CADDNAR

[CITE: Hobson Family Farms, LLC v. Lambermont & DNR, 11 CADDNAR 198 (2007)]

 

[VOLUME 11, PAGE 198]

 

 

Cause #: 07-012W

Caption: Hobson Family Farms, LLC v. Lambermont & DNR

Administrative Law Judge: Jensen

Attorneys: Bruner (Hobson); Van Gilder (Lambermont); White (DNR)

Date: September 21, 2007

 

 

[NOTE: ON OCTOBER 23, 2007, CLAIMANTS HOBSON FAMILY FARMS, LLC AND ROYDEN HOBSON SOUGHT JUDICIAL REVIEW IN THE PARKE CIRCUIT COURT CAUSE NO. 61C01-0710-MI-420. ON OCTOBER 10, 2008 THE PARKE CIRCUIT COURT ENTERED ITS ORDER. ON NOVEMBER 7, 2008, HOBSON FAMILY FARMS APPEALED LOWER COURT ORDER (61-A-01-0811-CV-00532). ON MARCH 5, 2009, THE INDIANA COURT OF APPEALS RULED: “APPELLANTS' MOTION TO DISMISS APPEAL IS GRANTED, AND THIS APPEAL IS HEREBY DISMISSED WITH PREJUDICE.”]

 

FINAL ORDER

 

153. The Department’s determination to issue Certificate FW-23862 to Lambermont, is affirmed.

 

 

FINDINGS OF FACT AND CONCLUSIONS OF LAW

 

PROCEDURAL BACKGROUND

 

1.      On January 5, 2007, Royden Hobson and Hobson Family Farms LLC (“Hobson”) initiated the instant proceeding by filing their Petition for Administrative Review and Stay of Effectiveness of Approval Number FW-23862 with the Natural Resources Commission (“Commission”). 

 

2.      The Department of Natural Resources (“Department”) issued to Ron Lambermont (“Lambermont”) a Certificate of Approval for Construction in a Floodway (“Certificate FW-23862”) based upon application number FW-23862.  Certificate FW-23862 authorizes Lambermont to prepare and operate a canoe launch within the floodway of Sugar Creek located in Parke County Indiana, immediately upstream of Turkey Run State Park.

 

3.      Certificate FW-23862 was issued under the authority of IC 14-28-1-1 et seq., also known as the Flood Control Act (“FCA”).

 

4.      The Department is the governmental agency charged with the responsibility of administering the FCA.

 

5.      Hobson is the owner of real property situated adjacent to Sugar Creek and adjoining the site owned by Lambermont upon which activities authorized by Certificate FW-23862 will be undertaken.

 

[VOL. 11, PAGE 199]

 

6.      Hobson alleges in the Petition that the Department, in issuing Certificate FW-23862, failed to impose conditions sufficient to protect the environment and Hobson and that activities authorized by Certificate FW-23862 have resulted in the intentional placement of fill in the floodway as well as the placement of fill into the floodway as a result of unchecked erosion. Hobson additionally alleges that increased canoe and recreational tubing in this segment of Sugar Creek will not only increase consequences of human injuries and the destruction of public and private property but will also have an unreasonable detrimental impact upon fish, wildlife and botanical resources.  More specifically Hobson sought an administrative hearing to address the following issues:

 

a.       Whether the construction and operation at the site will cause unreasonable detriment to the fish, wildlife and botanical resources of the stream;

b.      Whether the construction and operation at the site will cause unreasonable harm to life, safety and property;

c.       Whether the construction and operation at the site violates other statutory and regulatory protections of the subject stream, including, but not limited to, the Indiana Natural, Scenic and Recreational River Act, IC 14-29-6, the Indiana Nature Preserves Acts, IC 14-31-1, the state’s anti-degradation standards for water quality, 327 IAC 2-1-2 and 2-1.5-4, the Indiana Department of Environmental Management’s water quality certification requirements set out at Section 401 of the Clean Water Act, the state’s surface water quality standard set our at 327 IAC 2-1-6 and 2-1.5-8, protections afforded to species of plants and animals that are listed in Indiana as extirpated, endangered, threatened or rare, and the protections against unlawful dredging and filling under Section 404 of the Clean Water Act;

d.      Whether the cumulative effects of this project with respect to safety of life or property, and the fish, wildlife and botanical resources, dictate that the application should have been denied.

 

 

7.      Throughout the pendency of this proceeding Hobson has been represented by counselors, David C. Van Gilder and James A. Bruner.  Charles P. White, counsel, has represented the Department.  Counselors, Robert R. Clark and Lindy B. Burris, were retained by Lambermont on February 9, 2007 following the prehearing conference.

 

8.      A prehearing conference was scheduled and conducted on January 18, 2007 with all parties participating.  A hearing on Hobson’s motion for stay of effectiveness could not be scheduled before the effective date of Certificate FW-23862.  However, Lambermont agreed not to proceed with certain activities authorized by Certificate FW-23862 until the conclusion of the instant proceeding on the condition that the administrative hearing be held on the earliest date available to all parties.

 

[VOL. 11, PAGE 200]

 

 

9.      During the prehearing conference Hobson was advised that the Commission possessed no jurisdictional authority to determine matters associated with Title 327 of the Indiana Administrative Code or the federal Clean Water Act.  Mr. Van Gilder acknowledged his understanding of the Commission’s jurisdictional constraints.

 

10.  On February 20, 2007, Hobson filed their Verified Motion to Continue for the reason that Royden Hobson was unavailable due to medical reasons.  During an impromptu teleconference with the parties, it was determined that Hobson would withdraw the motion for stay of effectiveness in return for a continuance of the administrative hearing and the previously agreed upon partial stay would be immediately lifted.

 

11.  Ultimately, a two-day administrative hearing was conducted on May 9-10, 2007.

 

12.  The Commission is the “ultimate authority,” as defined at IC 4-21.5-1-15, for the Department with respect to the FCA.  IC 14-10-2-3.

 

13.  This proceeding is governed by the procedures set forth at IC 4-21.5-3 et seq., commonly referred to as the Administrative Orders and Procedures Act (“AOPA”) and administrative rules, found at 312 IAC 3-1-1 et seq., adopted by the Commission to assist in the application of AOPA to proceedings within its jurisdiction.

