[CITE: Miller, et al. v. Rogers Group, Inc. and DNR, 13 CADDNAR 298 (2014)]
[VOLUME 13, PAGE 298]
Cause #: 14-045W
Caption: Miller, et al. v. Rogers Group, Inc. and DNR
Administrative Law Judge: Jensen
Attorneys: pro se (Claimants); Gutwein, Shelmon (Rogers Group); Grow (DNR)
Date: December 2, 2014
[See Editor’s note at end of this document regarding change in the decision’s original format.]
FINAL ORDER ON MOTION FOR SUMMARY JUDGMENT
81. The Permit (identified as FW-27123) is affirmed in all respects.
FINDINGS OF FACT AND CONCLUSIONS OF LAW WITH
Procedural and Jurisdictional Background
1. The instant proceeding considers the Department of Natural Resources’ (“Department”) January 30, 2014 approval of a permit application submitted by the Rogers Group, Inc. (“Rogers Group”) seeking authorization to conduct floodway construction activities contemporaneous with a planned stone quarry development. The approved Certificate of Approval Construction in a Floodway document was identified as FW-27123. (Hereinafter the Certificate of Approval Construction in a Floodway FW-27123 will be referred to as “the Permit”.)
2. Construction activities within a floodway are governed by Indiana Code §§ 14-28 and 312 IAC 10. Particularly applicable to this proceeding is Indiana Code § 14-28-1-22(e) and 312 IAC 10-4-1(a), which require a person, in this instance the Rogers Group, to obtain a license from the Department 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).
3. The license issued to the Rogers Group by the Department is subject to administrative review under the authority of Indiana Code §§ 4-21.5-3-5.
4. The Natural Resources Commission (“Commission”) is the ultimate authority for this administrative review. Indiana Code § 4-21.51-15, Indiana Code § 14-10-02-3, 312 IAC 1-1-29 and 312 IAC 3-1-2.
5. The Commission possesses jurisdiction over the persons of the parties and the subject matter of this proceeding.
6. The instant proceeding was initiated through the filing of a joint petition for administrative review on February 15, 2014 by Kay Miller, Bill Miller, Phil Maxwell, Teresa Maxwell, the Deer Creek Prairie Levee Association, Randy Deno, Sue Deno, Dan Cassens d/b/a Cassens Christmas Tree Farm and Dale Wolfe d/b/a Dale Wolfe’s Leisure Time Campground. (Hereinafter Kay Miller and Bill Miller are referred to collectively as “the Millers”.)
7. A second proceeding involving FW-27123 was initiated by Kevin B. Schnepp through the filing of a second petition for administrative review on February 14, 2014. The second proceeding was identified as Schnepp v. Rogers Group and DNR, Administrative Cause Number 14-044W.
8. Joint prehearing conferences were conducted in this proceeding and in Schnepp v. Rogers Group and DNR, on March 12, 2014. The proceedings were not consolidated.
9. On May 6, 2014, a final order of dismissal was entered in Schnepp v. Rogers Group and DNR, Administrative Cause Number 14-044W on the motion of Kevin B. Schnepp.
10. With respect to the instant proceeding, a final order of dismissal as a party was issued on April 25, 2014 with respect to Dale Wolfe d/b/a Wolfe’s Leisure Time Campground following his filing of correspondence seeking to withdraw as a party on April 21, 2014. Similarly, Daniel Cassens d/b/a Cassens Christmas Tree Farm moved to be dismissed from this proceeding on April 21, 2014 and a final order granting his motion was issued on May 23, 2014. Further, on October 14, 2014 a final order of dismissal as to Claimants, Randy Deno and Sue Deno, was entered following their filing, on October 9, 2014, of correspondence seeking to dismiss their complaint in this proceeding.
11. On May 20, 2014 a second prehearing conference was conducted as scheduled. At that time a schedule was established for the parties’ filing of summary judgment motions and related briefs.
12. In a July 18, 2014 entry by presiding Administrative Law Judge Stephen L. Lucas it was clarified that the Maxwells were participating in the instant proceeding on their own behalf as well as in a representative capacity for the Deer Creek Prairie Levee Association. (Hereinafter Phil Maxwell, Teresa Maxwell and the Deer Creek Prairie Levee Association are referred to collectively as “the Maxwells”.)
