CADDNAR
[CITE: Hoosier Env. Council, et al. v. INDOT & DNR, 13 CADDNAR 69 (2012)]
[VOLUME 13, PAGE 69]
Cause: 11-067W
Caption: Hoosier Env. Council, et al. v. INDOT
Administrative Law Judge: Jensen
Attorneys: Van Gilder; pro se (Boyd); Junk (INDOT); Wyndham (DNR)
Date: October 16, 2012
[NOTE 1: Subsequent to issuance of the following partial summary judgment order, this case was voluntarily dismissed on the motion of the Claimants in an order issued december 11, 2012.]
[NOTE 2: SEE Hoosier Env. Council, et al. v. INDOT (Dismissal), 13 CADDNAR 77 (2012) FOR THE ORDERS GRANTING DISMISSAL AND TO INDEX THE SUMMARY JUDGMENT ORDER IN CADDNAR.]
ORDER ON INDIANA DEPARTMENT OF TRANSPORTATION’S MOTION FOR SUMMARY JUDGMENT
PROCEDURAL BACKGROUND
1. The instant proceeding relates to the Department of Natural Resources’ (“DNR”) issuance of a Certificate of Approval for Construction in a Floodway identified as FW-25881 (hereinafter referred to as “FW-25881”) to the Indiana Department of Transportation (“INDOT”) on March 28, 2011.
2. The Hoosier Environmental Council, Jim and Jane Gillooly, Nancy Grannan and Robert Wildman, (hereinafter referred to collectively as “the HEC Claimants”) by counsel, David C. VanGilder, filed their “Petition for Administrative Review of Approval Number FW-25881” on April 15, 2011, which initiated this instant proceeding.
3. William A. Boyd, on his own behalf, also filed correspondence on April 15, 2011 seeking administrative review of the approval of FW-25881. This correspondence initiated Boyd v. Indiana Department of Transportation and Department of Natural Resources, Administrative Cause No. 11-066W.
4. A joint prehearing conference was scheduled and conducted with respect to the two related administrative proceedings. With the agreement of all parties, the two proceedings were consolidated and are both under consideration here. See Report of Prehearing Conference, May 19, 2011.
5. During the prehearing conference the issues raised by the Claimants were clarified and outlined to include the following:
a. Adverse affects upon the efficiency or undue restrictions upon the capacity of the floodway;
b. Unreasonable detrimental impacts upon fish, wildlife and botanical resources;
c. Unreasonable harm to life, safety and property;
d. Cumulative effects of the project with respect to the safety of life or property and fish, wildlife and botanical resources;
e. Violations of the Navigable Waterways Act;
f. Absence of necessary flood easements, and;
g. Approval of “staged” or “design-build” construction plans.
See Report of Prehearing Conference, May 19, 2011.
Only these issues are disputed for purposes of administrative review.
6. Procedurally, the Administrative Orders and Procedures Act codified at I.C. 4-21.5-3, along with related administrative rules adopted by the Commission at 312 IAC 3-1 govern.
7. To the extent the Indiana Rules of Trial Procedure are not inconsistent with the Administrative Orders and Procedures Act, the Trial Rules also apply. 312 IAC 3-1-10.
8. Substantively, this proceeding involves I.C. 14-28, commonly referred to as the Flood Control Act, or FCA, and administrative rules adopted at 312 IAC 10, which are administered by the DNR.
9. The Natural Resources Commission (“Commission”) is the “ultimate authority” with respect to matters under the control and administration of the DNR. I.C. 4-21.5-1-15; 312 IAC 3-1-2.
10. The Commission is possessed of jurisdiction over the parties and the subject matter of the instant proceeding.
11. After ample opportunity for the completion of discovery and numerous status conferences a schedule was established for the filing of motions for summary judgment. The INDOT timely filed its motion on July 5, 2012. Claimants’ briefs in response were timely filed on August 30, 2012. The DNR and the INDOT filed reply briefs on September 13, 2012.
SUMMARY JUDGMENT STANDARD
12. Under AOPA, a party may move for summary judgment through a motion supported by affidavits and other permissible evidence. I.C. 4-21.5-3-23(a)[1].
13. “If a motion for summary judgment is made and supported under this section, an adverse party may not rely upon the mere allegations or denials made in the adverse party’s pleadings as a response to the motion. The adverse party shall respond to the motion with affidavits or other evidence permitted under this section and set forth specific facts showing that there is a genuine issue in dispute.” I.C. 4-21.5-3-23(f).
14. “The judgment sought shall be rendered immediately if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits and testimony, if any, show that a genuine issue as to any material fact does not exist and that the moving party is entitled to a judgment as a matter of law. A summary judgment may be rendered upon fewer than all the issues or claims...” I.C. 4-21.5-3-23(b).
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15. “‘A fact is ‘material’ for summary judgment purposes if it helps to prove or disprove an essential element of the plaintiff’s cause of action. A factual issue is ‘genuine’ for purposes of summary judgment if the trier of fact is required to resolve an opposing party’s different versions of the underlying facts.” Rosheck v. Mader Dental, 12 CADDNAR 251 (2010), internal citations omitted.
16. “The purpose of summary judgment is to terminate litigation about which there can be no factual dispute and which may be determined as a matter of law.” Wells v. Hickman, 657 N.E.2d 172, 175, (Ind. App. 1995).
17. “A party or parties moving for summary judgment have the burden of proof with respect to summary judgment, regardless of whether it or they would have the burden in an evidentiary hearing.” Save Our Rivers, et al. v. Guenther, Ford & DNR, 10 CADDNAR 213 (2006) citing Regina Bieda v. B & R Development and DNR, 9 CADDNAR 1 (2001).