 

14.  Hobson acknowledged that Certificate FW-23862 will not result in unreasonable harm to life, safety or property and will not adversely impact the efficiency or capacity of the floodway.  The sole remaining issues for consideration involve Hobson’s allegation that the Department’s issuance of Certificate FW-23862 will directly and cumulatively have unreasonable detrimental impacts upon fish, wildlife and botanical resources.

 

 

FINDINGS OF FACT

 

15.  Hobson’s real property is situated directly across Sugar Creek from the project authorized by Certificate FW-23862. 

 

16.  Lambermont has owned Sugar Valley Canoes, providing cabins as well as kayak and canoe opportunities on Sugar Creek since 1981.  Presently, Lambermont utilizes several different public access sites and one private site for launching canoes and kayaks.  Testimony of Lambermont.

 

17.  Through the completion of the project, Lambermont intends to eliminate the need to use the public access launch sites that he presently uses, opting instead to launch canoes and kayaks for his recreational customers exclusively from his own private launch site.  Testimony of Lambermont. 

 

[VOL. 11, PAGE 201]

 

18.  Lambermont’s project, authorized by Certificate FW-23862, may generally be discussed in terms of three (3) interconnected components with those components including a “roadway,” a “landing area” and a “footpath/access area.”

 

19.  Travis Murphy (“Murphy”), an Environmental Scientist with the Department’s Division of Water who holds a degree in Public and Environmental Affairs from Indiana University was the administrative staff person assigned to the permit application for Certificate FW-23862.  In this role Murphy provided preliminary technical review including pulling and reviewing appropriate flood maps from which he plotted the project site, calculated the base flood elevation and conducted other background research for the file.  Murphy solicited relevant information from Departmental resources and routed the file, or pertinent information from the file, to other relevant staff including biologists, engineers and others in order to facilitate proper Departmental review.  Testimony of Murphy.   

 

20.  Murphy was never on Lambermont’s proposed site.  Testimony of Murphy.

 

21.  The evidence in this proceeding is complicated by the fact that there exists no floodway delineation for the segment of Sugar Creek associated with Certificate FW-23862.  Testimony of Murphy.

 

22.  Where, such as here, the floodway has not been delineated the appropriate method of ascertaining the floodway is to determine the base flood elevation (“BFE”).  With respect to the site associated with Certificate FW-23862, the Department established the BFE through two HEC RAS single cross section models with one based upon a Department Quadrangle map and the second based on Lambermont’s Topographical maps. Through this process the BFE was determined to be 539.3 feet above mean sea level.  The BFE determined by the Topographical map was consistent with the BFE calculated based upon the Quadrangle map leading Department staff to conclude that the determination was accurate.  Testimony of Murphy, Stipulate Exhibit I-4, Page 1.

 

23.  Consequently, any work below 539.3 feet would constitute work within the floodway.  Testimony of Murphy.

 

24.  Murphy’s review of the application was purely from a technical standpoint while Brian Boszor (“Boszor”) was primarily responsible for the environmental review associated with fish, wildlife and botanical resources.  Therefore, the application and pertinent environmental data was routed to Boszor.  Testimony of Murphy, Stipulated Exhibit I -6F.   

 

25.  According to Lambermont, the roadway, which was cut using excavators in an area outside the floodway, or above 539.3 feet, was constructed before he applied for Certificate FW-23862.  The roadway varies between twelve and eighteen feet in width and has been covered with gravel. 

 

[VOL. 11, PAGE 202]

 

26.  John Hall (“Hall”), a Field Inspector and Investigator for the Department’s Division of Water since 1982, was not involved in the Department’s review of Lambermont’s permit application for Certificate FW-23862, but did have history with Lambermont’s project. 

 

27.  In reviewing Lambermont’s application for Certificated FW-23862, Murphy and others involved in the review consulted with Hall. 

 

28.  Hall had visited the site approximately twenty-five times commencing in November 2005, during Lambermont’s excavation of the roadway, with the last visit occurring in May 2007.  Hall’s involvement with the site resulted from local concerns expressed about Lambermont’s work.  Hall’s site visits were intended only as a means of monitoring Lambermont’s work in relation to the floodway.  Testimony of Hall.

 

29.  At no time was a survey conducted to ascertain with certainty the location of the floodway.  Testimony of Lambermont.

 

30.  However, if large or extensive impacts are expected to result from a proposed project, the Department requires the applicant to provide appropriate surveys confirming the actual floodway location.  The Department made no such request of Lambermont with respect to the instant permit application.  Testimony of Murphy.

 

31.  Hall, who possesses a Civil Engineering degree from Tri-State University, also testified that during one of his site visits he attempted, based upon site conditions and observations, to identify a line of demarcation of the floodway.  Testimony of Hall.

 

32.  Hall’s identification of the floodway in question was made possible by 35 years of experience involving the viewing of 50 floodways per month.  Hall’s floodway determination was based on his observation of the site and estimation of the 100 year flood elevation.  Hall observed the steepness of the bank and further determined that the floodplain for this bank would be the same as the floodway.  However, Hall recognized that his ability to determine the exact location of a floodway is essentially his “best guess” based upon his education, training and experience.  Testimony of Hall.

 

33.  Lambermont’s and Hall’s testimony was consistent with respect to the fact that Hall identified a tree on Lambermont’s property that Hall believed was consistent with the floodway line.   

 

34.  However, Hall’s testimony disputes Lambermont’s belief that the roadway is located entirely outside the floodway.  Hall testified that, “by his estimates” the lower end of the roadway, approximately ten feet (10’), is, in fact, located within the floodway.

 

[VOL. 11, PAGE 203]

 

35.  The roadway leads in a northwesterly direction somewhat parallel to Sugar Creek with the lower end of the roadway lying adjacent to the landing area.

 

36.  The landing area is approximately 100 square feet in size and represents the point Lambermont believed was just within the floodway.  The landing area is a naturally occurring level area downgrade from the roadway that provides access to the footpath that leads back in a general southeasterly direction to the access area on the bank of Sugar Creek.  The landing was naturally comprised of only sand, gravel and silt without vegetation.    Testimony of Lambermont and Hall. 

