The Intervenor's Motion for Summary Judgment is granted. Floodway construction permit number T-11,206 is hereby approved.
FINDINGS OF FACT
1. On April 20, 1989, St. John Save Our Streams Committee (SOS) filed a request for appeal dated April 13, 1989, challenging the approval of permit number T-11,206 by the Water and Mineral Advisory Council of the Department of Natural Resources (Department).
2. Approval of T11,206 was obtained at the Advisory Council meeting of March 23, 1989.
3. Notice of Council approval was mailed March 28, 1989.
4. IC 4-21.5, and IC 13-2, 310 IAC 0.5 and 310 IAC 6 apply to this case.
5. Mercantile National Bank (Bank), as Trustee, was the ultimate recipient of the permit in question.
6. The Department is an agency as defined in IC 4-21.5-1-3. Since a permit is involved, the Natural Resources Commission (Commission) is the ultimate authority for the Department in this proceeding.
7. The Permit in question allows a developer to build a storm water outfall structure (to wit; a 30 inch diameter concrete pipe) along the north bank of Bull Run Ditch subject to several conditions including proper protection from erosion during the construction period and appropriate revegetation after completion. Subject to these conditions, the Department concluded that no flow area would be lost, the floodway would not be unduly restricted or adversely affected, there would not be an unreasonable hazard to the safety of life or property, and there would be no detrimental effects upon fish, wildlife, or botanical resources in the floodway in question. All parties involved reside in Lake County and the construction project is in Lake County.
8. A major part of SOS's reasons for appeal deal with an alleged violation of a Memorandum of Understanding between the DNR and the Lake County Drainage Board.
9. IC 13-2-22-13(c) requires the contractor to obtain Department approval of any construction in a floodway no matter how slight it may be or how many other permits or approvals may be necessary.
10. Since the contractor is required to obtain this permit, the Department has not violated any Memorandum of Understanding it may have entered into with local authorities.
11. Department approval does not override any local permit requirements.
12. 310 IAC 6-1-4 states that a local unit of government may not approve a plan involving construction in a floodway until the Department has approved same.
13. 310 IAC 6-1-13 specifically permits local units of government to require their own permits for floodway construction as long as the terms are not less restrictive than those imposed by the Department.
14. Department approval of the outfall structure does not prevent the Lake County Drainage Board from taking any appropriate action.
15. The rest of SOS's reasons for appeal deal with the effect on wetlands not within the floodway for which construction was approved.
16. The Department does not have general jurisdiction over wetlands. Unless the wetlands are owned by the State of Indiana, are part of the floodway where the proposed construction will take place, or on property involved in coal mining or oil and gas exploration, the Department is without jurisdiction.
17. The U.S. Army Corps of Engineers has jurisdiction over wetlands in Indiana. It may very well be that Bank needs a permit from the Corps as well as the Department and the Lake County Drainage Board to completely construction of the outfall from start to finish. At any rate,
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this is not a matter appealable to the Department. See 33 CFR 320.4(b) for wetland considerations in Department of Army permits.
18. At the prehearing conference, there appeared to be some confusion as to the scope of the permit in question.
19. The Department's permit only means that the Department's technical staff has concluded the physical act of placing this pipe in the floodway in question will not cause any problems in that particular floodway as long as the vegetation and foliage are replaced and no debris is left in the floodway.
20. This permit does not purport to and is not intended to approve the overall drainage plan for the subdivision or its effect on wetlands.
21. The one other issue raised by SOS on appeal deals with possible recharge problems of ground water if the drainage plan is approved.
22. That particular issue is clearly within the province of the local authorities and has nothing to do with whether or not construction of the outfall structure in this floodway causes impermissible problems with this floodway. The Department action is not an approval of the entire drainage project.
23. Accordingly, all issues raised on appeal by SOS are issues over which the Department has no jurisdiction and cannot be grounds for reconsideration or denial of the permit. The request for review filed by SOS fails to state a claim for which relief can be granted.
24. The Bank raises several other issues in its Motion to Dismiss and Motion for Summary Judgment--two of which need to be addressed.
25. The Bank contends SOS is not a proper party to bring an appeal under IC 4-21.5-3-7(a).
26. SOS is a part of the Izaak Walton League, a public interest conservation-oriented organization.
27. As such, SOS is entitled to bring an appeal of agency action under IC 4-21.5-3-7 as an affected person concerned about the environment as long as the appeal involves issues over which the Department has jurisdiction. See National Wildlife Federation v. Hodel (1988) 839 F.2d 694, 704 (DC Cir) and cases cited therein. See also IC 13-6-1-1 which specifically allows environmental associations to intervene in license cases where granting the license may have the effect of destroying the environment.
28. The Bank contends that SOS did not file within the appropriate time limits of IC 4-21.5.
29. IC 4-21.5-3-7 states that a petition for administrative review must be filed within 15 days after the person is given notice of the order.
30. SOS clearly did not file such a request within 15 days of the mailing of the notice of permit approval which was mailed March 28, 1989.
31. The notice of approval was mailed to a number of persons or organizations but SOS was not one of them. (See John Simpson's letter of March 28, 1989, attached to Bank's Memorandum in Support of Summary Judgment.)
32. SOS mailed its appeal on April 14, 1989, and it was first received by the department on April 17, 1989.
33. On its face, it appears that SOS failed to file a timely appeal, but such a conclusion ignores the fact that SOS was not given actual notice.
34. The issue then becomes whether or not SOS knew or should have known of the agency action more than 15 days before filing the appeal.
35. Nothing in the evidence submitted by the Bank indicates that SOS knew or should have known of the issuance of the permit.
36. The affidavit filed by the Bank does not indicate any effort to publicize or post the notice of application for this permit in Lake County.
37. The Advisory Council hearing on this matter was held in Indianapolis, thus no general notice was posted or published in Lake County.
38. No general notice of approval of the permit was published or posted in Lake County.
39. Absent any evidence to the contrary, the administrative law judge must conclude that SOS acted promptly upon obtaining knowledge of the permit.
40. Therefore, SOS's right to appeal the issuance of floodway construction permit T-11,206 has not been waived.