13. The Millers and the Maxwells are collectively referred to as “the Claimants” throughout the remainder of this Order.
14. The Rogers Group filed its motion for summary judgment on July 14, 2014. The Maxwells filed their response on August 13, 2014.
15. The Millers filed a request for extension of time to file their response on August 13, 2014. However, timing prevented the issuance of an order with respect to the Millers’ request for extension of time before the August 14, 2014 filing deadline; therefore the Millers filed a response to the Rogers Group’s motion on August 14, 2014.
16. Administrative Law Judge Lucas, on August 15, 2014, granted the Millers motion for extension of time allowing an additional fifteen (15) days, or until August 29, 2014, to file their response brief.
17. On August 25, 2014, the Department filed motion for leave to file a late motion for summary judgment with Administrative Law Judge Lucas granting the parties until September 9, 2014 to offer any objections to the motion.
18. Following the August 29, 2014 retirement of presiding Administrative Law Judge Lucas, Administrative Law Judge Jensen qualified as the substitute administrative law judge for the Natural Resources Commission on September 19, 2014.
[VOLUME 13, PAGE 299]
19. The Millers filed an untimely supplemental response brief on September 2, 2014, which was stricken through the issuance of an order on September 19, 2014.
20. Also on September 19, 2014, observing that no party had objected to the Department’s motion for leave to file a late motion for summary judgment, Administrative Law Judge Jensen issued an order authorizing the Department’s filing of its motion and further providing the opportunity for parties besides the Department to file a response to that Department Motion on or before October 3, 2014.
21. Certain inadmissible evidence presented in conjunction with the Maxwells’ and the Millers’ responses to Rogers Group’s motion for summary judgment were stricken through an order issued on September 23, 2014.
22. On October 3, 2014, the Millers timely filed their response to the Department’s motion for summary judgment.
Summary Judgment Standard
23. Except for expressly requiring the service of motions, responses and designated evidence to be carried out as required by Indiana 4-21-5-3 and expressly applying Indiana Code §§ 4-21.5-3-28 and 29 to any order on summary judgment that disposes of all the issues to a proceeding, Indiana Code § 4-21.5-3-23, specifies that motions for summary judgment under Indiana Code §§ 4-21.5 shall be considered under Trial Rule 56 of the Indiana Rules of Trial Procedure.
24. Indiana Rules of Trial Procedure, Trial Rule 56 expressly states that a party “against whom a claim, counter-claim or cross-claim has been asserted… may, at any time, move with or without supporting affidavits for a summary judgment in his favor as to all or any part thereof.” In this instance the Department and Rogers Group, as parties against whom a claim has been made by the Millers and the Maxwells, may seek summary judgment.
25. A moving party’s motion for summary judgment as well as an adverse party’s response shall “designate to the court all parts of pleadings, depositions, answers to interrogatories, admissions, matters of judicial notice, and any other matters on which it relies for purposes of the motion.” The adverse party’s response “shall also designate to the court each material issue of fact which that party asserts precludes entry of summary judgment and the evidence relevant thereto.” Trial Rule 56(C).
26. The administrative law judge is instructed that;
The judgment sought shall be rendered forthwith if the designated evidentiary matter shows that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. A summary judgment may be rendered upon less than all the issues or claims, including without limitation the issue of liability or damages alone although there is a genuine issue as to damages or liability as the case may be. A summary judgment upon less than all the issues involved in a claim or with respect to less than all the claims or parties shall be interlocutory unless the court in writing expressly determines that there is no just reason for delay and in writing expressly directs entry of judgment as to less than all the issues, claims or parties. The court shall designate the issues or claims upon which it finds no genuine issue as to any material facts. Summary judgment shall not be granted as of course because the opposing party fails to offer opposing affidavits or evidence, but the court shall make its determination from the evidentiary matter designated to the court.
Id.
27. “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.” Philbeck v. Collins & Altman, 13 CADDNAR 219 (2013), citing Wells v. Hickman, 657 N.E.2d 172, 175 (Ind. App. 1995).