 

37.  According to Lambermont, the excavator had left tracks on the landing area during construction of the roadway.  While Lambermont acknowledged the possibility that some gravel placed on the roadway may have fallen onto the landing, the only other work conducted on the landing was that required by the Department to repair the ruts in an effort to eliminate or minimize erosion.  Testimony of Lambermont, Stipulated Exhibit I-3, Page 2.

 

38.  Hall concurred that a “minute” amount of sediment from the roadway might be found on the landing, but that no excavation or fill was involved with Lambermont’s use of or work associated with the landing area.  Testimony of Hall.

 

39.  The project description contained within Certificate FW-23862, which states that “a small amount of fill and gravel was used to level the landing area…” was written by Murphy and possibly modified by Jim Hebenstreit or Mike Neyer.  Murphy explained that he understood from Hall and Ken Smith, who visited the site that it appeared as though fill had been pushed onto the landing to level it up.  Murphy acknowledges that his writing of the project description is based upon reports from Hall whose testimony is in direct conflict with the sentence contained within the project description.  Hall’s own testimony regarding his on site observations must be accepted here.  Furthermore, a reasonable inference may be drawn that this portion of the Department’s project description relates to Lambermont’s work to remove the excavator tracks at Hall’s request.  Stipulated Exhibit I-12, I-3, Page 2, Testimony of Murphy, Hall and Lambermont.  This inference would resolve the otherwise apparent conflict. 

 

40.  Lambermont acknowledged that the landing area, located between the roadway and the footpath/access area, is within the floodway of Sugar Creek.

 

41.  Hall agreed that the landing area is located within the floodway.

 

42.  The footpath/access area, which is undisputedly located entirely within the floodway of Sugar Creek, was, according to Lambermont, originally a wildlife path.  Testimony of Hall and Lambermont.

 

[VOL. 11, PAGE 204]

 

43.  Hobson testified that during Lambermont’s excavation of the roadway, a certain degree of excavation activity occurred within what he believed was the floodway.  Particularly, Hobson provided a photo of a situation in which the bucket of the excavator is clearly below the roadway area in such a position that one might believe excavation of the floodway was occurring.  Testimony of Hobson, Claimant’s Exhibit 2.

 

44.  However, Lambermont maintained that no excavation work was completed within the floodway and explained that the photo depicted a situation in which the excavator, while constructing the roadway, had slipped off the higher ground and had used its bucket against the lower ground for stabilization and to essentially assist in lifting the excavator back onto the roadway.  Furthermore, additional photos of the same general area where Hobson viewed the excavator’s bucket on the ground below the roadway reveal no excavation of the lower ground.  Testimony of Lambermont, Claimant’s Exhibit4, 5 & 6.

 

45.  However, the activity of using the excavator’s bucket to stop the slide left depressions and tracks in the ground below that Lambermont, at Hall’s request, leveled and revegetated for erosion control.  Testimony of Lambermont.

 

46.  Hall agreed that the entire footpath, which he estimated to vary from 5 to 10 feet in width, was “all natural ground” without signs of fill or excavation.  Although brush and weeds may have been removed from the footpath.  Testimony of Hall.

 

47.  Murphy; however, testified that according to photographs the footpath was a “matted,” “compacted” path and it was “obvious that excavation had taken place” but there was no gravel or fill placed on top.  Testimony of Murphy.

 

48.  The discrepancy between Hall’s and Murphy’s testimony must be resolved in favor of Hall who had been present at the site approximately 25 times and who had the opportunity to view the site first hand as opposed to Murphy, whose conclusion is based solely upon photographs.  Testimony of Hall and Murphy.

 

49.  It should also be noted that Certificate FW-23862 was issued as an after-the-fact permit, meaning that certain floodway construction activities had occurred in advance of the issuance of the permit, and authorizes the removal of stumps from the footpath/access area.  Stipulated Exhibit I-12.  Ground disturbance associated with stump removal could be interpreted from photos as excavation.      

 

50.  With respect to cumulative effects, the Department “typically takes any permit … permits that have been issued within about a mile upstream and downstream and do a cumulative effects review.”  With respect to the environmental review, similar data, including consideration of fish and wildlife comments pertaining to other permits in the area, is identified, researched and routed to the assigned environmental biologist.  Testimony of Murphy.

 

[VOL. 11, PAGE 205]

 

51.  Jon Eggen (“Eggen”), who holds a Bachelor’s degree in Biology from North Dakota State and who has completed three years of graduate studies in Aquatic Ecology and has worked for the Department for four years, first as a Statewide Biologist and then as the Environmental Unit Supervisor for approximately two years until his recent promotion to head of the Compliance and Enforcement Section, supervised the environmental review of Lambermont’s application for FW-23862.  In that role he supervised Murphy, Boszor and Stanifer in assuring that the review process moved forward efficiently and in a quality manner.  Testimony of Eggen.

 

52.  Boszor, who earned a Bachelor of Science degree in Forestry and Wildlife Management from Purdue University, was assigned to review Lambermont’s application for Certificate FW-23862 with respect to the project’s impacts, including cumulative impacts, upon fish, wildlife and botanical resources.  Boszor has been employed by the Department as its Central Region Environmental Biologist for five years.  In this capacity Boszor is responsible for evaluating fish and wildlife impacts associated with 200 to 300 floodway permits annually.

 

53.  Boszor’s review is completed in cooperation with other Department Divisions that were solicited for information regarding the site.  Department Divisions from which site information was sought included the Division of State Parks and Reservoirs and the Division of Law Enforcement, and additional information was obtained from databases maintained by the Division of Outdoor Recreation and the Division of Nature Preserves.  Testimony of Murphy, Testimony of Christie Stanifer (“Stanifer”), Stipulated Exhibit I-6A-G.