18. “Any doubt as to the existence of an issue of material fact, or an inference to be drawn from the facts, must be resolved in favor of the nonmoving party.” Musgrave v. Squaw Creek Coal Co. and DNR, 12 CADDNAR 192, 197, (2009), citing Travelers Indem. Co. of America v. Jarrells, 906 N.E.2d 912, 915 (Ind. Ct. App. 2009).
19. “When any party has moved for summary judgment, the court may grant summary judgment for any other party upon the issues raised by the motion although no motion for summary judgment is filed by such party.” Indiana Rules of Trial Procedure, Trial Rule 56(B), Wheeler, et al. v. Peabody, DNR and Town of Zionsville, 9 CADDNAR 193 (2004).
20. “Summary judgment upon fewer than all the issues involved in a proceeding or with respect to fewer than all the claims or parties is not a final order. The administrative law judge shall designate the issues or claims upon which the judge finds no genuine issue as to any material facts.” I.C. 4-21.5-3-23(b). In this instance the administrative law judge “shall if practicable ascertain: (1) what material facts exist without substantial controversy; and (2) what material fact are actually and in good faith controverted. … Upon the hearing of the action, the facts specified are established in the judge’s order under this subsection. I.C. 4-21.5-3-23(c).
21. The HEC Claimants contend that because the DNR did not join in INDOT’s motion for summary judgment that the proceeding “remains viable and ripe for hearing” as to DNR regardless of the decision rendered with respect to INDOT’s motion for summary judgment. The logical outcome of what the HEC Claimants’ propose could easily be the duplicitous litigation of identical issues against the INDOT through summary judgment and against the DNR through an administrative hearing, which result is judicially inefficient and has the effect of providing the Claimants two bites at the same apple. The Commission has previously addressed this situation and concluded that similarly situated parties will be the benefactor of dispositive motions and responses filed by the other parties so similarly situated. Wheeler at 194, see also Indiana Rules of Trial Procedure, Trial Rule 56(B), McCutchan Estates Corp. v. Evansville-Vanderburgh County Airport Authority District, 580 N.E.2d 339, (Ind. App. 1991) and Colen v. Pride Vending Service, 654 N.E.2d 1159, (Ind. App. 1995). With respect to the instant proceeding, the determination of the INDOT’s motion for summary judgment will control equally to all of the Claimants’ allegations against the DNR.
DISCUSSION
22. “As the DNR’s ‘ultimate authority’, the Commission must properly conduct this proceeding de novo. Rather than deferring to a DNR permitting determination, de novo review requires the Commission to consider and apply proper weight to the evidence.” Daniel v. Johnston & Fultz Excavating (Vinyl Seawall), 12 CADDNAR 317, 318, (2011), internal citations omitted.
23. In its application for FW-25881, the INDOT proposed various activities including, the placement of two piers in the river channel, the construction of relief box culverts, the placement of fill and the construction of a temporary causeway for use during the construction of three new bridges “over the East Fork White River to carry the new I-69 crossing over the river”. INDOT Exhibit 1C.
24. The construction will occur “[a]pproximately 8100’ upstream of the State Route 57 stream crossing near Petersburg, Jefferson Township, Pike County” within a floodway delineated by the Federal Emergency Management Agency (“FEMA”). INDOT Exhibit 1B.
25. A floodplain (floodway and floodway fringe) delineation prepared by FEMA is applicable to 312 IAC 10. 312 IAC 10-3-2.
26. “…a license from the department is required to erect, make, use, maintain, suffer, or permit a structure, obstruction, deposit, or excavation in or on a floodway.” 312 IAC 10-4-1(a). As relevant to the instant proceeding, I.C. 14-28-1-22 specifies as follows:
…
(c) A person who
desires to:
(1) erect, make, use, or
maintain a structure, an obstruction, a deposit, or an excavation; or
(2) suffer or permit a
structure, an obstruction, a deposit, or an excavation to be erected, made,
used, or maintained; in or on a floodway must file with the director a verified
written application for a permit accompanied by a nonrefundable fee of two
hundred dollars ($200).
(d) The application for a permit must set forth the
material facts together with plans and specifications for the structure,
obstruction, deposit, or excavation.
(e) An applicant must receive a permit from the
director for the work before beginning construction. The director shall issue a
permit only if in the opinion of the director the applicant has clearly proven
that the structure, obstruction, deposit, or excavation will 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.
(3) Result in unreasonably
detrimental effects upon fish, wildlife, or botanical resources.
(f) In deciding whether to issue a permit under this
section, the director shall consider the cumulative effects of the structure,
obstruction, deposit, or excavation. The director may incorporate in and make a
part of an order of authorization conditions and restrictions that the director
considers necessary for the purposes of this chapter.
27. In its enactment of the FCA, the Indiana General Assembly also recognized the purpose and utility of a flood easement, which is “an easement on property to be inundated or covered by water.” I.C. 14-28-1-3.
28. For projects including created flood easements the review requirements are as follows:
Sec. 4. If a license application includes the creation of a flood easement, the applicant must demonstrate to the satisfaction of the department the project:
(1) will not constitute an unreasonable hazard to the safety of life or property;
(2) is not unreasonably detrimental to fish, wildlife, or botanical resources; and
(3) is either:
(A) a dam;
(B) a flood control project under IC 14-28-1-29; or
(C) a public works project.
312 IAC 10-4-4.
It is important to note that the requirement to prove that the project will not adversely affect the efficiency or unduly restrict the capacity of a floodway has been removed.
[VOLUME 13, PAGE 71]
29. Consistent with the requirements as expressed in 312 IAC 10-4-4, the Commission has defined the phrase "adversely affect the efficiency of, or unduly restrict the capacity of, the floodway" as:
"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. This definition does not, however, apply to any of the following:
(1) A dam regulated under IC 14-27-7 and IC 14-28-1.
(2) A flood control project authorized under IC 14-28-1-29.