28. "Summary judgment is appropriate only where the evidence shows there is no genuine issue of material fact and the moving party is entitled to a judgment as a matter of law." Girl Scouts v. Vincennes Indiana Girls, 988 NE 2d 250, 253, (Ind. 2013), citing Tom-Wat, Inc. v. Fink, 741 N.E.2d 343, 346 (Ind. 2001).
29. “A party moving for summary judgment has the burden of showing there is no genuine issue of material fact.” Steven T. Gerber v. DNR, 9 CADDNAR 31, (2001) citing Marsym Development Corp. v. Winchester Econ. Devel. Comm'n, 447 N.E.2d 1187 (Ind. App. 1983). See also Bieda v. B&R Development and DNR, 9 Caddnar 1 (2000).
30. “A court must construe all designated evidence and reasonable inferences in favor of the non-moving party, and resolve all doubts against the moving party.” Town of Avon v. West Central Conservancy, 957 NE 2d 598, 602 (Ind. 2011).
31. “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.” Graham v. Vasil Management Co., Inc. 618 N.E.2d 1349 (Ind. App. 1993). “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.” Day and Schramm v. McCulloch & DNR, 13 CADDNAR 184, 186 (2013) citing, York v. Union Carbide Corp., 586 N.E.2d 861 (Ind. App. 1992).
Findings of Fact
32. The February 15, 2014 correspondence filed with the Commission by the Claimants highlights fifteen concerns raised through citizen petitions submitted for the purpose of requesting a public hearing before the Permit was issued. The Claimants’ correspondence refines their request for administrative review and the issues raised, over which the Commission possesses jurisdiction[1], are generally restated as follows:
a. The project will create an overburden area over one mile long, 290-310 feet wide and 67.5-72.5 feet high and may cause a narrowing of the channel of the Wabash River thereby constituting an “undue restriction of the capacity of the floodway” in violation of 312 IAC 10-1-2(b) and having the effect of increasing instances of flooding and increasing stream velocity thereby causing bank erosion;
b. Increased flooding resulting from the project will:
i. Decrease “tillage and planting thus diminishing the livelihood of the farmers”;
ii. Jeopardizing “various botanical specimens including sedge, natural springs, and various wildlife species”;
iii. Will overburden the existing “pump station used to protect the area”;
iv. “Engulf the [New Albany shale] overburden” producing hydrogen sulfide contamination within the waters of the Wabash River;
v. Allow hydrogen sulfide to infiltrate the aquifer thereby damaging residential and commercial water wells;
c. The project will facilitate the creation of noise pollution;
Claimants’ Request for Administrative Review
33. Rogers Group, with the assistance of its agent, T-Bird Design Services Corporation (“T-Bird”) submitted its application for the Permit on April 30, 2013[2] and was approved by the Department on January 30, 2014. Rogers Group Exhibit A, pgs. 1 & 191.
34. Rogers Group’s designated evidence establishes that the Department conducted extensive review of the application. The review resulted in the Department’s issuance of “Incomplete Application Notices” (“IAN”) on June 28, 2013, September 10, 2013, October 9, 2013 and October 31, 2013. Rogers Group Exhibit A, pgs.1, 34, 55 & 131.
[VOLUME 13, PAGE 300]
35. The Department’s hydraulic modeling evaluation was conducted by Steve Bradley under the review of David B. Knipe, who is both a Professional Engineer and Certified Flood Plain Manager. Rogers Group Exhibit A, pgs. 12, 61 & 138. The Rogers Group’s hydraulic modeling was prepared and revised by Rajindra Gosine, who is also a Professional Engineer, Certified Floodplain Manager and Licensed Professional Geologist. Rogers Group Exhibit A, pgs. 9, 80, 145.
36. The Department’s environmental review was conducted by Brian Boszar, an environmental biologist[3]. Rogers Group Exhibit A, pg. 8.
37. The Rogers Group’s application was ultimately approved by James J. Hebenstreit, who is also a Professional Engineer and who serves as the Department’s Division of Water Assistant Director. Rogers Group Exhibit A, pg. 192.
