[CITE: Clem, et al., v. Ruble and DNR, 12
CADDNAR 209 (2010)]
[VOLUME 12, PAGE 209]
IN THE MATTER OF:
Cause #: 08-098W
Caption: Clem, et
al., v. Ruble and DNR
Administrative Law
Judge: Jensen
Attorneys: Brugh (Clem/Landis); Hillis (Cass
Co. Drainage Brd); Hischauer
(Ruble); Wyndham (DNR)
Date: April 1, 2010
FINAL ORDER
[See Editor’s note at end of this document regarding change in original decision format.]
74. Permit FW-24725 is revoked and remanded to the Department with respect to its authorization for Ruble to construct a spillway and pond but is affirmed in all other respects.
75. The sole purpose of the remand is to allow Ruble, at his discretion, to pursue his application for FW-24725 with respect to the construction of a spillway and pond. If Ruble chooses to pursue this aspect of his application, the Department shall fully evaluate the proposed spillway and pond in accordance with Indiana Code §§ 14-28-1-22(e)(1-2). The evaluation of FW-24725 may require the submission of additional information by Ruble.
76. The evidence established that Ruble’s construction of the spillway and pond was substantially complete at the time of the administrative hearing. To the extent that construction is incomplete, Ruble is hereby ordered to cease all additional construction associated with the spillway and pond. Ruble is further ordered to maintain the spillway in such a manner as to allow the maximum flow of water through the spillway until such time as the Department has completed its evaluation on remand.
77. If Ruble chooses to pursue his application for FW-24725 with respect to the construction of the spillway and pond and ultimately the Department’s evaluation results in a denial of that application, Ruble shall be obligated to remove the spillway, or any portion of the spillway that has already been constructed, within thirty (30) days of the Department’s determination. If Ruble chooses not to pursue his application for FW-24725 with respect to the spillway construction, he shall remove the spillway, or any portion of the spillway that has already been constructed, within thirty (30) days of the final order in this proceeding
78. This order is entered without prejudice to any party’s right to seek administrative review under Indiana Code §§ 4-21.5-3 of the Department’s future approval or denial of Ruble’s permit application as it relates to the construction of the spillway and pond following remand.
79. The administrative law judge retains jurisdiction under 312 IAC 3-1-19 with respect to the maintenance of the spillway pending the Department’s additional review of Permit FW-24725 on remand.
FINDINGS OF FACT AND
CONCLUSIONS OF LAW
PROCEDURAL BACKGROUND
1. The present administrative proceeding was commenced by the filing of correspondence by Claimant, Gary Landis (“Landis”), on May 17, 2008, by Claimants, Edward Clem and Rose Clem (collectively “the Clems”), on May 20, 2008 and by Claimant, Cass County Drainage Board (“CCDB”), on May 27, 2008, each seeking administrative review of the Department of Natural Resources’ (“Department”) approval of an application submitted by Carl Ruble (“Ruble”) for authorization to conduct excavation and construction activities within the floodway of the Wabash River in Logansport, Indiana.
2. Ruble’s permit application was submitted to the Department under Indiana Code §§ 14-28, et seq. commonly referred to as the Flood Control Act (“FCA”), and 312 IAC 10, et seq. The permit application and permit issued to Ruble are designated as FW-24725.
3. In their correspondence, the Clems allege that Ruble failed to comply with the notice requirements associated with his application for Permit FW-24725 in that the notice misrepresented the work to be undertaken and was not served upon all adjacent landowners. The Clems’ correspondence also alleges that the project actually planned by Ruble will involve the reconstruction of a wall that will cause water to “back up rapidly” onto their property and will involve the construction of a pond very close to the property line between them and Ruble. The Clems state that these circumstances pose unreasonable hazards to life and property from flooding and from the potential for accidents associated with the pond. The Clems further allege that a portion of Ruble’s planned project will occur on real property owned by them.