(3) An area for which a flood easement is secured and recorded with the county recorder.
312 IAC 10-2-3, (emphasis added).
30. For purposes of the FCA a “…[the] regulatory flood is equivalent to the base flood or the 100-year frequency flood. 312 IAC 10-2-35, see also Boyd, et al v. DNR and Floyd Commissioners, 8 CADDNAR 5, 6 (1997). Evidence in the record associated with other frequency floods, most notably 500-year frequency floods will not be considered further.
31. FW-25881 was approved by the DNR on March 28, 2011, with the inclusion of 24 special conditions. Id. Of particular relevance to the flood easements at issue herein is Special Condition 21, which reads as follows:
21. Construction of the roadway embankments or placement of any fill shall not be allowed between stations 1101+75 and station 1147+50 as shown on the plans received at the Division of Water on February 28, 2011, until all required flood easements associated with this project are obtained and proof of the secured easements have been submitted to the Division of Water for review and a written release from this specific permit condition is granted by the Department of Natural Resources.
32. The floodway easements, or the equivalent court ordered appropriations, were submitted to the DNR on August 29, 2011[2] and on September 2, 2011 the Department, by its Deputy Director, Ron McAhron, verified that Special Condition 21 “has been satisfied…” INDOT Exhibits 1C, 1E, 1F, 3, 3E, 4.
33. With respect to the flood easements, the Claimants offer two specific grounds of opposition to the DNR’s approval of FW-25881. First, the Claimants maintain that the DNR acted outside its lawful authority when it approved FW-25881with the inclusion of Special Condition 21 allowing the INDOT to provide necessary flood easements at a later date, when in the opinion of the Claimants “[the] plain meaning of the act requires DNR to deny a permit application if flood easements are not in place when the application is made.” Secondly, the Claimants contend that the INDOT has not established that the project authorized by FW-25881 is a “public works project” as required by 312 IAC 10-4-4(3)(c).
34. The term “public works project” as used at 312 IAC 10-4-4(3)(c) is not a defined term within the applicable law. “Words and phrases are to be given their plain and customary meaning unless the intent of the legislature will be defeated by such meanings...” F. D. McCrary Operator, Inc. v. DNR v. DNR, 10 CADDNAR 73, 79 (2005) citing Board of School Trustees v. Indiana Education Employment Relations Board, 497 N.E.2d 1084 (Ind. App. 2 Dist. 1986).
35. A “public works” project is defined as “[c]onstruction projects, such as highways or dams, financed by public funds and constructed by a government for the benefit or use of the general public” The American Heritage Dictionary, Second College Edition, Houghton Mifflin Co., © 1982, 1985, and “[c]onstruction projects, as highways or dams, financed by public funds and constructed by government for the general public.” Webster’s II, New Riverside University Dictionary, The Riverside Publishing Company, © 1984, 1988.
36. The project associated with FW-25881 involves the publicly funded construction of bridges that form a part of the new I-69 interstate, which is clearly a public works project for purposes of 312 IAC 10-4-4(3)(c). INDOT Exhibits 3, 3D & 5C.
37. Undisputed evidence indicates that following the INDOT’s filing of its application the file was placed in abeyance on at least two occasions and revised modeling was requested and received on a minimum of six individual occasions. INDOT Exhibit 3A. Furthermore, the final modeling acceptable to both the DNR and the INDOT reveal increased upstream surface water elevations, referred to hereafter as a “surcharge”, of up to .94 feet, while Claimants modeling, based upon the same conditions and assumptions, indicates the surcharge will be only up to .46 feet. INDOT Exhibit 2, (rfa 6 & 16).
38. Clearly, the land area that will be “inundated or covered with water” and thus the lands for which the INDOT will be required to obtain flood easements is determinable by the extent of the surcharge, which remains in controversy here.
39. This evidence clearly establishes that any requirement for the INDOT to obtain the flood easements before the time of application, or realistically at any time before hydraulic modeling was completed to the satisfaction of the DNR, would have been an exercise in futility. Until the INDOT and the DNR reached consensus through hydraulic modeling as to the land area that would be inundated with water as a consequence of the project for which FW-25881 was sought, it was impossible for the INDOT to identify, with certainty, the flood easements that would eventually be required.
40. Aside from the practical difficulties of the INDOT providing the flood easements at the time of application, the administrative rule in question states only what a permit applicant must demonstrate to the satisfaction of the DNR in order for the DNR to approve an application that includes flood easements. 312 IAC 10-4-4.
41. “The director may incorporate in and make a part of an order of authorization conditions and restrictions that the director considers necessary for the purposes of this chapter.” I.C. 14-28-1-22(f).
42. There is no language of limitation contained within I.C. 14-28-1-22(f) that would serve to prohibit the DNR’s inclusion of special condition 21 as opposed to the DNR obligating the INDOT to provide the flood easements prior to the approval of FW-25881. Conditioning FW-25881 upon the INDOT’s providing the flood easements to the DNR for review and written release before fill may be placed or embankments constructed effectively fulfilled the purposes of I.C. 14-28 to the same extent as would have the DNR’s withholding of the approval of FW-25881 until the flood easements were received from the INDOT. No error is found with respect to the DNR’s conditional approval of FW-25881 in this instance.[3]
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43. In this instance the flood easements, which were not a part of the DNR’s files at the time FW-25881 was approved on March 28, 2011 and which had not been submitted to the DNR before the Claimants’ initiation of this proceeding on April 15, 2011, were submitted to the DNR on August 29, 2011. INDOT Exhibit 4. Following review by the DNR, its Deputy Director, Ron McAhron, confirmed satisfaction with the INDOT’s compliance with special condition 21. INDOT Exhibit 3E.