38. The Department’s June 28, 2013 IAN (“IAN #1”) provided a four page assessment that identified certain deficiencies in the hydraulic modeling provided with the Rogers Group’s application along with an environmental assessment of the Rogers Group’s proposed project wherein the Department concludes that the “construction of this project will likely impact adjacent wetlands”, identified as “a fen (known locally as Americus Fen)” both directly and indirectly. Rogers Group Exhibit A, pgs. 1-12. In IAN #1 the Department provided a non-inclusive listing of corrections and revisions to be made by the Rogers Group to address the deficient hydraulic modeling and the environmental concerns.
39. The Rogers Group responded to the Department’s IAN #1 on August 12, 2013. Rogers Group Exhibit A, pgs.13-24 & 29-33.
40. The Department’s September 10, 2013 IAN (“IAN #2”) was issued on the recommendation of the Department’s Division of Fish and Wildlife seeking additional detail associated primarily with the Rogers Group’s intention to “constantly remove” groundwater from the quarry pit and the potential negative impact of this activity upon groundwater levels of adjacent properties, particularly the nearby Americus Fen, as well as streambank stability. The Department concluded that these adverse impacts may consequently “negatively impact fish, wildlife and botanical resources.” Rogers Group Exhibit A, pgs. 2 & 34.
41. While the date of the Rogers Group’s response is not identified, the Roger’s Group provided a detailed, seven-page response to the Department’s IAN #2. Rogers Group Exhibit A, pgs. 35-41. The Rogers Group’s response also offered additional mitigation consistent with the Department’s August 31, 2013 “Early Coordination/Environmental Assessment”. Id., pgs. 42-50.
42. On October 9, 2013 and again on October 31, 2013, the Department issued two additional IANs (“IAN #3 and IAN #4, respectively), both of which related to hydraulic modeling deficiencies. Rogers Group Exhibit A, pgs.55-61 & 131-138. Of particular notability is that many of the deficiencies identified in IAN #4 are associated with items added to the project by the Rogers Group in Response to the Departments IAN #2 to address the concerns of the Department’s Division of Fish and Wildlife. Compare Rogers Group Exhibit A, pgs. 42-50 and 131-138. The Rogers Group responded to IAN #3 on October 10, 2013 and to IAN #4 on November 1, 2013.
43. In approving the Rogers Group’s application and issuing the Permit, the Department accepted the Rogers Group’s “Hydraulic Modeling Results”. Rogers Group Exhibit A, pg. 190. Those results reflect that the regulatory flood impact of the Rogers Group’s project will be a 0.07 foot increase above base flood elevations at cross sections 326.52, 326.86, 327.19 and 327.19 with maximum cumulative regulatory flood impacts of 0.14 foot increases in elevation at cross sections 326.52 and 326.86.
44. Issuance of the Permit was also conditioned upon the Roger’s Group’s acceptance of “conditions and limitations stated on the pages entitled ‘General Conditions’ and ‘Special Conditions’”. Rogers Group Exhibit A, pg. 194.
45. The “Special Conditions” assigned to the Permit offer numerous safeguards related to the Department’s environmental assessment and concerns associated with impacts upon fish, wildlife and botanical resources.
46. Three of these Special Conditions are particularly applicable to the Claimants’ concerns:
(a) Special Condition #17 requires the installation of a slurry wall to minimize any dewatering of the adjacent wetlands, including the Americus Fen. By minimizing impacts upon the wetlands, negative impacts upon botanical resources within the wetlands, including the yellow sedge, and reptiles living within the wetland, such as the endangered spotted turtle, are likewise decreased. See Rogers Group Exhibit A, pgs. 30, 36-39 & 196 (Special Condition 17).
(b) Special Condition #13 obligates the Rogers Group to install and maintain an exclusion fence around the construction areas throughout all construction and site activities to minimize the impact upon wildlife, including the spotted turtle. Rogers Group Exhibit A, pgs. 40 & 196 (Special Condition 13).