 

54.  Boszor’s review included a site visit, consideration of all Departmental data and other information received forwarded by Murphy.  Through the Division of Nature Preserves it was determined that certain listed, threatened, or endangered species of flora were located within one-half mile of the site, most likely within the Rocky Hollow-Falls Canyon Nature Preserve; however, none of these species were found at the proposed project site and the habitat at the site was inadequate to support the species.  Testimony of Boszor.  Furthermore, Cloyce Hedge, of the Department’s Division of Nature Preserves reported with respect to the application for Certificate FW-23862 that as long as the project was confined to the proposed project limits there should be no impact to these resources.  Testimony of Eggen.

 

55.  Sugar Creek is identified as an Outstanding River but is not a Scenic River.  Where there is an outstanding resource, the Department considers how the project fits into the overall landscape and the effects of materials used.  Typically materials used in these areas are natural as opposed to man-made and are more “fish and wildlife friendly.” Customarily these considerations involve projects such as the construction of a seawall along the bank of a Scenic River but Certificate FW-23862 merely authorized “clearing a pathway down to the creek and so a lot of those issues didn’t come to play in this assessment.”  Testimony of Boszor and Eggen. 

 

[VOL. 11, PAGE 206]

 

56.  At the time of Boszor’s site visit in July 2006, Lambermont’s roadway was under construction.  Through Departmental correspondence, Boszor was of the understanding that Lambermont’s entire proposed project occurred outside of the floodway with the exception of the footpath/access area to be placed from the landing to the bank of Sugar Creek.  Therefore, his environmental assessment focused solely on the footpath/access area and did not consider the landing or any portion of the roadway. Testimony of Boszor.

 

57.  The area within which the footpath was to be placed was generally level with some undulation that Boszor described as an overbank scour area on the inside bend of Sugar Creek.  Testimony of Boszor.

 

58.  Boszor testified that this review considered only impacts specific to Lambermont’s proposed project site and did not encompass other projects in the vicinity.  However, Boszor was aware of another canoe launch across the creek that he did not view as part of his site visit.  Testimony of Boszor. 

 

59.  Boszor concluded, based upon his environmental assessment, that through the project authorized by Certificate FW-23862 “approximately 0.02 acres of wooded and/or herbaceous habitat will be cleared…the clearing limits are well below the 1 acre threshold for riparian habitat mitigation” Boszor recognized that ongoing use of the “long steep road now leading to the site” (footpath) increased the potential for erosion as a result of concentrated runoff.   While Boszor’s testimony reflected that he did not consider other sites within the vicinity, his report, dated September 13, 2006 clearly reflects his consideration of erosion and vegetative trampling presently occurring at the canoe access site located on the other side of the creek in developing appropriate erosion control measures and revegetation requirements.  Testimony of Boszor, Stipulated Exhibit I-6A.

 

60.  Boszor who conducts environmental assessments and prepares associated reports for all floodway permit applications in Indiana’s central region did not recall in five years time even one other permit review involving Sugar Creek.

 

61.   With respect to the project’s impacts upon fish and wildlife resources, Boszor reflected that “canoe access has been a part of this segment of Sugar Creek for many years and local fish and wildlife resources have become acclimated to recreational users of the stream.  It is unlikely that the addition of a new canoe launch will have unreasonably detrimental impact to the proposed site or to local fish, wildlife, or botanical resources…” provided that certain specific conditions are imposed upon Certificate FW-23862.  Stipulated Exhibit 6-A. 

 

[VOL. 11, PAGE 207]

 

62.  Boszor, with input from Eggen, suggested certain restrictions, including the following:

The approximately 14’ wide by 75’ long area must be underlain with permanent turf reinforcement matting and revegetated with a mixture of grasses, sedges, and wildflowers native to Central Indiana and specifically for stream bank/floodway stabilization purposes as soon as possible upon completion of the clearing activity.  Permanent turf reinforcement mattings allow vegetation to be maintained in areas where flow conditions and pedestrian traffic exceed the limits of natural vegetation.  Permanent turf reinforcement mattings utilize a permanent structure to reinforce vegetation at the root and stem level.

 

Minimize the removal of trees and shrubs as they will help stabilize the soil and prevent erosion.

 

No mechanical clearing is allowed outside of the 14’ wide by 75’ long permitted area.

 

All erosional areas that develop due to concentrated flow or increased foot traffic must be immediately stabilized with permanent turf reinforcement mats and appropriate natural barriers to additional traffic or erosion should be installed.

 

Remove all unpermitted fill that has been placed within the floodway within 90 days and stabilize with erosion control blankets or turf reinforcement mats.

 

The cleared pathway must be separated from the surrounding habitat such that pedestrian traffic in unreinforced areas is not likely to occur and that vehicular traffic is not permitted within the floodway limits.  The use of signs, boulders, and cabled logs are acceptable means of demarcating the canoe access path.  No storage of canoes, trailers or vehicles will be permitted within the floodway.  The site must be maintained free of trash and other debris.

 

Stipulated Exhibit I-6A, Testimony of Boszor and Eggen.

 

63.  Ultimately, Boszor’s recommended special conditions were included in Certificate FW-23682.  Stipulated Exhibit I-12.  

 

[VOL. 11, PAGE 208]

 

64.  Boszor testified with respect to the impact of the project upon fish, wildlife and botanical resources: “I can’t say that it’s going to have a necessarily positive effect, but I can’t say that it’s going to have an unreasonably negative effect either.”

 

65.  Boszor explained that “unreasonably detrimental” impact would be determined based on “the size of the impact, whether or not the project is going to be specifically targeting a specific fish and wildlife resource, if it’s going to be taking place over an unreasonable period of time, if it would impact any breeding activities of any local fish and wildlife species, if there were any hits in sightings of threatened, endangered or rare species…those are the things that I look at in assessing unreasonably detrimental impacts.”  Testimony of Boszor.

 

66.  The project authorized by Certificate FW-23862 is approximately 0.02 acres, which is tiny in comparison to other projects reviewed, and this site is not particularly suited to sustain targeted, or rare, endangered or threatened species.  Testimony of Boszor.

 

67.  Within the experience of the Department it is rare that an application involving a site as small as the one involved with Certificate FW-23862 would receive as much attention as this application did.  In fact, initially the permit application was reviewed to ascertain whether Lambermont’s project required a permit or whether the project met the criteria for a de minimus exception to the permit requirements because the impacts on the floodway would be so minor.  Testimony of Eggen.