4. Landis alleged in his request for administrative review that Ruble’s project will allow Ruble to control the flow of surface water during rain events, which could cause flooding of his property, including his house and garage.
5. Similar to the flooding concerns of the Clems and Landis, the CCDB contends that Ruble’s project will “back water up on the neighbors’ field across and the neighbor next door. Also, this water will be backed up within 25’ of the county road which will be a potential problem with infrastructure.”
[VOLUME 12, PAGE 210]
6. Landis’ correspondence initiated an administrative proceeding captioned Gary Landis v. Carl Ruble and the Department of Natural Resource under Administrative Cause Number 08-099W. The CCDB’s correspondence was initially filed under the caption Cass County Drainage Board v. Carl Ruble and the Department of Natural Resources as Administrative Cause Number 08-102W. The Clems’ correspondence was filed as Edward Clem and Rose Clem v. Carl Ruble and the Department of Natural Resources as Administrative Cause Number 08-098W.
7. Prehearing conferences in the three separate administrative causes were conducted concurrently on June 17, 2008, at which time the three proceedings were consolidated and captioned under Administrative Cause Number 08-098W. The administrative proceedings initiated as Administrative Causes 08-099W and 08-102W were administratively closed.
8. Counsel, Jim J. Brugh, represented Claimants, Landis and the Clems, and Claimant, CCDB, was represented by counsel, John R. Hillis. Respondent, Carl Ruble, was represented by counsel, Jay T. Hirschauer, and counsel, Eric L. Wyndham, represented Respondent, Department.
9. On November 10, 2008, Claimants, Landis and the Clems, filed their Motion for Stay, which was joined by the CCDB on November 24, 2008.
10. A stay hearing was conducted on January 5, 2009 and an Order on Claimants’ Motions for Stay denying the Claimants’ motions was issued on February 4, 2009.
11. Landis and the Clems objected to the incorporation of evidence presented during the stay hearing into the hearing on the merits.
12. The parties’ witness and exhibit lists were timely filed and exchanged and a site view by the administrative law judge was conducted on September 11, 2009. A final status conference was conducted on August 19, 2009 at which time an order limiting evidence to those issues raised in this proceeding was entered.
13. The evidence to be presented by the parties at the administrative hearing was limited as follows:
…evidence must relate to at least one of the following:
1. IC 14-28-1-20(2)(A), which involves adverse affects to the efficiency of or the undue restriction of capacity of the Wabash River Floodway,
2. IC 14-28-1-20(2)(A)(i), which involves the nature, design, method of construction, state of maintenance, or physical condition constituting an unreasonable hazard to the safety of life or property,
3. The accuracy of Mr. Ruble’s permit application drawings, or
4. Matters relating to the ownership of property involved within Mr. Ruble’s project.
Report of Telephone Status Conference, August 20, 2009.
14. On motion of the Department and over the objection of Claimants, Landis and the Clems, the parties’ evidentiary presentations were further limited to disallow evidence relating to “events, actions and occurrences associated with this proceeding that occurred after the permit’s issuance…” See Order on Respondent, Department of Natural Resources’, Motion in Limine for Purposes of Administrative Hearing and Order Denying Claimants’, the Clems’ and Landis’, Request to Set Aside Order on Motion in Limine and Indiana DNR v. United Refuse Company, Inc., 615 N.E.2d 100 (1993) and Pendleton v. DNR and Campbell, 6 CADDNAR 145, (1993).
15. An administrative hearing was conducted over the course of two days commencing on September 15, 2009.
16. Respondents, Ruble and the Department, as well as Claimants, Landis and the Clems, availed themselves of the opportunity to file post hearing briefs on November 16, 2009 and November 12, 2009, respectively.
17. The instant proceeding is governed procedurally by the Administrative Orders and Procedures Act (AOPA) found at Indiana Code §§ 4-21.5-3 et seq. and administrative rules adopted by the Natural Resource Commission (Commission) to assist in the implementation of AOPA, which are found at 312 IAC 3 et seq.