(c) Special Condition #14 provides the requirement to remove unharmed any spotted turtles encountered within the construction site or quarry operations to a location outside the exclusion fence along with the mandate that an additional permit be obtained from the Department’s Division of Fish and Wildlife prior to handling the turtle. Rogers Group Exhibit A, pgs. 40 & 196.
47. Numerous other Special Conditions addressing fish, wildlife and botanical resource protections were also mandated. Those include the following:
(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
(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) Do not excavate in low flow areas except for the placement of piers, foundations, and riprap
…
(8) Use minimum average 6 inch graded riprap stone extended below the normal water level to provide habitat for aquatic organisms in the voids
…
(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.
(11) Seed and protect all disturbed streambanks and slopes that are 3:1 or steeper with erosion control blankets (follow manufacturer’s recommendations for selection and installation); seed and apply mulch on all other disturbed areas
(12) Plant five trees, at least 2 inches in diameter-at-breast height, for each tree which is removed that is ten inches or greater in diameter-at-breast height
…
(15) Do not construct outfall structures adjacent to riffles or gravel areas of the river
(16) Protect the area around and below any concentrated discharge points with an appropriate material that can withstand the erosive forces of the river
…
Rogers Group Exhibit A, pgs. 195-196.
[VOLUME 13, PAGE 301]
48. The Maxwells’ response to the Rogers Group’s motion for summary judgment establishes that they are presently farmers of the river bottom area located to the east and north of the Rogers Group’s proposed quarry and that family members have farmed the same area since the late 1800’s and were instrumental in the creation of the levee maintained to date by the Deer Creek Prairie Levee Association in or near 1890, which, in conjunction with a “pump station”, protects the area from flooding. Maxwells’ correspondence filed August 13, 2014, pg. 1.
49. Clearly, the Maxwells are personally familiar with the area they farm, referred to as “Peaceful Valley”. Id.
50. The Maxwells offer the conclusion that flood events have increased in the 2000’s adding the possible explanation that “increased housing, driveways, roadways that cause more water run-off and more impediments to flow” may be the cause. Maxwells’ correspondence filed August 13, 2014, pg. 2.
51. Ultimately, the Maxwells simply “ask that you review the information and consider the farming we, and others do, and the landowners in Peaceful Valley is in jeopardy with the removal of over 100 acres of flood plain and that [the Department] did make an error in allowing this permit.” Id.
52. The Maxwells’ response offers only their concern that the Permit will cause increased flooding thereby jeopardizing their farm land and their livelihood. The Maxwells offer no evidence to refute the outcomes established by the hydraulic modeling prepared and reviewed by Professional Engineers and Certified Flood Plain Managers of both the Department and the Rogers Group.
53. The Millers provide mathematical calculations to support their belief that the Rogers Group’s quarry will remove 125 acres of flood plain.
54. The Millers state the ultimate conclusion that:
The water that would normally occupy this area would be forced to the north side of the Wabash River into the Deer Creek Prairie Levee protected fields. …
The overburden would end near where the elevation of the land begins to rise. If there is a gap it would jeopardize the FEN recognized by the DNR as a valuable asset to the state of Indiana….Therefore, the Rogers Group quarry will result in an unreasonable hazard to life or property.
Millers’ Response to Motion for Summary Judgment filed August 14, 2014, pg. 3.
55. The Millers offer no supporting evidence for their conclusion that the Rogers Group’s proposed quarry will cause waters to be diverted to the north side of the Wabash River or into the Deer Creek Prairie Levee Association’s fields.[4] Likewise, the Millers offer only their statement of belief that the location of the overburden will jeopardize the Americus FEN.
56. With respect to the damage the Millers discuss, they offer no evidentiary support stating only that “the following damage to private property is most likely to occur.” Millers’ Response to Motion for Summary Judgment filed August 14, 2014, pg. 1.
57. The Claimants offer no actual evidence in opposition to the Rogers Group’s and the Department’s expert opinion that the cumulative regulatory flood elevation will be only 0.14 feet above base flood elevations.
58. In addition to the belief that increased flooding will occur thereby resulting in damage to agricultural ground, crops and the livelihood of area residents, the Millers also question “what happens when flood water engulf the shale overburden?” The Millers’ question is the basis of their proposition that residential and commercial water wells may be contaminated by resulting hydrogen sulfide, which they contend creates “distasteful sulfur water” and causes damage to metallic water fixtures. Claimants’ Request for Administrative Review, pg. 3.