44. On another note, the Commission has on previous occasions remanded permitting approvals back to the DNR for the correction of even fatal errors. See Wheeler, et al. v. Peabody, DNR and Town of Zionsville, 9 CADDNAR 193 (2004), in which the permit application was remanded to the DNR for the proper fulfillment of public notice requirements. For this reason even if the Commission were to determine that the failure of the INDOT to provide the flood easements before the DNR approved FW-25881 was fatal to the permit, the action consistent with Commission precedent would be to remand the matter to the DNR for correction of the error, which in this instance would be the submission of the flood easements by the INDOT and review of those flood easements by the DNR.
45. Such a remand is clearly unnecessary as the undisputed evidence establishes: (1) that the flood easements have already been submitted to the DNR by the INDOT; (2) the DNR has already reviewed and approved the flood easements; and, (3) the Claimants present no evidence contesting sufficiency of the flood easements with respect to the land areas impacted by the potential .94 foot surcharges identified in INDOT’s hydraulic modeling.
46. The Claimants further maintain that obtaining flood easements from those property owners whose property will be inundated or covered with water “has no bearing on the efficiency and capacity of the floodway…” urging that despite obtaining the flood easements the INDOT remains obligated to prove that the project will not “adversely affect the efficiency of or unduly restrict the capacity of the floodway.”
47. Contrary to the Claimants’ position is 312 IAC 10-2-3(3), which specifies that adverse affects to the efficiency and capacity of a floodway is inapplicable to “an area for which a flood easement is secured and recorded with the county recorder.” Also contrary to the Claimants’ position is the lack of a requirement in 312 IAC 10-4-4 for a permit applicant to offer any demonstrations to the satisfaction of the DNR with respect to adverse affects to the efficiency and capacity of a floodway when flood easements are involved with the application.
48. Application of 312 IAC 10-2-3(3) and 312 IAC 10-4-4 are not, however, inconsistent with or contrary to the requirements of I.C. 14-28-1-22(e)(1). Instead, the noted administrative rules carry out the alternative means of addressing the adverse affects of a project with respect to the efficiency and capacity of a floodway through the statutorily recognized use of flood easements.
49. Nonetheless, the hydraulic modeling prepared by the INDOT and accepted by the DNR, which assesses the effects of FW-25881 on the efficiency and capacity of the floodway remains highly important because it is the mechanism by which the lands that may be inundated with water as a result of the project were identified by the INDOT and DNR for purposes of identifying the necessary flood easements. INDOT Exhibit 4. Second, the hydraulic modeling is the means by which the INDOT and DNR concluded that during a regulatory flood the surcharges will not exceed the maximum 1.0 foot established by the National Flood Insurance Program.
50. Undisputed evidence exists that hydraulic modeling prepared by SEC Group, Inc. (“SEC Group”) for INDOT using HEC-RAS version 3.1.3 reveals surcharges upstream of the FW-25881 project will not exceed .94 feet during a regulatory flood. INDOT Exhibits 2 (rfa 6) and 3A.
51. The INDOT modeling submitted to the DNR was reviewed by the DNR’s Professional Engineer Suzanne Delay (“Delay”) in accordance with the Commission’s Information Bulletin #37, “Submission and Review of Hydraulic Modeling for Permit Applications under the Flood Control Act”[4] (IB 37), which endorses the “General Guidelines for the Hydrologic-Hydraulic Assessment of Floodplains in Indiana”. (hereinafter referred to as “General Guidelines”) posted to the Indiana Register at http://www.in.gov/legislative/iac/20110803-IR-312110433NRA.xml.pdf. INDOT Exhibit 3.
52. Undisputed evidence also exists to establish that Nicholas Pinter (“Pinter”) and Jonathan Remo (“Remo”) through Empirical Hydrology Consulting (“EHC”) were commissioned by the Claimants to conduct an independent hydrologic analysis and hydraulic modeling of a 15 mile stretch of the East Fork White River in the vicinity of the FW-25881 project using the HEC-RAS version 4.1.0. Claimants’ Response Exhibit A; INDOT Exhibit 2 (rfa 11 – 13) There exists no evidence in the record from which to establish when the referenced hydraulic model was completed and the record is void of a copy of the modeling report or any evidence regarding assumptions upon which the model was based. However, the Claimants, in “Claimants’ Response in Opposition to Transportation’s Motion for Summary Judgment”, by non-evidentiary explanation assert that this hydraulic model “dated January 1, 2012…simply accepted the major assumptions of Transportation’s SEC modeling…” The INDOT does not offer opposition to this assertion and therefore the assertion is accepted as accurate for purposes of this Order.
53. The Claimants’ hydraulic model indicates upstream surcharges of only .46 feet during a regulatory flood. INDOT Exhibit 2 (rfa 16).
54. Logically a .94 foot surcharge will impact a greater land area than would a .46 foot surcharge. Based upon the two models the INDOT has purchased flood easements for land areas that exceed the flood easements it would have been required if the INDOT had relied upon the HEC Claimants’ model.
55. There exists no actual evidence in the record from which to establish that the EHC model was prepared “under the supervision of a professional engineer with knowledge of generally accepted modeling principles” as required by the General Guidelines.
56. In any event, despite the existence of two hydraulic models, one prepared by the Claimants and one prepared by the Respondents, both of which reveal upstream surcharges below the maximum allowable one foot and there being no dispute that the INDOT purchased flood easements based upon the greater .94 foot upstream surcharge instead of the lesser .46 foot upstream surcharge established by the Claimants, the Claimants continue to dispute the reliability of the INDOT modeling results.
57. On behalf of EHC, Pinter, a professor at Southern Illinois University who holds a B.A. in Geology and Archeology along with an M.S. and PhD in Geology offered that he, along with Remo, reviewed the INDOT’s model that was approved by the DNR. In EHC’s “Review of Flood Surcharges Modeling for the Proposed I-69 Crossing of the East Fork of White River” (“Review”), submitted April 1, 2011 and updated August 1, 2011, Pinter and Remo conclude that certain input data and assumptions forming the basis of the INDOT model, which were reportedly also used in the EHC model, are questionable and that certain of the model implementations are inappropriate. HEC Claimants’ Response Exhibit A.