18. The Commission is the ultimate authority with respect to administrative proceedings involving the FCA. 312 IAC 3-1-2.
19. The Commission possesses jurisdiction over the subject matter and the persons of the parties.
FINDINGS OF FACT
20. Ruble owns a parcel of property located at the southwest corner of the intersection of Georgetown Road and West Georgetown Road, in Logansport, Indiana. Stipulated Exhibit III, pg. 3 & Stipulated Exhibit II, map 1. Ruble’s easterly property boundary abuts the property of the Clems. Stipulated Exhibit III, pg. 1. Ruble’s southern boundary lies adjacent to the Wabash River and northern boundary lies adjacent to West Georgetown Road. Id. Immediately across West Georgetown Road from Ruble’s property lies a field owned by Landis. Id. Landis’ garage and home are located immediately east of Landis’ field and across West Georgetown Road to the north from the Clems. Testimony of Landis. A culvert under West Georgetown Road provides for surface water flow from Landis’ field to a ditch that leads across Ruble’s and the Clems’ property to the Wabash River. Testimony of Landis, Claimant’s Exhibits B & C.
21. The vast
majority of Ruble’s project site is situated within the floodway of the Wabash
River. A small portion of Ruble’s project site located in the northwest corner
of the property nearest the intersection of
[VOLUME 12, PAGE 211]
22. Crooked
Creek and its floodway are located to the north and northwest of the Wabash
River and its floodway. The Crooked
Creek floodway runs generally parallel with the
23. A stone
wall presently exists on Ruble’s property south of the culvert on
24. Nearly once annually a flood event occurs in the vicinity of Ruble’s project site that causes Crooked Creek to overtop its banks sending floodwaters across Landis’ field in the direction of Ruble’s property. Testimony of Landis, Testimony of Rose Clem, Testimony of Dave Arnold. The surface water exits Landis’ field through the culvert on West Georgetown Road and continues flowing through the gap in the stone wall on Ruble’s property to the ditch that carries the flow across Ruble’s and the Clems’ properties toward the Wabash River. Testimony of Landis, Testimony of Rose Clem, Testimony of Ruble, Claimants Exhibit B, Claimants Exhibit C.
25. With the
gap that presently exists in the stone wall the waters still reach four to five
feet in depth near the culvert and often floods
26. According to Landis, who has lived in the area since 1965, the gap in the stone wall was created when a previous owner of the Ruble property demolished that section of the stone wall 40 years ago to alleviate flooding problems. Testimony of Landis.
27. With the assistance[1] of Senior Environmental Manager, Larissa Mueller (“Mueller”) [2], Ruble prepared and submitted his application for Permit FW-24725 on February 21, 2008. Testimony of Mueller, Stipulated Exhibit I, pg. 40.
28. Ruble’s application offers the following project description:
1) Excavate pond (silt from existing pond); slope & put stone around the banks; replace overflow pipe or spillway
2) Clean ditch out to river – 12’ wide from behind house to river
3) Place bridge over drain
4) Rebuild wall around overflow pipe
5) Place silt & fill from pond & ditch cleaning/widening around house
6) Remove two trees.
Stipulated Exhibit I, pg. 40.
29. Ruble’s
permit application indicates that he plans to construct the pond on his
property such that water flowing from Landis’ field through the culvert on
30. The notice
issued by Ruble to Landis and the Clems advises that his proposed project
involves “construction in a floodway, clean out ditch fix foundation on my
property.” The notice was also sent to the
31. There are
certain photographs that tend to depict residences and properties in addition
to the Clems, Landis and the
32. FW-24725
authorizes Ruble to place the fill from the excavation of the pond and the cleaning
of the ditch in two locations. One fill
location is a 60 foot by 240 foot area located on the northwest corner of
Ruble’s property closest to the intersection of
33. The record
is void of any evidence that the placement of fill in the two locations
identified on Ruble’s permit application present any obstruction to the
floodway of the
34. The ditch to be cleaned and widened runs along the property boundary between Ruble and the Clems with some portions of the ditch being owned by Ruble and other portions being owned by the Clems. Testimony of Rose Clem, Testimony of Ruble.