 

68.  Eggen proceeded to explain that “you could basically carry canoes all day back and forth across the floodway and you would not need a permit for that, which is why I said this could be very close to de minimus.”  In fact Eggen elaborated that “…you don’t need a permit to drive in the floodway, walk in the floodway, carry stuff in the floodway…just in general you would not need a permit to launch canoes in a floodway.”  Testimony of Eggen. 

 

69.  Boszor recognized that activities occurring on an outside bend of a stream are more prone to erosional forces than activities occurring on the inside of a bend.  The project authorized by Certificate FW-23862 occurs on the inside bend.  Testimony of Boszor. 

 

70.  One of the public access sites utilized by Lambermont is the Brush Creek Public Access Site.  Testimony of Lambermont.  The Brush Creek public access site was reviewed by Eggen who testified that nothing similar to the special conditions that were imposed upon Certificate FW-23862 had been required at the time the Brush Creek public access site was constructed.   Eggen observed that the Brush Creek public access site is “dumping a lot of sediment into the creek” and offered his opinion that use of the site authorized by Certificate FW-23862, with all special conditions in place, would be greatly preferable from an aquatic ecology standpoint, to the use of the Brush Creek public access site.   

 

[VOL. 11, PAGE 209]

 

71.  A wetlands assessment was also conducted by Civil and Environmental Consultants, Inc. (“CEC”) at the project site authorized by Certificate FW-23862.

 

72.  Gregory Gerke (“Gerke”), an Ecologist at CEC who holds a Bachelors degree in Environmental Planning from Indiana University and a Bachelors degree in Natural Resources Management, Geography and Biology from Ball State University, conducted the review.

 

73.  Gerke acknowledged his lack of familiarity with the project authorized by Certificate FW-23862 stating that he was simply requested to analyze the site with respect to wetland and streamway issues “…if someone were to do some type of development.  They didn’t really tell me who or what.”  Essentially his analysis focused on wetlands issues and erosion issues.  Testimony of Gerke.

 

74.  Gerke reviewed mapping consisting of the Wallace, Indiana Quad Map and National Wetlands Inventory Map as well as local soil survey maps and aerial photography before conducting a site inspection.  Claimant’s Exhibit 17.

 

75.  Documentation revealed to Gerke that some wetlands existed within the area covered by Certificate FW-23862 but soil surveys indicated the existence of only soils containing hydric inclusions but no soils actually considered to be hydric as identified in “Hydric Soils of Indiana” (USDA, 1992.).  Testimony of Gerke and Claimant’s Exhibit 17.

 

76.  Gerke observed during his on site assessment the “presence of wetland hydrology…on the lower portions of the site.” Further Gerke identified sandy soils in sloughs between Sugar Creek and the upland areas where high organic content existed in the surface layer and “floodplain/riparian flora including several species that are considered hydric.”  Ultimately, Gerke’s site assessment revealed the existence of hydric soils at the site.  Claimant’s Exhibit 17. 

 

77.  Gerke acknowledged that the identified wetland areas were “probably” less than one tenth of an acre. 

 

78.  Activities within a floodway that would cause impacts included “filling, dredging, soil compaction, removal of trees or understory, erosion control or bank stabilization features and culverts.” Testimony of Gerke, Claimant’s Exhibit 17.

 

79.  Although he did observe Lambermont’s roadway construction activities that were occurring outside the floodway, at the time of his site inspection Gerke observed none of these impact causing activities occurring within the floodway.    Testimony of Gerke.

 

[VOL. 11, PAGE 210]

 

80.  Gerke had not returned to the site since activity authorized by Certificate FW-23862 had commenced.  Testimony of Gerke.

 

81.  Gerke offered no opinion as to the effects of the project authorized by Certificate FW-23862 upon the wetlands or upon fish, wildlife or botanical resources except to state that compactions caused by constant foot traffic, depending upon frequency and intensity, could have a negative impact upon the hydrophytic vegetation that he identified at the site.  Testimony of Gerke.

 

82.  Eggen, who was familiar with the project authorized by Certificate FW-23862 and who visited the project site, considered the wetlands impacts of the project and ascertained that the wetlands would not be seriously impacted.  Testimony of Eggen.

 

83.  Dr. James R. Gammon (“Gammon”), a Professor Emeritus in Zoology at DePauw University, who holds a Bachelor of Science degree from the University of Wisconsin Whitewater and a Masters and PhD from the University of Wisconsin at Madison and whose area of concentration is in aquatic ecology, was consulted to provide his observations.  Testimony of Gammon.

 

84.  During his tenure at DePauw, Dr. Gammon studied several rivers in Indiana, including Sugar Creek.  The studies conducted by Dr. Gammon involved the assessment of water quality based upon evaluations of the fish community.  In so doing, it has been determined that the best fish communities will typically be found in rivers and streams possessing better chemical and physical qualities.  Testimony of Gammon.

 

85.  Dr. Gammon elaborated that good quality fish communities are comprised of an abundance of diverse species.  In conducting the stream quality analyses, numerical equivalents were assigned based upon the quality of the fish community in calculating the overall quality of the river or stream studied.  Testimony of Gammon. 

 

86.  Through this method, Dr. Gammon’s evaluation of Sugar Creek identified parts of it as “an exceptionally good stream, probably the best in the entire western part of Indiana…”  Dr. Gammon clarified further that there is a long length of Sugar Creek beginning upstream of Crawfordsville downstream almost to Turkey Run that is “very good.”  Testimony of Gammon.

 

87.  Dr. Gammon visited the site of the project authorized by Certificate FW-23862 on two occasions.[1]  Testimony of Gammon.

 

88.  In Dr. Gammon’s opinion there are situations in which the review of one particular issue and a small cross section of the stream would be appropriate for the determination of effects on the ecology of a stream.  These occasions would involve a large chemical or physical change, such as hot water suddenly entering a cool water stream, salty sewage effluent entering a stream, or other situations in which the impacts are “fairly easy to tell.”  Testimony of Gammon.

