The issuance of a Certificate of Approval of Construction in a Floodway pursuant to IC 13-2-22 and as approved by the Natural Resources Commission on May 19, 1988, is affirmed.
FINDINGS OF FACT
1. The Department of Natural Resources (the "Department") is an agency as the term is defined in IC 4-21.5-3. The Natural Resources Commission of the Department (the "Commission") is the ultimate authority with respect to this proceeding.
2. IC 4-21.5 and IC 13-2 apply to this proceeding.
3. The Commission has jurisdiction over the subject matter and parties to this proceeding.
4. On March 23, 1988, the Department's Advisory Council on Water and Mineral Resources (the "Advisory Council") approved the issuance of a permit to South Lake Marina, Inc. for the construction of an entrance to the marina in the floodway of Trail Creek, Michigan City, Indiana.
5. On April 7, 1988, Rev. Orlando Protho, Thomas R. Anderson and Charlotte J. Read (the "Claimants") filed a petition for administrative review and requested a stay of effectiveness of the permit issued to South Lake Marina.
6. Claimants make three contentions. They first maintain that IC 13-2-22-13, as amended and effective as of July 7, 1988, applies and that the cumulative effects of a permit for construction in a floodway shall be considered. Secondly, Claimants maintain the applicant (South Lake Marina) did not obtain prior approval by the Department of Environmental Management (the "DEM") in accordance with IC 13-2-18.5-5. Finally, Claimants contend that social, human and environmental implications have not been duly considered by the Department.
7. The permit approved by the Advisory Council called for construction to take place in two phases. Phase I called for construction of an entrance to the Marina and a 510 x 465 foot basin. Phase II of the project included the construction of a boat lift and a 540 x 700 foot basin.
8. Claimants contend that the construction of this project will cause the destruction of a viable minority neighborhood (the "Canada Neighborhood") and will place increased environmental stress on Trail Creek itself.
9. On May 19, 1988 the Commission, at its monthly meeting, modified the permit approved by the Advisory Council and limited the permit to include only the work scheduled to take place under Phase I.[FOOTNOTE 1]
10. On June 20, 1988, Claimant filed a petition for administrative review of the permit issued to South Lake Marina as modified by the Commission on May 19, 1988. That administrative action (Cause #88-196W) has been consolidated with this proceeding.
11. On July 26, 1988, a hearing was held to determine whether the permit issued to South Lake Marina, as approved and modified by the Commission, should be issued.
12. IC 13-2-18.5 (regarding the construction of channels) and IC 13-2-22 (the Floodway Control Act) are the basis upon which the Department has jurisdiction in this case. Consequently, the Commission's authority over the parties extends only to the extent the Department may regulate construction of channels and construction within a floodway.
13. IC 13-2-18.5 concerns the construction of channels connecting to a river or stream for the purpose of providing access by boat or otherwise to public or private facilities.
14. Section 5 of IC 13-2-18.5 lists the requirements an applicant must meet prior to the Commission's consideration of the application. Subsection 5(l) states that the applicant must obtain written approval by the DEM for sewage and disposal facilities where such facilities are to serve housing
[VOLUME 5, PAGE 37]
developments of more than five lots.
15. Claimants maintain South Lake Marina is not in compliance with this section because it never obtained written approval from the DEM for sewage disposal facilities.
16. During the hearing a representative of the Department testified that DEM did not consider IC 13-218.5-5(l) applicable because no housing development was planned under the proposed permit. Testimony further revealed that at no time during the application process was the Department aware of any housing units to be constructed by the applicant.
17. The statutory requirement found under IC 132-2-18.5-5(l) cannot, therefore, be applied to this action because no housing development of five lots or more is part of the proposed permit.
18. IC 13-218.5-5(2) requires that the applicant must dedicate to the public any waters created by connecting a channel to a navigable river or stream.
19. The permit, as approved by the Commission, lists eight conditions upon which its approval is based. One such condition requires "the waters of the channel and boat basin be dedicated to the general public use and be recorded with the LaPorte County Recorder." Consequently, the permit issued to South Lake Marina is in compliance with the requirements set forth in IC 13-2-18.5-5(2).