59. The Millers offer hearsay evidence to support their proposition that pyritic shale exists within the Rogers Group’s proposed project area. Millers’ Response to Motion for Summary Judgment filed August 14, 2014, (Fairfield Builders Supply Corp Core Hole #1 and #79-1 Reports). This evidence was properly objected to by the Rogers Group and cannot, alone, form the basis for an order. Indiana Code § 4-21.5-3-26(a). Furthermore, with respect to this topic the Millers’ complete evidence consists of the following statement:
Core samples obtained from the Indiana Geological Survey at Indiana University indicated shale present in the area to be mined. If this contaminates water discharged into the Wabash River, the pyrite can cause suffocation of botanical life and be detrimental to the aquatic life the same as happened in the Cheat River in Virginia.
Millers’ Response to Motion for Summary Judgment filed August 14, 2014, pg. 3.
60. The Millers add that the continuous draining of the Roger Group’s quarry pit will further jeopardize the Americus Fen, a concern raised by the Department in its IAN #2. The Millers offer no evidence to support a conclusion that the Permit’s Special Condition # 17 fails to provide adequate protection of this resource.
61. With respect to the Millers’ claim that the Permit authorizes activity that will be unreasonably detrimental to fish, wildlife and botanical resources, they specifically note the Department’s statement of concern regarding the “degradation or loss of habitat associated with the Americus FEN, and potential harm to the spotted turtle and the yellow sedge.” The Millers add that the Americus Fen and the Wabash River in the area provides habitat for the Indiana bat, a federal and Indiana endangered species, as well as an “abundance of mussels...” Millers’ Response to Motion for Summary Judgment filed August 14, 2014 and Millers’ Response to Department Motion for Summary Judgment filed October 3, 2014.
62. The Millers, instead of providing evidence upon which to base a conclusion that the Permit’s Special Conditions fail to provide adequate protection for these resources, instead question the ability of the Department to enforce the special conditions of the Permit and offer questions and speculation:
How will the Fen be protected? It would take another Ice Age to create another FEN. According to the DNR it is a valuable high quality resource that should be protected.
Core samples obtained from the Indiana Geological Survey at Indiana University indicated shale present in the area to be mined. If this contaminates water discharged into the Wabash River, the pyrite can cause suffocation of botanical life and be detrimental to the aquatic life the same as happened with the Cheat River in Virginia.
Millers’ Response to Motion for Summary Judgment filed August 14, 2014, pg. 4.
[VOLUME 13, PAGE 302]
Conclusions of Law
63. Applicable to the Department’s approval of a permit authorizing construction within a floodway is Indiana Code § 14-28-1-22, 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.
64. As a project that involves both excavating and placing obstructions within the floodway, the stone quarry proposed by the Rogers Group clearly required the Permit to be issued by the Department under Ind. Code § 14-28-1-22(e).
65. Before approving the Rogers Group’s application for the Permit, the Department must have been of the opinion that the Rogers Group had “clearly proven” that the excavation and obstruction complied with Ind. Code § 14-28-1-22(e)(1-3).
66. Upon receipt of information from the Rogers Group sufficient to demonstrate that the application complied with Ind. Code § 14-28-1-22(e), the Department director is required to issue the permit. Ind. Code 14-28-1-22(e).
67. "Cumulative effects" described in Ind. Code 14-28-1-22(f) are:
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. Each of the following elements is considered when assessing the impact of cumulative effects within a floodway:
(1) Adverse effects on the efficiency of, or undue restrictions to the capacity of, the floodway.
(2) Unreasonable hazards to the safety of life or property.
(3) Unreasonable detrimental effects upon fish, wildlife, or botanical resources.