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58. The evidence indicates that Pinter’s background and presumably his subject area of expertise lies in the field of Geology; not Engineering. The evidence of record is void of any discussion as to Pinter’s qualifications with respect to hydrologic analysis or hydraulic modeling. Remo’s qualifications and background are simply not provided by the Claimants and therefore an evaluation of his expertise in any field of subject matter is impossible. EHC’s opinions are considered against this background and the evidence they provide is given due weight in accordance.
59. In accordance with the General Guidelines 7.3 at the request of INDOT, DNR estimated the regulatory flood peak discharge to be 133,000cfs. INDOT Exhibit 7C.
60. EHC first questions the origin of the 100-year flood discharge noting their inability to locate a hydrologic analysis that matched the regulatory flood discharge of 133,000cfs reported by DNR. EHC further observed that the only hydrologic analysis identified was conducted in 1977 and established the regulatory flood discharge to be 110,000cfs. EHC continued that “DRN (sic.) memo did not specific (sic.) how the 100-year discharge was calculated.” EHC then claimed “[if] the 100-year discharge was calculated in 1998 no effort was made during this modeling effort to use the additional ≥12 years of hydrologic data available from the nearby USGS gauging stations at Shoals (gauge #03373500) along the East Fork or gauge at Petersburg (USGS 03374000) or at Newberry (USGS 03360500) along the White River to update flow frequencies. If the 1977 analysis was the basis for the 100-year discharge determination, then the analysis is more than 33 years out of date…”
61. The INDOT has provided evidence that the DNR calculated the 100-year discharge to be 133,000cfs based upon Section 7.3 of the General Guidelines, which allows consideration of specifically identified informational resources and the application of “engineering judgment.”
62. The Claimants have been provided months of opportunity to engage in discovery and/or depositions to identify the actual sources of information used by the DNR and to obtain insight as to the engineering judgments applied to that information such that a true professional opinion could be offered in opposition to the DNR’s ultimate calculation or that specific professional opposition could be offered in contest to the underlying data used or the engineering judgment applied.
63. At no time do the Claimants’ actually assert that the DNR’s estimated 100-year flood discharge is erroneous or that the data relied upon for the purpose of making the necessary engineering judgments is incorrect. Instead, the Claimants offer hypothesis, speculation and professed ignorance in an effort to raise a question of fact.
64. EHC further questions the INDOT’s and the DNR’s choice of 0.3 as the contraction coefficient indicating that the “proposed crossing will limit flow to ~16% of the current width of the East Fork floodplain, a constriction ratio of 0.16.” EHC proceeds to acknowledge that “[t]he recommended values for contraction coefficients for constriction ratios of 0.0 to 0.25 are 0.3 to 0.5 (USACE, 2008).” Claimants’ Response Exhibit A.
65. By the Claimants’ own evidence the contraction coefficient of 0.3 chosen by the engineers of SEC Group and reviewed by engineer Delay is appropriate for constrictions of 0.16. Id.
66. Despite that acknowledgement EHC recommends “re-modeling the project impacts using a conservative contraction coefficient of 0.5…” because “[s]election of a more realistic (larger) contraction coefficient may well result in modeled flood levels exceeding the maximum permissible surcharge for the 100-year flood allowable under the NFIP (1 foot).” Id. EHC offers no explanation for its determination that a contraction coefficient of 0.5 is “more realistic” than the contraction coefficient of 0.3 approved by Engineer Delay. However, it is clear that the purpose for EHC’s recommendation is to achieve the disapproval of FW-25881 by creating a model that would reflect surcharges in excess of the permissible one foot.
67. EHC further suggests that the SEC Group’s model should have been calibrated to validate the model’s conclusions. Id. While the General Guidelines agree that “[b]eing able to closely replicated observed flood elevations with a flood model does lend credibility to the model” there is no requirement for calibration to be conducted. Furthermore, the failure to conduct such calibration does not, alone, call into question the accuracy of the flood model.
68. EHC, on April 1, 2011 with the submission of its Review and again on August 1, 2011 with the update of its Review, determined that the omission of “the Conrail railroad bridge and causeway located next to Indiana Highway 57” created “additional constriction of the floodway” likely having a significant effect on the surcharges. Id. However, in January 2012, the Claimants offered a contrary opinion stating that “hydraulic modeling performed by EHC shows no significant increase” at the State Road 57 bridge or the railroad bridge. INDOT Exhibit 6 (Int 8).
69. Also in its Review, EHC observed that increased stream power resulting from the FW-25881 project would intensify scour, bank erosion and channel migration leading to increased sediment accumulation that “would reduce the river channel’s carrying capacity and thus could increase flood elevations.” Claimants’ Response Exhibit A. However, in June 2012, the Claimants’ responded as follows with respect to the impact of sediment accumulation upon flood elevations:
Dr. Remo and I are skeptical that the I69 causeway would cause sedimentation significant enough to affect flood levels appreciably, but it cannot be ruled out. …
INDOT Exhibit 2 (rfa 19).
70. The evidence presented by the Claimants’ relating to the increased flood elevations resulting from sediment accumulation or the failure to consider the Conrail railroad bridge or Highway 57 bridge in the SEC Group’s modeling is contradictory and unconvincing and is hereby disregarded.
71. Likewise Claimants’ stated concern with respect to prolonged ponding and ineffective drainage are disregarded as the Claimants’ fail to assert that these concerns relate in any way to the accuracy or inaccuracy of the SEC Group’s flood model or to the surcharges under consideration.