 

[VOL. 11, PAGE 211]

 

89.  Dr. Gammon expressed his general opinion that the impacts of siltation and periodic sedimentation “are extremely difficult to evaluate” and could not be determined by consideration of an isolated project or stream segment.  Testimony of Gammon.

 

90.  Hall testified that he had not observed sediment being deposited from roadway into floodway and that erosional ruts existed in the roadway only during its initial construction.  Overall, Hall observed no “extraordinary” erosion except when the sidebank on the roadway was soft before installation of erosion control measures and never observed any sedimentation from Lambermont’s activity reaching the channel of Sugar Creek or the floodway.  Testimony of Hall. 

 

91.  Eggen explained that Special Condition #5, which requires the underlayment of the footpath with permanent turf reinforcement matting along with revegetation, was designed to address erosion issues that may develop in association with Lambermont’s canoe launch.  Eggen described the turf reinforcement mats as an incredibly strong course sponge that will allow vegetation to grow through but will also withstand frequent foot traffic and the dragging of canoes.  Testimony of Eggen. 

 

92.  Special Condition #7 and #8 were imposed upon Certificate FW-23862 to provide a mechanism for restricting the type of traffic allowable upon the footpath and to direct all traffic to areas underlain with the permanent turf reinforcement matting as well as provide an ongoing means of addressing unexpected erosional areas that might develop through actual use.  Testimony of Eggen.     

 

93.  Other canoe sites upstream and downstream of this site, particularly canoe access sites located near Cox Ford Bridge were viewed and the problems observed were considered with respect to cumulative effects and in developing the special conditions with respect to Certificate FW-23862.  Testimony of Eggen.   

 

94.  Dr. Gammon acknowledged his particular concern regarding sedimentation and generally agreed that many of the special conditions imposed upon Certificate FW-23862 would address, to varying degrees, his concerns about sedimentation issues. Testimony of Gammon, Stipulated Exhibit I-12.     

 

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95.  However, Dr. Gammon acknowledged that he was uninterested in the permit acknowledging having read it but explaining that “reading and understanding a permit is not something that I am interested in particularly and not something I understand particularly.”  Testimony of Gammon.

 

96.  Dr. Gammon had gleaned sufficient familiarity with the project authorized by Certificate FW-23862 to express his understanding that the overall effects would be difficult to evaluate because of the sporadic nature of the impacts.  Testimony of Gammon.

 

97.  Dr. Gammon stated unequivocally that any human or animal activity in the river corridor will have an impact but agreed that any attempt to quantify that impact would be speculative.  Testimony of Gammon.

 

98.  Dr. Gammon collected no data and performed no tests as part of his site review.  Testimony of Gammon.

 

99.  Dr. Gammon refused to express an opinion as to the effect of the project authorized by Certificate FW-23862 upon fish, wildlife and botanical resources or the cumulative effect of the project upon Sugar Creek stating that there is “too much that is unknown about it.”  Testimony of Gammon.

 

100.          Factors cited by Dr. Gammon that would be necessary to a consideration of the cumulative effects of the project authorized by Certificate FW-23862 included information regarding the intensity of the usage, whether usage is sporadic or continual, and the extent to which additional projects exists or are reasonably foreseeable.  Testimony of Gammon.

 

101.          Dr. Gammon testified that “It’s not in the realm of possibility to really, unless you have unlimited manpower and money and technology, to really do a complete analysis of the impacts to any stream system because it has to be done very thoroughly and it would involve many, many different techniques and people who are competent in those techniques and you would have to do it for a period of time because weather, again, is a factor that you have no control over whatever and you can measure the effects of it but you can’t control it…”  Testimony of Gammon.

 

102.          Dr. Gammon testified that there is a wealth of research involving Sugar Creek that should have been considered before reaching a conclusion regarding the impacts of this project.

 

103.          Various studies and research documents were received by the Department through the public hearing and were reviewed and considered by Department staff.  Testimony of Eggen.  One particular report of a study of darters found on Sugar Creek that was provided to the Department and evaluated with “great interest” by Eggen.  Eggen recognized that sediment is a problem, particularly for darters and explained that the particular effort in developing the special conditions associated with Certificate FW-23862 to some extent resulted from the information gleaned from these documents and research information.  Testimony of Eggen. 

 

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104.          Eggen did not dispute Dr. Gammon’s position that ideally all available literature would be reviewed and all reasonable analyses would be conducted for each permit reviewed; however, similar to Dr. Gammon’s conclusion Eggen explained that to do so is impossible in the context of the number of permit reviews conducted by the Department.  Testimony of Eggen.  Instead, Eggen explained that in order to operate efficiently, the Department has established mechanisms that allow staff to sift through information maintained by all Department Divisions and identify pertinent information to be considered by appropriate staff such that each permit receives review with respect to “relevant literature, related files, what’s up stream, what’s downstream, what’s close by, what documentation did we get, we review that such as the darter paper, anything else that we can find…”  Testimony of Eggen.   

 

105.          Hobson’s predominant concern relates to the increased number of canoes resulting from the addition of another canoe launch site and knowledge that the added launch site will not increase the number of canoes would, to a degree, alleviate his concerns.  Testimony of Hobson.   

 

 

CONCLUSIONS OF LAW

 

106.          A proceeding for administrative review is conducted de novo requiring the administrative law judge to independently consider the evidence without deference to the Department’s initial determination.  Crafton, et al. v. DNR and Hopkins, 10 CADDNAR 227 (2006).

 

107.          In this instance, where the Department has reached an initial determination to approve a permit, the party seeking to set aside the Department’s approval bears the burden of proving by a preponderance of the evidence that the Department’s action was in error.  Id and IC 4-21.5-3-14(c).

 

108.          The FCA requires the Department to issue a permit after the applicant clearly establishes that the project will not (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; or, (3) Result in unreasonably detrimental effects upon fish, wildlife, or botanical resources.  The Department is also required to consider the cumulative effects of the project. IC 14-28-1-22(e).

 

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109.          “Cumulative effects” are defined as “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…”  Consideration of the adverse effects on the efficiency of, or undue restriction to the capacity of the floodway, unreasonable hazard to the safety of life or property and unreasonable detrimental effects upon fish, wildlife and botanical resources shall be considered in assessing cumulative impacts.  312 IAC 10-2-19.