[VOLUME 12, PAGE 212]
35. Ruble testified that Edward Clem authorized him to clean out the Clems’ portion of the ditch on a past occasion but acknowledged that he did not have the permission of Edward Clem or Rose Clem to proceed with the ditch cleaning proposed within Permit FW-24725.
36. Rose Clem testified that neither she nor her husband had authorized Ruble to include their property in his project authorized by Permit FW-24725.
37. Ruble’s proposed project includes what is identified as a “mill pipe” that allows water from the pond to flow to the mill wheel.[3] It is this pipe that was characterized by Ruble as the overflow pipe. Stipulated Exhibit I, pg. 53, Testimony of Ruble.
38. The most significant controversy in the instant proceeding involves Ruble’s plan to construct a spillway in the gap of the existing stone wall, which will allow for the impounding of water in the pond.
39. The
spillway and the pond construction will occur in the floodway of the
40. An
excavation below the existing grade of the land, such as would be involved in
the creation of Ruble’s pond, would not, in and of itself, present an
obstruction to the floodway of the
41. However, the construction of a spillway for the purpose of impounding or controlling the flow of water may, depending upon its design, constitute an obstruction.
42. Department’s Division of Water Assistant Director, James Hebenstreit (“Hebenstreit”), Mueller, Darren Miller (“Miller”), Department’s Division of Water Hydraulic Engineer, and Jennifer Ware (“Ware”), Department’s Division of Water Environmental Scientist, were each involved in some way with reviewing Ruble’s permit application. Each acknowledged that the spillway design is not detailed within Ruble’s application or supplemental information. Testimony of Hebenstreit, Testimony of Mueller, Testimony of Ware.
43. Hebenstreit testified that a spillway could incorporate a control structure but he observed that Ruble’s application provided no details from which to determine whether it was Ruble’s intent to construct such a control structure. Hebenstreit further noted that if it was Ruble’s intent to incorporate a control structure into the spillway, it was not clear from the application how Ruble planned to release water from the spillway.
44. Mueller acknowledged in her testimony that there are different types of spillways and that Permit FW-24725 did not specify the type of spillway Ruble was authorized to construct. She noted however that Permit FW-24725 did not specifically permit the use of doors or gates in the construction of the spillway.
45. Mueller testified to her understanding that Ruble’s plan to rebuild the existing stone wall involved repairing the top corner of one side of the wall, Exhibit N, however, she acknowledged that Ruble’s drawing on the photographs did indicate that a spillway, several feet in height, was to be constructed in the entire gap in the wall. Exhibit R-1.
46. From the testimony of Ware and Mueller, particularly, it was not evident that they clearly understood Ruble’s intentions with respect to the construction of the spillway.
47. Ruble testified that the spillway to be constructed was consistent with the drawing provided with his permit application. Stipulated Exhibit I, pg. 51, Exhibit R-1. Ruble’s drawing is imposed over a photograph that provides no scale and no dimensions for the spillway. Testimony of Darren Miller, Testimony of Hebenstreit, Testimony of Mueller, Testimony of Ware, Stipulated Exhibit I, pg. 51, Exhibit R-1. The drawing shows a line across the gap in the existing stone wall that very roughly depicts the planned height of the spillway and reveals Ruble’s intent for the spillway to span across the entire gap in the existing stone wall. Ruble’s testimony, Stipulated Exhibit I, pg. 51, Exhibit R-1. The exact height and width of the spillway cannot be determined but the drawing on the photograph depicts that the spillway is several feet high being only approximately two or three feet shorter than the existing portions of the stone wall. Stipulate Exhibit I, pg. 51, Exhibit R-1.
48. Ruble’s stated purpose for building the spillway and the pond is to “control the water… it will put some backpressure on that water coming through there…” Testimony of Ruble.