72. The Claimants maintain that the hydraulic model prepared by SEC Group for the INDOT was erroneously based upon the assumption of steady state flow. Claimants’ Response Exhibit A. In support, EHC states that an unsteady-flow model is more appropriate in this instance because East Fork White River is a “low-gradient” river which is impacted by downstream flow and water surface elevations of joining rivers, in this case the West Fork White River. EHC continues that the joinder of the two rivers results in a “back-water” effect that influences water-surface elevations “likely for several miles upstream on the East Fork.” Id.
73. The General Guidelines express that while steady state flow and minimal storage effects have been the traditional assumptions for hydraulic modeling, there “are some situations in Indiana where both of these assumptions cause problems...” The General Guidelines elaborate that one example of these problematic situations include “flat streams with wide overbanks that act as storage areas for flood waters…”, which is considered by the administrative law judge to be descriptive of a low-gradient river with potential back-water.
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74. The INDOT provides no evidence to refute the Claimants’ description of the river stretch at issue or to provide a means of assessing the appropriateness of the INDOT’s assumption to utilize steady-flow hydraulic modeling. The INDOT merely expresses that the computation of unsteady-flow hydraulic modeling can be difficult and “should be used with caution and coordination from IDNR…” General Guidelines, 9.3.
75. EHC also questions the channel bathymetry utilized by the SEC Group in preparing the hydraulic model for the INDOT. EHC offers, and the INDOT does not contest, that the SEC Group utilized representative channel bathymetry using the measured channel bathymetry of one cross section as being representative of the channel bathymetry for a distance of approximately nine miles between cross sections 52.277 through 60.92. Claimants’ Response Exhibit A. Additionally, and again without contest from the INDOT, EHC’s review expresses concern that “for an alluvial-bed river such as the East Fork, the assumption that one cross section is representative of another introduces significant uncertainty…” and notes that this representative channel bathymetry method was utilized despite the fact that at two “measured cross sections 52.200 and 52.289, which are approximately 470 feet apart, reveals a 20% decrease in cross-sectional area of the channel and a 45% decrease in slope (energy gradeline slope).” Id.
76. Additional concerns expressed by EHC with respect to the channel bathymetry utilized by SEC Group is that the topography was obtained from “strip mapping” prepared in 1931 from data collected in 1930. Id. EHC offers that over the course of 80 years “[t]here likely has been significant change in channel geometry…” Id.
77. The INDOT offers no evidence in opposition to the EHC claims that the channel bathymetry utilized by SEC is outdated and potentially opens SEC Group’s hydraulic model to uncertainty and possible error.
78. Without question a modification of the input data and assumptions associated with a hydraulic model will have an impact on the outcome of that model. Likely, this is the reason the General Guidelines adopted by the Commission recommend that hydraulic modeling be completed by or “under the supervision of a professional engineer with knowledge of generally accepted modeling principles” to ensure the most accurate estimation of the impacts of a project upon a floodway. While input data and assumptions adopted for use in a model are subject to re-evaluation, there must exist a competent and reliable basis for such reconsideration. Boyd, supra.
79. To overcome actual evidence presented on motion for summary judgment with respect to the hydraulic modeling prepared by SEC Group for the INDOT the Claimants must offer more than conjecture and speculation.
80. In “Transportation’s Memorandum in Support of Summary Judgment” and more prevalently in “Transportation’s Reply Memorandum”, INDOT refers to the Claimants’ responsibility to “prove that Transportation’s engineering model was fatally flawed”. It is correct that the Claimants will bear this burden of proof at an administrative hearing. However, for purposes of summary judgment it is the moving party, here INDOT, who bears the burden of establishing that there exists no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. On summary judgment the Claimants must only present sufficient evidence to establish that a genuine issue of material fact exists. I.C. 4-21.5-3-23(f); Save Our Rivers, et al. v. Guenther, Ford & DNR, 10 CADDNAR 213 (2006) citing Regina Bieda v. B & R Development and DNR, 9 CADDNAR 1 (2001).
81. The evidence presented by the INDOT is sufficient on many of the issues raised with respect to the hydraulic modeling to support a partial grant of summary judgment. However, while the Claimants’ evidence from a Geologist indicating that the use of representative channel bathymetry and channel bathymetry developed from 80 year old data may not accurately reflect the present topography of the East Fork White River, an alluvial river, would not be sufficient as proof by a preponderance of the evidence that the hydraulic modeling prepared for INDOT by SEC Group is, in fact, flawed, this evidence is sufficient to overcome the INDOT’s motion for summary judgment as it relates to the impacts of the bathymetry data upon SEC Group’s hydraulic model.
82. The DNR’s review of the INDOT’s application must conclude that the project will not result in “unreasonable detrimental effects upon fish, wildlife or botanical resources”, which is defined as:
… 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.
It is noted that 312 IAC 10-2-39 expressly authorizes the establishment of a mitigation plan to address a project’s impacts upon fish, wildlife and botanical resources.
83. The DNR’s evaluation of the INDOT’s application for FW-25881 included review by its Division of Law Enforcement, Division of Historic Preservation, Division of Nature Preserves, Division of Outdoor Recreation and the Division of Fish and Wildlife. The review conducted by the Division of Fish and Wildlife also considered issues of potential importance to the Division of Forestry. These Divisions each reported no concerns with the DNR’s approval of FW-25881. INDOT Exhibit 3, 3B and 3C.
84. Particularly of note is the Division of Nature Preserves’ failure to identify any listed plant, animal or insect species or high quality natural community within one-half mile of the project and further failure to identify a nature preserve or other significant site within the project area. INDOT Exhibit 3.
85. The Division of Fish and Wildlife review conducted by Statewide Environmental Biologist, Patricia Clune (“Clune”), and reported on September 16, 2010 concluded as follows:
Impacts should be acceptable except for the wetland impact associated with the North overflow Channel and possible wetlands on the south side of the EF White River that will be mitigated for by the Corn and Purcell mitigation site. All bridges provide adequate space for wildlife to cross under and will require as minimal tree clearing as possible.