 

110.          An unreasonable detrimental effect upon fish, wildlife, and botanical resources is “…damage to fish, wildlife, or botanical resources that is found likely to occur by the 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 director.  312 IAC 10-2-39.

 

111.          The sole issues for consideration relate to whether Certificate FW-23862 will result in unreasonable detrimental effects to fish, wildlife and botanical resources or that the impacts associated with Certificate FW-23862 relating to fish, wildlife or botanical resource, in conjunction with other projects, past, present or reasonably foreseeable in the future, are cumulatively unreasonable. 

 

112.          The Department is a creation of the General Assembly possessing only those powers and authorities expressly granted.  Hoosier Environmental Council v. RDI/Caesar’s Riverboat Casino, LLC, and DNR, 8 CADDNAR 48 (1998).    The Department’s jurisdiction, with respect to all considerations under the FCA, is limited to activity occurring within the floodway.  This regulatory restriction has previously been determined to preclude the Department from considering the impact of activities occurring outside the floodway but which may have impacts inside the floodway.  Black v. DNR and Grace Fellowship Church, 7 CADDNAR 105 (1995), in which it was determined that only those portions of a project occurring within the floodway were properly considered in determining that the flood stage would not be increased and no significant harm would befall fish, wildlife and botanical resources.

 

113.          In this instance, it is undisputed that Lambermont’s landing and footpath/access area are totally within the floodway of Sugar Creek. 

 

114.          With respect to the roadway, Hall, the only expert offering testimony regarding the location of the floodway, placed the lowest most ten feet (10’) of the roadway within the floodway.  Based upon Hall’s testimony it must be concluded that approximately ten feet (10’) of the roadway is located within the floodway of Sugar Creek. 

 

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115.          Consequently, the landing, the footpath/access area and ten feet (10’) of the roadway will be considered with respect to direct and cumulative effects upon fish, wildlife and botanical resources. 

 

116.          The evidence is undisputed that the landing was, in its natural state, comprised of sand, silt and gravel with little or no vegetation.  The landing was not altered by Lambermont except to the extent necessary to repair excavator tracks at the request of the Department to minimize erosion.

 

117.          The evidence is similarly not disputed that the footpath/access area was, in its natural state, a wildlife path.  Furthermore, the testimony of witnesses who have actually been on site and observed the footpath first hand agree that no excavation has occurred with respect to the footpath.  It is noted, however, that Certificate FW-23862 authorizes the removal of stumps from this area which might create the appearance of excavation activities.   

 

118.          Also not disputed is the evidence that the lower ten feet (10’) of roadway was excavated involving the destruction of a shale overbank and removal of trees and vegetation and the filling with a layer of gravel.

 

119.          Hobson presented four witnesses who discussed the direct impacts of the Certificate FW-23862 project upon fish, wildlife and botanical resources. 

 

120.          Of particular interest to all of the experts was sedimentation of the stream and the floodway resulting from erosional forces occasioned by concentrated water flows from the excavated roadway and heavily trafficked landing and footpath/access area.

 

121.          Gammon, based upon his lack of knowledge of the project was simply unable to and properly refused to offer an opinion as to the direct impacts of Certificate FW-23862 upon fish, wildlife or botanical resources.  

    

122.          Gerke, who was retained to conduct a site assessment with respect to wetland issues for use if some development were to be proposed in the future, was not retained for the purpose of expressing an opinion as to the project’s impacts upon fish, wildlife or botanical resources and acknowledged his inability, based upon the assessment he conducted, to offer such an opinion.   

 

123.          Both Gammon and Gerke did offer general observations regarding activities that might cause detrimental effects upon fish, wildlife or botanical resources.  This included Gammon’s observation that any human or animal activity in a floodway would cause an impact and discussion particularly about agricultural practices upon the ecology of a stream.  Gerke identified a number of actions, such as compaction, filling and dredging, that would cause impacts. 

 

[VOL. 11, PAGE 216]

 

124.          However, neither Gammon nor Gerke applied those observations to the specific project authorized by Certificate FW-23862 except to express concern that traffic associated with 200 or more canoes per weekend through the summer months could cause soil compaction and vegetative trampling leading to soil instability, erosion and sedimentation.

 

125.          Only Eggen and Boszor, who were both familiar with Certificate FW-23862 and the site, were willing and able to offer an opinion as to the project’s direct impacts upon fish, wildlife or botanical resources and while Boszor concluded that the impacts would not be positive, both agreed that the impacts would not be unreasonably detrimental within the meaning of 312 IAC 10-2-39.

 

126.          Hall testified that in the twenty-five visits to the site associated with Certificate FW-23862, he had observed no significant erosion except during the initial construction of the roadway before erosion control measures were implemented. 

 

127.          Gerke, Gammon, Boszor and Eggen each conducted one or more site visits during or after Lambermont’s excavation of the roadway.  None testified to having observed evidence within the floodway of sedimentation or other consequences related to concentrated water flows.

 

128.          The Department’s special conditions to Certificate FW-23862 were developed, through the work and analysis of Boszor and Eggen, for the particular purpose of addressing erosion and sedimentation issues associated with the activities proposed to occur within the floodway, which would consist primarily of foot traffic and the dragging of canoes.

 

129.          Eggen testified that the erosion control features included as special conditions to Certificated FW-23862, were added as a result of data obtained during the review that indicated the existence of darters, a species known to be very susceptible to harm from sedimentation.    

 

130.          While Gammon would not speculate as to the overall impacts of Certificate FW-23862, he did acknowledge that certain of the special conditions developed by Boszor and Eggen would be effective at reducing erosion and sedimentation.

    

131.          Within the Department, its Division of Water is statutorily responsible for taking action on applications submitted pursuant to the FCA.  However, the Division of Water coordinates with the Department’s Division of Fish and Wildlife to fulfill the FCA’s requirements to consider direct and cumulative impacts to fish, wildlife and botanical resources. 