49. Any structure placed in a floodway for the purpose of creating backpressure on floodwaters and slowing the force of floodwater offers the potential to create an up gradient surcharge of water. The degree of the surcharge will vary based upon the characteristics of the structure and the floodwaters experienced.
50. The up gradient surcharge created by the spillway was not evaluated by Ruble or the Department.
51. Ruble acknowledged that the spillway will cause flow to decrease in speed thereby backing up water into the pond but insists that the floodwaters would not be backed up onto Landis’ or the Clems’ property or onto West Georgetown Road.
52. Ruble’s conclusion that water will not back up beyond the pond constructed on his property is not supported by professional evaluation and is unconvincing.
[VOLUME 12, PAGE 213]
53. Ruble explained that during a flood event the water contained within the pond will serve essentially as a buffer to prevent the “force of the water from hitting my home.” Ruble clarified that once the flood waters rise to a certain point it will flow over the spillway and “eventually” flow to the river. Testimony of Ruble.
54. From the
plans provided by Ruble and reviewed by the Department it is impossible to
determine how high the flood waters will have to rise and thus how far the
floodwaters will be backed up before they will flow over Ruble’s proposed spillway. Therefore, it is also impossible to determine
whether the floodwaters entering the floodway of the
CONCLUSIONS OF LAW
55. The FCA
required Ruble to obtain Permit FW-24725 before commencing work on his project,
which involved the construction of a structure, the deposition of fill material
and excavation associated with the construction of a pond and widening and
cleaning of a ditch, most of which was to occur within the floodway of the
56. Ruble was required to provide notice of his application for Permit FW-24725 to at least one owner of each “property reasonably known to be adjacent to the affected real property.” Indiana Code § 14-11-4-5(1). A property adjacent to Ruble’s project site would include those properties owned by another person that are both “located within one-fourth (1/4) mile of the site where the licensed activity would take place” and “has a border or point in common with the exterior boundary of the property where the licensed activity would take place.” 312 IAC 2-3-2.
57. The evidence indicates that properties owned by the Clems, Landis and the Indiana Laborers Training Center share a border with Ruble’s project site. Other properties exist within the proximity of the project site authorized by FW-24725 but there was no evidence presented that proves by a preponderance of the evidence that any of those properties share a common border or point with the exterior boundary and are situated within one quarter (1/4) mile of the project site.
58. While Ruble’s notice that was provided to the Clems and Landis did not describe the project with the degree of specificity that was provided within his application submitted to the Department, the notice was required to and did identify the applicant’s name and address, the applicable statute and rule, the subject property and offered “an explanation of options available to the person served.” Indiana Code § 14-11-4-7, 312 IAC 2-3-3(f), Stipulated Exhibit I, pgs. 34 & 35.
59. As to
content, Ruble’s notice served upon Landis, the Clems and the
60. Ruble’s application for Permit FW-24725 was required to include “plans and specifications for the structure, obstruction, deposit, or excavation.” Indiana Code § 14-28-1-22(d).
61. As applicable to the instant proceeding, the Department may only issue the permit if:
(e) … in the opinion of the director the applicant has clearly proven that the structure, obstruction, deposit or excavation will not do any of the following:
(1) Adversely affect the efficiency of or unduly restrict the capacity of the floodway.
(2) Constitute an unreasonable hazard to the safety of life or property.
…
Indiana Code § 14-28-1-22(e).
62. Indiana Code § 14-28-1-22(d) does not elaborate that the plans and specifications required to be submitted with a permit application must be developed by an engineer or must offer a scale. However, by virtue of Indiana Code § 14-28-1-22(e), the plans and specifications must be sufficient to prove to the Department director that the permit otherwise complies with legal requirements.
63. As applicable to this proceeding to “‘adversely affect the efficiency of, or unduly restrict the capacity of, the floodway’ means an increase in the elevation of the regulatory flood of at least fifteen-hundredths (0.15) of a foot as determined by comparing the regulatory flood elevation under the project condition to that under the base condition.” 312 IAC 10-2-3.