INDOT Exhibit 3D.
86. The “Corn mitigation site” and the “Purcell mitigation site” referenced by Clune are also known as the “Sandy Hook Mitigation Site” and the “Horseshoe Pond Mitigation Site”, respectively. These sites are managed by the Ecology and Permitting Office of the INDOT under the direction of Nathan Saxe, Manager, who holds Master of Science degree in Environmental Sciences from Indiana University. INDOT Exhibit 5.
87. The Sandy Hook Mitigation Site is comprised of 285 acres of wetland and upland forest mitigation including “enhancement of 2,672 linear feet of the East Fork of the White River, creation of 5,568 linear feet of ephemeral stream channel, creation of 1.4 acres of forested wetland, and restoration of 1.9 acres of emergent wetland and 3.5 acres of scrub/shrub wetland. Additionally, the design calls for preservation of 71.6 acres of existing forest and reforestation of 90.4 acres – of which 46.4 acres is bottomland forest, 12.8 acres is riparian zone plantings, and 31.2 acres is upland forest.” Id.
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88. The Horseshoe Pond Mitigation Site “design includes construction of 7,310 linear feet of stream channel, and creation/restoration of 5.8 acres of forested wetland and 2.3 acres of emergent wetland. Additionally, the site design calls for the preservation of 34.0 acres of existing forest and wetland, and the reforestation of 101.8 acres – of which 81.7 acres is bottomland forest, 3.0 acres is upland forest, and 17.1 acres is riparian zone plantings.”
89. In addition to the establishment of the Sandy Hook and Horseshoe Pond Mitigation Sites, FW-25881 contains several special conditions recognized to be at least in part associated with the protection of fish, wildlife and botanical resources. Those conditions include:
(1) Revegetate all bare and disturbed areas with a mixture of grasses (excluding all varieties of tall fescue), legumes, and native shrub and hardwood tree species as soon as possible upon completion.
(2) Minimize and contain within the project limits in channel disturbance and the clearing of trees and brush and provide the opportunity to utilize cleared trees of firewood and timber size.
(3) Do not work in the waterway from April 1 through June 30 without the prior written approval of the Division of Fish and Wildlife.
(4) Do not cut any trees suitable for Indiana bat roosting (greater than 3 inches dbh, living or dead, with loose hanging bark) from April 1 through September 30.
(5) Use minimum average 6 inch graded riprap stone extending below the normal water level to provide habitat for aquatic organisms in the voids.
…
(9) minimize the movement of resuspended bottom sediment from the immediate project area.
(10) appropriately designed measures for controlling erosion and sediment must be implemented to prevent sediment from entering the stream or leaving the construction site; maintain these measures until construction is complete and all disturbed areas are stabilized.
…
(13) do not excavate or place fill in any riparian wetland.
(14) delineate and field mark all wetlands within the project area before construction begins.
(15) this project is associated with the currently constructed mitigation sites of Corn (CTS-CT-2533) and Purcell (CTS-CS-2524); the sites must be monitored for the survival of plantings and monitoring reports must be submitted to the Statewide Environmental Biologist at the Division of Fish and Wildlife, 402 W. Washington St., Room W273, Indianapolis, Indiana 46204-2781; please refer to the approved FEIS for I-69, Section 2 for additional mitigation requirements.
….
INDOT Exhibit 1C.
90. Further assessment of FW-25881 associated with wildlife and habitat related particularly to the Indiana Bat (Myotis sodalis) and was carried out by the U.S. Fish and Wildlife Service (“USFWS”) in accordance with section 7 of the Endangered Species Act of 1973 (“ESA”) at the request of the Federal Highway Administration (“FHWA”). INDOT Exhibit 5C. The assessment dated February 2010, which included consideration of impacts of White-nose Syndrome, a new threat to the wellbeing of North American bats, including the Indiana bat, included “non-discretionary Reasonable and Prudent Measures and associated Terms and Conditions to further minimize the incidental take[5] of Indiana bats…”. These conditions are in addition to the DNR’s imposed Special Conditions. Id. The USFWS concluded that Section 2 of the I-69 project (at issue herein) was likely to result in the “incidental take of Indiana bats…but the impact of such taking is not likely to jeopardize the continued existence of the Indiana bat and is not likely to adversely modify the bat’s designated Critical Habitat.” Id.
91. The evidence clearly establishes that FW-25881 will not create a condition in which “unreasonable detrimental effects upon fish, wildlife or botanical resources” will occur. 312 IAC 10-2-39.
92. The Claimants state in their arguments that the DNR “relied upon outdated or incomplete data on the Indiana bat” and that reliance upon such flawed or incomplete data has “likely” resulted in an erroneous determination by the DNR. See Claimants’ Response in Opposition to Transportation’s Motion for Summary Judgment (emphasis added). The Claimants’ very own statement reveals the speculative nature of their contention. Claimants have presented not one affidavit or other evidence to support their position that the DNR’s conclusions are, in fact, erroneous.
93. Furthermore, the Claimants assertion that the DNR relied upon incomplete data is likewise questionable. The Claimants merely assert that there is “no evidence in the record” that Clune considered information relating to the discovery of White-nose Syndrome in Washington County, Indiana that came to light after September 16, 2010.
94. Again, the Claimants have been allowed several months within which to conduct discovery by which they could have ascertained exactly what information was considered by Clune and whether Clune considered supplemental information received after the submission of her September 16, 2010 conclusions were submitted. However, the Claimants provide no affidavit or other form of appropriate evidence to support their assertion. The Claimants may not rely solely upon bold and bare-faced contentions but must, instead, bring forth “affidavits or other evidence permitted under this section and set forth specific facts showing that there is a genuine issue in dispute.”