 

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132.          The Department has implemented a method by which office and field staff work as a cooperative unit in the review of floodway permit applications.  Office personnel, in this instance Murphy, an Environmental Scientist, and Stanifer, an Environmental Coordinator, fulfill varying responsibilities associated with administrative and technical functions such as ensuring the completeness of the application, site identification, soliciting input from appropriate Department Divisions based upon site and project specifications, as well as reviewing databases for past and contemporaneous activity in the vicinity, among other responsibilities.  The data collected is reviewed and distributed as necessary to field personnel who will be aided by the information in fulfilling their project review obligations. 

 

133.          With respect to Certificate FW-23862, it was identified that the site was within one-half mile of Rocky Hollow-Falls Canyon Nature Preserve and according to the Indiana Natural Heritage Data Center’s Database was within one-half mile of endangered, threatened or rare fish, wildlife or botanical resources.  It was also determined that the project involved the floodway of a Listed Outstanding River.  In addition to receiving input from the Division of Nature Preserves, comments and information were also solicited from the Division of State Parks and Reservoirs due to the close proximity of the project to Turkey Run State Park, the Division of Law Enforcement, Division of Historic Preservation and Archeology and the Division of Outdoor Recreation. 

 

134.          Through Departmental coordination its Division of Nature Preserves was consulted and offered the observation that the project would have no adverse impacts provided it remained within the proposed geographical area. 

 

135.          Boszor’s knowledge of the endangered, threatened or rare species of fish, wildlife or botanical resources located within one half mile of the project site enhanced his ability to conduct the on site evaluation of the application for Certificate FW-23862, by placing him on notice that the species and habitat appropriate to sustain such species existed nearby thereby lessening the potential that the species or their habitat would be overlooked. 

 

136.          Although Hall, who works for the Division of Water’s Compliance and Enforcement Section, is not involved with the review of permit applications, the consideration of his reports and input, developed through his involvement with the site that resulted from concerns of Lambermont’s neighbors, including Hobson, clearly reveals that consideration was given to contemporaneous events occurring in the area.

 

137.          In the five years that Boszor has served as the Central Region Environmental Biologist, he did not recall another permit review associated with the floodway of sugar creek indicating the non-existence of past floodway projects to consider with respect to cumulative effects.

 

[VOL. 11, PAGE 218]

 

138.          This coordinated system of review also provides for oversight and a certain degree of overlapping authority and responsibility within the Division of Water and the Division of Fish and Wildlife, the two Department Divisions most closely involved in the review of permit applications submitted under the FCA.

 

139.          Although Boszor testified that his evaluation of application for Certificate FW-23862 involved only the particular site involved, his recommendations clearly reveal that he considered the Brush Creek canoe launch site located directly across Sugar Creek from which he reported that erosion problems have resulted from concentrated runoff and vegetative trampling.  Consequently, despite his testimony it is obvious that Boszor did consider other sources of sedimentation in conducting his review.

 

140.          Boszor also recognized, and reported within his assessment, that the stream segment at issue is a heavily trafficked recreational river segment having been used for canoeing for many years.  This observation clearly reflects Boszor’s consideration of the type of use and frequency of use experienced by the particular stream segment and the nearby canoe launches in evaluating the extent of the potential impact to fish, wildlife and botanical resources.  

 

141.          Not only did Boszor consider whether increased impacts upon fish, wildlife and botanical resources would result but also considered that the canoe launch proposed in Certificate FW-23862 would be operated on an inside bend of Sugar Creek, where erosional forces are decreased in comparison to erosional forces at play on the outside bend of Sugar Creek, where the Brush Creek canoe launch is located.

 

142.          Further evidence that the project associated with Certificate FW-23862 will not cumulatively impact fish, wildlife or botanical resources is the fact that this site will replace Lambermont’s use of the Brush Creek public access site, thereby decreasing activity at that Brush Creek, which is “dumping” sediment into Sugar Creek.

 

143.          In combination with Boszor’s review was the somewhat overlapping review conducted by Eggen, who during a separate site visit viewed Lambermont’s entire site, including Lambermont’s roadway, as well as public access sites upstream and downstream, including the Brush Creek access and two additional access sites located at the Cox Ford Bridge. 

 

144.          Eggen further reviewed informational documentation obtained during the public hearing and from other sources throughout the period of time associated with the review of Lambermont’s application for Certificate FW-23862.  One of the informational documents Eggen particularly recalled studying with “great interest” was a reported fish study relating to darters in Sugar Creek that was written by Gammon.

 

[VOL. 11, PAGE 219]

 

145.          As a result of their review Boszor and Eggen determined that the cumulative effects associated with Certificate FW-23862 upon fish, wildlife and botanical resources was “minimal” if the imposed special conditions were implemented to address erosion and sedimentations issues.  Testimony of Eggen.

 

146.          Gammon’s suggestion that an appropriate review of cumulative effects would involve a lengthy period of time for data collection and extensive review of all historical data available and would require access to extensive physical and monetary resources as well as appropriately experienced staff, is appropriate within the realm of academia.  However, in the context of the FCA, Eggen appropriately points out the impracticality of that approach.

 

147.             At no time throughout the extensive evidence received was there evidence presented of an actual, past or contemporaneous, project on or proposed for Sugar Creek that the Department failed to consider in its review.

 

148.          With respect to potential future projects, it is accurate that Lambermont sought, and was denied, a logjam exemption for the removal of a logjam located nearby and the potential exists that a permit for the logjam removal could be sought.  It is not clear that the Department critically considered the logjam issue with respect to future projects and cumulative effects. However, there was no evidence presented to substantiate any belief that the Department’s determination with respect to Certificate FW-23862 would have been altered. 

 

149.          There is also no evidence to support a conclusion that the Department’s analysis and consideration of the sites, projects and activities it identified as occurring on Sugar Creek was incomplete or inappropriate.

 

150.          The burden of proof is upon Hobson to prove by a preponderance of the evidence that the cumulative effects of FW-23862 are unreasonable.  Hobson has failed in this endeavor.  

 

151.          No evidence exists within the record to establish that direct unreasonable detrimental effects upon fish, wildlife and botanical resources will result from the approval of Certificate FW-23862. 

 

152.          At no time did Hobson’s experts offer an opinion that the cumulative effects of FW-23862, in conjunction with other projects past, present or future, were unreasonable.