312 IAC 10-2-18.
68. To adversely affect the efficiency of or unduly restrict the capacity of the floodway, as stated at Ind. Code 14-28-1-22(e)(1) 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
69. "‘Base condition’ means the condition of the flood plain on January 1, 1973, but without any unauthorized dam or levee. If an activity after December 31, 1972, lowered the regulatory flood profile, the flood plain under the lower profile is the base condition.” 312 IAC 10-2-5
312 IAC 10-2-39 (emphasis added)
70. “‘Regulatory flood’ is a flood having a one percent (1%) probability of being equaled or exceeded in a year as calculated by a method and procedure that is approved by the commission. The regulatory flood is equivalent to the base flood or the 100-year frequency flood.” 312 IAC 10-2-35.
71. The evidence presented on summary judgment clearly establishes that the maximum cumulative increase in the elevation of the regulatory flood associated with the Permit is fourteen hundredths (0.14) of a foot, which is under the definitional threshold to establish that the project will adversely affect the efficiency of or unduly restrict the capacity of the floodway of the Wabash River.
72. The conclusions and beliefs of the Claimants, unsupported by independent and quantifiable data, are insufficient to overcome the evidence of conclusions reached by professional engineers and certified floodplain managers from both the Department and Rogers Group. The Claimants have failed to bring forth sufficient evidence to establish the existence of a genuine issue of material fact associated with impacts to the capacity or efficiency of the floodway.
73. As stated in Ind. Code 14-28-1-22(e)(2) an "Unreasonable hazard to the safety of life or property" refers to:
a condition that is likely to:
(1) be caused 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.
74. In the proper case, the existence of an unreasonable hazard to the safety of life or property may be established despite the fact that the project will not adversely affect the efficiency of or unduly restrict the capacity of a floodway. King v. Hamilton County Commissioners and DNR, 9 CADDNAR 86, 89-90, (2003).
75. The hazards to the safety of life or property referred to by the Claimants relate to damage to residential and commercial water wells from exposure to hydrogen sulfide resulting from pyrite containing shale being exposed to floodwaters as well as the loss of farm ground and agricultural crops. The Claimants’ support these contentions through an expression of their beliefs and concerns but there exists a lack of evidence in the record to support the Claimants’ contentions.
76. Again, the Claimants have failed to provide evidence sufficient to establish the existence of a genuine issue of material fact with respect to the Permit creating unreasonable hazards to the safety of life or property.
77. The "unreasonable detrimental effects upon fish, wildlife, or botanical resources" referred to in Ind. Code § 14-18-1-22(e)(3) relates to:
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 (emphasis added).
78. The Claimants have provided no opinion evidence of a professional qualified to assess the damage, if any, that may occur to fish, wildlife and botanical resources in opposition to the Department’s conclusion that the special conditions associated with the Permit provide sufficient protection of the Americus Fen, as well as the fish, wildlife and botanical resources.
[VOLUME 13, PAGE 303]
79. Therefore, the Claimants have failed to identify the existence of genuine issue of material fact associated with the potential for damage to fish, wildlife, and botanical resources.
80. Statements of concern presented by the Claimants, without benefit of affidavit or other actual evidence, are insufficient to establish the existence of a genuine issue of material fact with respect to the Department’s approval of the Rogers Group’s application and issuance of the Permit. Hoosier Env. Council, et al. v. INDOT & DNR, 13 CADDNAR 69 (2012).
[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. The Final Order, Paragraph 81, has been relocated to the “Final Order” section at the beginning of this document.]
[1] The Claimants raised concerns about noise pollution and air pollution over which the Commission lacked jurisdiction. The Commission’s jurisdictional limits were discussed by Administrative Law Judge Lucas during the prehearing conference.
[2] The Rogers Group’s “Brief in Support of Rogers Group’s Motion for Summary Judgment” erroneously reflects that the application was submitted on June 10, 2013.
[3] The Rogers Group’s “Brief in Support of Rogers Group’s Motion for Summary Judgment” notes that Tom Swinford, Central Region Ecologist, was also involved in conducting the environmental assessment. While this may be accurate, the designated evidentiary material does not verify this fact.
[4] The Millers refer to “photos belonging to Teresa Maxwell” to support this conclusion. The only photo in the record provided by the Maxwells is a Journal and Courier Newspaper photo from July 9, 2003. The significance of this photo to the Millers’ contention cannot be ascertained.