95. The Claimants’ explain, again without providing evidence[6], that on April 12, 2011 the USFWS “agreed to reinitiate formal consultation” with the FHWA, with respect to the impacts of the I-69 construction upon the Indiana bat. This action, which is authorized by the ESA, INDOT Exhibit 5C, pg 40, is a separate issue outside the jurisdiction of the DNR or the Commission. While this “formal consultation” may impact the FHWA in some manner that affects the I-69 project, it has no bearing upon FW-25881, issued under the FCA.
96. The Claimants offer no evidence of the FW-25881 project’s impacts upon any fish, wildlife or botanical resources other than the Indiana bat.
97. Another issue raised by the Claimants related to the DNR’s approval of FW-25881 when the bridge construction at the heart of the project involved “staged” or “design-build” construction plans.
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98. The INDOT does not contest the Claimants’ position that the design of the bridges authorized by FW-25881 was altered while its application for FW-25881 was under consideration by the DNR. However, the Claimants agree that “no design changes occurred to any portion of the bridges in the channel crossing or below the floodway elevation.” INDOT Exhibit 2 (rfa1).
99. The Commission’s jurisdiction under the FCA is limited to the floodway. Provided the portion of the bridges that are within the regulatory jurisdiction of the DNR and the Commission meet the requirements set forth in the FCA, other bridge design decisions would be outside the jurisdictional authority of the DNR. See Boyd, et al. v. DNR and Floyd Commissioners, 8 CADDNAR 5 (1997), Edwardsville Water Corp., Citizens Against the Pit v. DNR, Silver Creek Sand and Gravel, 8 CADDNAR 115, 116 (1998).
100. “Cumulative effects” are “impacts that result 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.”
101. The undisputed evidence establishes that “no other proposed or approved floodway projects exist on the East Fork White River between the point where the I-69 bridges will be built and upstream to Highway 257.” INDOT Exhibit 2 (rfa 5).
MATERIAL FACTS EXISTING WITHOUT SUBSTANTIAL CONTROVERSY
102. Summary Judgment is granted in favor of the INDOT and the DNR as follows:
a. FW-25881 will not result in unreasonable detrimental effects upon fish, wildlife or botanical resources.
b. The failure of INDOT to provide flood easements and the failure of the DNR to require submission of flood easements prior to approval of FW-25881 is not grounds for rescission of FW-25881.
c. The alteration of the bridge design, all of which occurs outside the floodway, is not within the jurisdiction of the DNR or the Commission and does not form the basis for rescission of FW-25881.
d. There are no approved or proposed floodway projects in the area of the FW-25881 for consideration with respect to further cumulative effects analysis.
e. The hydraulic modeling completed by SEC Group for the INDOT, which was accepted by the DNR, is not flawed as a result of the following:
i. The choice of model contraction coefficients;
ii. The use of potentially out-dated hydrology;
iii. The absence of model calibration;
iv. The omission of the Conrail Railroad bridge;
v. Channel degradation/Increased sedimentation; or,
vi. Alternate drainage/Prolonged ponding.
MATERIAL FACTS IN ACTUAL AND GOOD FAITH CONTROVERSY
103. No evidence was presented on summary judgment with respect to alleged violations of the Navigable Waterways Act, I.C. 14-29. This issue remains viable for consideration at an administrative hearing.
104. No evidence was presented on summary judgment with respect to whether FW-25881 will constitute an unreasonable hazard to the safety of life or property, I.C. 14-28-1-22(e)(2). This issue remains viable for consideration at an administrative hearing.
105. Further consideration of the cumulative effects of the FW-25881 project is appropriate; however, such consideration will be confined to consideration of only existing conditions. See Finding 102d.
106. Further consideration of the hydraulic modeling completed by SEC Group for the INDOT, which was approved by the DNR, is appropriate with respect to:
a. The use of Steady Flow assumption as opposed to the use of Unsteady Flow assumption.
b. The use of representative channel bathymetry and potentially outdated channel bathymetry.
[1] I.C. 4-21.5-3-23 was amended by P.L.32-2011, SEC.5 effective July 1, 2012. The instant proceeding was initiated on March 28, 2011, before the effective date of the amendment and for this reason references to I.C. 4-21.5-3-23 in the context of the present proceeding refer to the version effective prior to July 1, 2012.
[2] INDOT’s Exhibit 3E indicates the submission of the flood easements to DNR may have occurred on August 30, 2011.
[3] Although not an issue presented here, it is observed that a secondary opportunity to seek administrative review of a permit could be created with respect to a DNR action, whether approval or rejection, of a submission made in compliance with a conditional approval such the one created by the inclusion of special condition 21.
[4] Within the Sworn Statement of Michael Neyer (INDOT Exhibit 3), Information Bulletin #37 is identified erroneously as having the title “General Guidelines for the Hydrologic-Hydraulic Assessment of Floodplains in Indiana.” Information Bulletin #37, however, adopts the “General Guidelines for the Hydrologic-Hydraulic Assessment of Floodplains in Indiana” as the basis for evaluation of modeling submitted to the DNR so this error is understandable and is explained here only to improve clarity.
[5] “Take” is described within the report to include harm through habitat modification, loss of roosting habitat, alternate roost, loss of foraging habitat and travel corridors as well as harassment, wounding, killing or other harm from disturbance and habitat loss associated with demolition and relocation of permanent structures and utility relocations as well as death from direct vehicular collisions and harassment of roosting near construction areas related to noises, vibrations and other construction related influences.
[6] A copy of three pages of a Complaint filed in the United States District Court, Southern District of Indiana, containing the allegations of certain Claimants to this proceeding is not viewed as reliable evidentiary material in light of the reality that the Complaint merely contains allegations of interested parties.