64. An “‘unreasonable hazard to the safety of life or property’ means a condition that is likely to: (1) be cause by the design or construction of a project; and (2) result during a regulatory flood in either: (A) the loss of human life; or (B) damage to public or private property to which the license applicant has neither ownership nor a flood easement.” 312 IAC 10-2-40.
65. The purpose
for the permitting requirements set forth at Indiana Code § 14-28-1-22 are
explained at Indiana Code § 14-28-1-1, which states in part that “(1) …the
damage resulting from floods is a matter of deep concern to
66. Department
witnesses testified that the Department’s jurisdiction with respect to the FCA
is limited to the floodway and that overland surface water flowing across
Landis’ property, which is outside the floodway, was not considered. The Department’s witnesses further testified
that floodwaters traveling from the floodway of Crooked Creek were not
considered because the only floodway at issue with FW-24725 was the floodway of
the
[VOLUME 12, PAGE 214]
67. The Department’s witnesses offered their perspective that the Department does not possess jurisdiction to consider the overland flow of water outside the floodway and further that because the drainage area related to Ruble’s proposed pond is less than 1 square mile it too was outside the Department’s regulatory responsibility. For these reasons the Department did not consider it necessary to obtain detailed plans and specifications for Ruble’s proposed spillway. Testimony of Miller, Testimony of Ware, Testimony of Mueller and Testimony of Hebenstreit. The Department was in error in this belief as well.
68. However,
Ruble’s pond and spillway are situated inside the floodway of the
69.
“When a
permit application is objected to, the ALJ hears the case de novo. That is, he
returns to a point prior to the issuance of the permit, examines the
evidence/applicable law, and makes an independent determination as to whether
the permittee qualifies for issuance of the permit.” Pendleton
v. DNR and Campbell, 6 CADDNAR
145, (1993).
70. The evidence establishes that the Department’s review of all aspects of Permit FW-24725, except the review of the spillway and pond, was based upon sufficient information to conclude that Indiana Code § 14-28-1-22(e)(1 & 2) has been satisfied.
71. With respect to the spillway and pond, the Claimants have failed to prove that an increase in the elevation of a regulatory flood of at least fifteen-hundredths of a foot or the loss of human life or damage to public or private property will occur during a regulatory flood.
72. However, the Claimants did prove by a preponderance of the evidence that Ruble’s application, plans and specifications for Permit FW-24725 did not provide sufficient detail with respect to his proposed spillway and pond for the Department to conclude that a fifteen-hundredths of a foot elevation increase will not result or that the loss of human life or damage to public or private property will not occur during a regulatory flood. At the time of their review of the application for FW-24725, the Department’s staff did not know the proposed height of the spillway, the proposed width of the spillway or whether the proposed spillway was to also serve as a control structure. Furthermore, if the spillway was to incorporate a control structure, Ruble’s application fails to establish how the control structure component would operate.
73. Because the design specifications associated with the spillway were not and are still not known, any evaluation of the spillway structure would be inadequate to “clearly prove” that the structure will not by its design and construction result in damage to property or loss of life during a regulatory flood or cause a negative impact upon the efficiency or capacity of the floodway of the Wabash River as required by Indiana Code 14-28-1-22(e).
[EDITOR’S NOTE:
The original format of the Administrative
Law Judge’s Findings of Fact, Conclusions of Law, and Final Order has been
modified to correspond with CADDNAR format.
Findings 74 through 79 have been relocated to the “Final Order” section
at the beginning of this document.]
[1] Mueller’s assistance to Ruble in preparing his permit
application resulted from the Department’s Division of Water’s public
assistance program that is provided to the general public on a regular basis. Testimony of Mueller.
[2] Larissa Mueller’s name appears as Larissa Heller on Department documents related to Permit FW-24725.
[3] Ruble’s home is the old Cicott Mill.