[CITE: Michigan City Historical Society v. DNR and Francik,
5 CADDNAR 169 (1990)]
[VOLUME 5 PAGE 169]
Cause #: 90-148W
Caption: Michigan City
Historical Society v. DNR and Francik
Administrative Law Judge: Teeguarden
Attorneys: Braje; Cloyd,
DAG; Laurin
Date: December 26, 1990
ORDER
The
decision of the Delegates of the Natural Resources Commission to approve permit
application G-12,161 allowing the construction of seventeen boat slips and a
small boat launch in the floodway of Trail Creek by Albert Francik
is affirmed.
FINDINGS OF FACT
1.
The Department of Natural Resources (DNR) is an agency within the meaning of IC
4-21.5.
2.
The Natural Resources Commission (NRC) is the ultimate authority within the
meaning of IC 4-21.5 over all administrative appeals of DNR actions.
3.
IC 4-21.5 and IC 13-2 apply to these proceedings.
4.
In February of 1990, Albert Francik filed permit
application G-12,161 for construction in the floodway of Trail Creek.
5.
The purpose of this application was to construct nine piers, seventeen boat
slips, and a small boat launch on Trail Creek in Michigan City, Indiana, as
part of a twenty-five unit condominium project.
6.
On April 18, 1990, the NRC delegates Gary Doxtater and Joseph Siener approved the issuance of the permit with four
conditions as recommended by DNR staff.
7.
On May 11, 1990, the Michigan City Historical Society, Inc. (MCHS) filed a
request for administrative review of the decision to issue Permit G-12,161
because of the failure of the DNR to consider the effect of the project on the
lighthouse and adjoining structures which are on the National Historic
Register.
8.
Both the DNR Division of Historic Preservation, and DNR, Pat Ralston acting as
the State Historic Preservation Officer (SHPO), voiced serious concerns about
the project because of the effect a five story condominium project would have
on the historic site.
9.
This project also requires a permit from the Army Corps of Engineers.
10.
On June 4, 1990, after receipt of a letter from the SHPO, the Corps suspended
the Army permit given to the permittee pending an
investigation into the project with respect to the National Historic
Preservation Act.
11.
Both the Corps permit and the DNR permit are needed to commence construction on
the boat slips.[FOOTNOTE 1]
12.
The granting of a DNR permit to construct in a floodway does not override a
Corps decision on a permit. The granting of a Corps permit does not mandate the
DNR to grant a permit. Both agencies are required to examine applications under
the regulatory criteria which apply to that particular agency and make
independent decisions.
13.
16 U.S.C.A. sec. 470f requires the head of any federal agency having the
authority to license an undertaking to take into account the effect of the
project on any site or building which is included in the Natural Register or
eligible for inclusion.
14.
In this particular case, the Corps is that agency obligated to make such an
investigation.
15.
The NRC and DNR are not federal agencies, and thus not governed by section
470f.
16.
The DNR and NRC have no jurisdiction as to whether or not a five story
condominium should be built on the property in question. Their only
jurisdiction in this matter deals with whether or not construction of seventeen
boat slips should be allowed in the floodway of Trail Creek.
17.
Floodway construction is governed in part by IC 13-2-22-13.
18.
A state agency has only those powers and duties given to it by the legislature.
19.
IC 13-2-22-13(d) states that any person desiring to erect a structure in any
floodway shall file with the NRC for a permit. The NRC may issue a permit only
if:
(1) the structure will not restrict the capacity of the
floodway, or
(2) will not constitute an unreasonable hazard to the safety of
life or property, or
(3) will not result in unreasonably detrimental effects upon fish,
wildlife, or
[VOLUME 5, PAGE 170]
botanical resources.
20.
The Division of Water collected information from seven DNR divisions dealing
with the criteria listed in paragraph 19.
21.
The Division of Law Enforcement found this project (the boat slips in Trail
Creek) would not impede navigation; and there was no risk to life or property.
22.
The Division of Fish and Wildlife stated that any loss of fish, wildlife or
botanical resources would be minimal and reasonable as long as appropriate revegetation was promptly performed, and that no inchannel work done in certain time periods to protect salmonid fish. Both comments were incorporated into the
permit as conditions 2, 3, and 4.
23.
The Division of Forestry approved the plan.
24.
The Division of Nature Preserves stated this project would not affect natural
area.
25.
The Division of Outdoor Recreation stated no component of the Natural and
Scenic Rivers system or Conservation Fund projects would be affected.
26.
The Division of Soil Conservation was concerned about minimizing erosion and
prompt revegetation- matters which were addressed in
the conditions added to the permit.
27.
The Division of Water found that even in conjunction with previously approved
projects in the Trail Creek floodway, the proposed construction would not
significantly increase flood stages.
28.
To summarize, specific findings were made that the project would not unduly
restrict the capacity of nor adversely affect the efficiency of the floodway,
would not constitute an unreasonable hazard to the safety of life or property,
and would not result in unreasonably detrimental effects upon fish, wildlife,
or botanical resources.
29.
MCHS has not contested any of these findings. The only issue raised by MCHS is
the issue involving historical preservation.
30.
Historic Preservation is not a criteria on which the
DNR or NRC may rely in deciding to grant or deny a floodway construction
permit.
31.
Historic Preservation is a criteria on which the Corps
of Engineers may rely in making such a decision.
32.
The documents submitted with the legal arguments by the parties show no dispute
of material facts. Summary judgment is appropriate in this matter.
33.
The Indiana State Legislature has specified the area to be examined and
findings that must be made to grant or deny a floodway construction permit. The
DNR examined those areas and made appropriate findings. No opposition to those
findings has been voiced by MCHS.
34.
The DNR cannot deny a floodway construction permit solely on historical
preservation grounds.
35.
If the DNR is concerned about the effect of a construction project of this type
on historic sites and buildings, its responsibility is to notify the Corps of
its concern. The SHPO did so notify the Army Corps of Engineers in this case.
The Department of the Army is the appropriate agency to deal with this matter.
36.
Accordingly, the decision approving permit application G-12,161 is affirmed.
FOOTNOTE:
1. Likewise, any local construction or
zoning permits are also needed.