccurate except that geographical area previously identified as the Deviation Point. 

 

111.          The inclusion of the channel of the West Fork of White Lick Creek at the Deviation Point will move the western floodway boundary as much as two hundred (200) feet west thus widening the floodway at the Deviation Point.  This action results in exceeding the minimum FEMA standards and is more restrictive than the criteria set forth at 44 CFR 60 et seq.  Such action is based upon the State’s knowledge of the presently existing conditions.[4]

 

112.          This determination will not serve to jeopardize the State of Indiana’s flood insurance program with FEMA, but instead will allow for complete compliance with the requirements set forth by the Indiana General Assembly and by the United States Congress, which dictate that a floodway must include the channel of a river, stream or watercourse.

 

[VOLUME 10, PAGE 241]

 

113.          As set forth in the Rate Map, the floodway delineation is approximately fifty (50) feet west of the western stream bank of the channel.

 

114.          Maintaining a fifty (50) foot distance between the western stream bank of the channel at its present location in redefining the western floodway boundary at the Deviation Point is reasonable while also being narrowly tailored to the evidence existing in this proceeding.

 

115.          It is determined that the floodway of the West Fork of White Lick Creek shall include the channel of the creek plus fifty (50) feet westward of the western stream bank at the geographic location identified herein as the Deviation Point.  In all remaining aspects the floodway delineation identified in FEMA’s Rate Map shall control. 

 

Effect of FW-23, 198 on Endangered Species, Fish, Wildlife and Botanical Resources:

 

116.          Consideration of this issue begins with the understanding that “the Department cannot exercise regulatory authority in the absence of a specific statutory authorization.” Schafer and Nash v. DNR and Wagoner, 7 CADDNAR 17, December 28, 1993. 

 

117.          It is well settled that the Department’s jurisdiction relating to the FCA is limited to the floodway.  Id and Gosset v. Town of Albany and Department of Natural Resources, 9 CADDNAR 174, June 25, 2004.

 

118.          The floodway, over which the Department possesses jurisdiction is limited, except in rare instances, to the FEMA delineation published in the Rate Map. See discussion supra.

 

119.          At all locations, except the Deviation Point, the channel of the West Fork of White Lick Creek remains within the floodway delineation established by FEMA and published in the Rate Map.  Respondent’s Exhibit a, Claimant’s Exhibit 2.

 

120.          For purposes of FW-23, 198, FEMA’s floodway delineation must be accepted with respect to all locations except the Deviation Point. See discussion supra.

 

121.          FEMA’s floodway delineation, in turn, establishes the Department’s reach of jurisdiction under the FCA with respect to the width of the buffer zone at all locations within the project limits of FW-23, 198, except the Deviation Point. Schafer and Gosset, supra.

 

[VOLUME 10, PAGE 242]

 

122.          Utilizing FEMA’s Rate Map, maintaining a two hundred (200) foot buffer zone along the West Fork of White Lick Creek within the entirety of the project limits of FW-23, 198 would in areas where the channel location is less than two hundred (200) feet from the floodway boundary obligate the Department to exceed its jurisdictional limitations. 

 

123.          This result is also true when utilizing Hopkins’ survey.

 

124.          The channel’s actual location as determined by Hopkins’ survey is closer to the western floodway boundary as delineated by FEMA in the Rate Map and will have the result of decreasing the width of the buffer zone in some areas.

 

125.          However, such a result is unavoidable because statutory jurisdictional restrictions prohibit the Department from imposing a condition requiring maintenance of a two hundred (200) foot buffer, in locations where such a condition would impose limitations or prohibitions on geographical areas outside the floodway. Schafer and Gosset, supra.

 

126.          FW-23, 198 clearly specifies that Hopkins must maintain a two hundred (200) foot buffer zone in areas where the distance between FEMA’s floodway delineation and the west stream bank exceeds two hundred (200) feet.  However, in areas where the distance between the FEMA floodway delineation and the west stream bank is two hundred (200) feet or less Hopkins is prohibited from conducting mining activities in the floodway at all.  Claimants’ Exhibit 3.

 

127.          The Department’s determination, as found within the language of the Certificate of Approval of FW-23, 198, maintains Boszor’s desired two hundred (200) foot buffer zone except where to do so would require the Department to violate its jurisdictional limits.  The Department can legally do no more.

 

128.          Boszor’s determination that significant ecological upset would occur if mining is allowed in the channel is remedied by the determination herein that at the Deviation Point (where the channel of the West Fork of White Lick Creek extends westward of FEMA’s delineated western floodway boundary) the channel and fifty (50) feet west of the western stream bank is included with the regulated floodway. See discussion supra.

 

129.          Hopkins is thereby prohibited under FW-23, 198’s existing Certificate of Approval from mining in the channel or within fifty (50) feet of the channel at the Deviation Point. 

 

[VOLUME 10, PAGE 243]

 

130.          The reference to a “200’ buffer zone” in Special Condition #3 is however misleading and requires modification.

 

131.          “The Department does not have general jurisdiction over wetlands. Unless the wetlands are owned by the State of Indiana, are part of the floodway where the proposed construction will take place, or on property involved in coal mining or oil and gas exploration, the Department is without jurisdiction.”  St. John Save Comm. V. DNR and Merchantile Natl. Bank, 5 CADDNAR 79, November 21, 1989.

 

132.           Charles Crafton’s identification of the spring fed wooded wetland on Claimant’s Exhibit C-1 places it outside the floodway and thus outside the jurisdiction of the Department. 

 

133.          There is no evidence to support the Claimants’ or Claimant Intervenors’ concerns that FW-23, 198 will negatively impact the American Bald Eagles or to refute Castrales’ determination that pursuant to State and federal law the Eagles are sufficiently protected by the previously established protection zones.

 

Trees Felled in the Floodway:

 

134.          The only evidence presented regarding the issue of trees felled in the floodway pertained to the Craftons’ concern that trees, shrubs and other brush that remained in the floodway for more than seven (7) days might attract rodents.

 

135.          No evidence was presented to suggest that Special condition # 7 of FW-23, 198 as written is improper with respect to the FCA.

 

136.          The Claimants have failed to bear their burden of proof on this issue.

 

Effect of FW-23, 198 on the Efficiency and Capacity of the Floodway and Flooding of Claimant’s Real Property:

 

137.          The Claimants and Claimant Intervenors have failed to prove by a preponderance of the evidence that activity undertaken under the authority FW-23, 198 will result in increased flooding of their respective real properties.

 

138.          To the contrary, the undisputed evidence reveals that the potential for the flooding of properties at points upstream of Hopkins’ planned sand and gravel quarry activities authorized by FW-23, 198, which includes the Maupin and DeArth properties, may actually be decreased by an increase in the efficiency and capacity of the floodway within the project limits of FW-23, 198.