20. Claimants also contend that social, human and environmental implications have not been duly considered.
21. IC 13-2-18.5-6 states as follows: The commission shall issue an order of authorization if in the opinion of the commission such channel and the facility or facilities which it is to serve will not constitute an unreasonable hazard to life and property, nor result in undue effects upon the water levels of the river or stream or upon fish and wildlife resources, nor adversely affect the public health, safety and welfare.
22. Testimony presented at the hearing showed that the area to be excavated for the channel construction and inland marina is vacant land. Furthermore, the evidence submitted during the application process and at the hearing revealed no plan by South Lake Marina to construct a housing development or impede in any way on the Canada Neighborhood.[FOOTNOTE 2]
23. No evidence has been submitted which demonstrates South Lake Marina will create unduly harmful affects upon the water levels of fish and wildlife resources.
24. At the hearing, Edwin Mazarek, project engineer for South Lake Marina, testified that soil tests and other tests and reports concerning effects of pollution had been made and submitted to the Department and the Army Corps of Engineers during the application process. Mr. Mazarek further testified that since those reports were submitted, he has never been advised by any state or federal agency that the proposed project poses any threat to life, property or fish and wildlife resources.
25. Claimants have failed to demonstrate that South Lake Marina has not acted in accordance with the requirement set forth in IC 13-2-18.5-6.
26. IC 13-2-22 is the Flood Control Act. Section 13(d) of this act requires that the cumulative effects of any construction in the floodway shall be considered by the Commission prior to approving any permit. Claimants maintain that no such consideration was made by the Commission.
27. IC 13-2-22-13(d) became effective on July 7, 1988. Prior to that time, the cumulative effects of construction within a floodway was not a mandatory consideration of the Commission.
28. The permit first went before the Advisory Council on March 23, 1988 and then before the Commission on May 19, 1988, where it was finally approved. At that point in time, IC 13-2-22-13(d), as it now reads, had not yet become effective.
29. Claimants cannot now claim the Commission failed to act in accordance with a statute that was not, at the time the permit was approved, yet effective. Nor was any evidence produced by Claimants that would demonstrate the possibility that the cumulative effects of the marina project could be detrimental to Trail Creek.
30. Claimants question whether the "human factor" has been given adequate consideration by the Commission in its decision approving South Lake Marina permit.
31. The Commission's authority is limited to only that which it has control over; in this case construction of a channel within a floodway. In approving the permit, the Commission has not attempted to make light of Claimants' concerns. However, it lacks the jurisdiction to adequately address or rectify Claimants' questions. Those questions are best left to be dealt with on the local level.[FOOTNOTE 3]
FOOTNOTES
1. In actuality, the application submitted by South Lake Marina only covered Phase I. The report submitted to the Advisory Council referring to phases I an II was in error and the Commission's action corrected that error.
[VOLUME 5, PAGE 38]
2. Undoubtedly, the residents of the Canada Neighborhood largely believe that eventually South Lake Marina plans to establish some type of housing development at the marina which will eventually destroy their neighborhood and homes. It must be noted, however, that the scope of this administrative review pertains only to Phase 1, the construction of an entrance to the marina. No evidence has been offered, much less proven, that South Lake Marina intends to do anything else under the permit issued by the Commission. If in fact South Lake Marina ever does decide to construct some type of housing development it must, once again, go through the entire permitting procedure at which point anyone opposed to such a plan may object. It cannot be stated too strongly that the scope of this administrative review is limited to the propriety of issuing to South Lake Marina a permit to allow it to proceed with its Phase I construction suggestion and innuendo that South Lake Marina intends to do anything else under the scope of the permit is merely hearsay.
3. Before South Lake Marina's permit application reached the Department for consideration, it had gone through a long review process (of which Claimants were actively involved) on the local level. Local authorities, including the Michigan City Planning Commission, the Michigan City Common Council and the Michigan City Port Authority, all gave the project their approval.