[CITE: Smith v. Twin Lakes Reg. Sewer Dist. & DNR, 12 CADDNAR 269 (2010)]
[VOLUME 12, PAGE 269]
Cause #: 10-172W
Caption: Smith v. Twin Lakes Reg. Sewer Dist. & DNR
Administrative Law Judge: Lucas
Date: September 30, 2010
FINAL ORDER DENYING REQUEST FOR RELIEF
On September 25, 2010, Woodrow E. Smith (“Smith”) caused correspondence to be filed with the Division of Hearings of the Natural Resources Commission (the “Commission”). In an “Entry Regarding Correspondence from Woodrow Smith” made on September 27, the Commission’s administrative law judge determined his correspondence had not shown a basis for obtaining administrative review of the Department of Natural Resources (“DNR”) licensure action with respect to Application #FW-25771. Smith was provided until October 15, 2010 to file a written request for a reconsideration of the determination that stated facts demonstrating he qualified for review of an order described in IC 4-21.5-3-4, IC 4-21.5-3-5, or IC 4-21.5-3-6. Otherwise, a final order would be issued stating that Smith’s request to relief (if that is what his September 25 correspondence was intended to be) was denied.
On September 29, 2010, Smith filed correspondence in response to the “Entry Regarding Correspondence from Woodrow Smith” which stated:
I didn’t ask for a bunch of legal talk. I ask only one simple question. Prove that we are contaminating the waterway. Is that to [sic.] much to ask?? Every time environment is involved you people think you can do any thing [sic.] you want, but no one seems to care if it can be proven.
FW-25771 approved a construction project within the floodway of the Tippecanoe River, White County, which would include:
A force main, varying in size from 1.25” to 6” diameter HDPE…to provide sanitary service. The overall project includes approximately 13,700’ linear feet of sewer piping in the floodway. There are 3 force main river crossings beneath the Tippecanoe River. The line will be placed by the directional bore method beneath the streambed and by the open cut method beneath the banks. It will have a minimum 5’ of cover beneath the stream bed and the banks….
The law that governs floodway construction is IC 14-28-1 (sometimes referred to as the “Flood Control Act”) and rules adopted by the Commission at 312 IAC 10 to assist with implementation of the Flood Control Act. Generally, a permit application satisfies the Flood Control Act if the applicant demonstrates the construction 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.
(3) Result in unreasonable detrimental effects to fish, wildlife, or botanical resources.
IC 14-28-1-22(e). Nothing in this law requires a showing that Woodrow Smith or anyone else did or did not contaminate a waterway. FW-25771 is an approval pursuant to the standards of the Flood Control Act for a construction project—nothing more and nothing less.
Reading between the lines, Smith appears to oppose the initiatives of the Twin Lakes Regional Sewer District or perhaps even its existence. The Commission has jurisdiction to provide administrative review of a permitting action by the DNR under the Flood Control Act because the Commission is the “ultimate authority” for DNR permitting actions under IC 4-21.5. IC 14-10-2-3. The Commission does not have jurisdiction over whether to form a regional sewer district or whether a sewer district is conducting its activities according to law.
The Indiana Department of Environmental Management (“IDEM”) is the regulatory authority for the programmatic activities of regional sewer districts. The Office of Environmental Adjudication (OEA”) ordinarily has jurisdiction over decisions of the IDEM Commissioner. IC 13-26-2-11 states, however, that an order for the establishment of a sewer district is subject to direct judicial review to a civil court. In Re: Objection to Final Order of Commissioner of Indiana Department of Environmental management, Mexico Community Regional Sewer District, Miami County, Indiana, Cause No. 04-W-J-3365, 2004 OEA 45, 47. In other contexts, OEA may provide administrative review of programmatic activities of a regional sewer district. Illustrative is In the Matter of: Objections to Issuance of 327 Article Construction Permit Application Plans and Specifications for Wastewater Treatment Plant and Sanitary Sewer System, Permit Approval No. 17871, Permit Approval No. 17872R, Twin Lakes Regional Sewer District, Monticello, Carroll and White Counties, Indiana, Cause Nos. 06-S-J-3702 and 06-S-J-3762, 2007 OEA 53. Stated in a way that avoids “a bunch of legal talk”, Smith appears to be barking up the wrong tree.
A final order is issued to deny administrative review to Woodrow E. Smith. A person who wishes to seek judicial review of this order must file a petition for judicial review in an appropriate court within 30 days of this order and must otherwise comply with IC 4-21.5-5. Service of a petition for judicial review is also governed by 312 IAC 3-1-18.