CADDNAR


[CITE: Goff v. DNR, 5 CADDNAR 163 (1990)]

 

[VOLUME 5, PAGE 163]

 

Cause #: 90-156W

Caption: Goff v. DNR
Administrative Law Judge: Lucas
Attorneys: pro se (Goff); McInerny, DAG
Date: December 26, 1990

ORDER:

 

A final agency determination is made to deny application R-11,382 by Carl L. Goff to place fill along Spring Creek in Whitley County, Indiana.

FINDINGS OF FACT

 

1. On February 13, 1989, Carl L. Goff ("Goff") made a written application for the placement of "fill" for a "future residence" in the floodway of Spring Creek, Docket R-11,382, in Cleveland Township, Whitley County (the "application").

 

2. The application seeks authorization under the "Flood Control Act of 1945" (IC 13-2-22) to place fill along the left (east) bank of the creek. The fill would extend along his property from State Road 205 approximately 300 feet southeast and from Spring Creek approximately 400 feet east. The fill would have a maximum depth of approximately seven (7) feet near the center of the site and an average depth of approximately five (5) feet. About 6,100 cubic yards of fill are proposed.[FOOTNOTE i]

 

3. Present elevations over most of the site for which the application was made range from 794.0 to 796.0 feet, N.G.V.D.

 

4. Based upon detailed calculations by the department of natural resources (the "Department"), the regulatory flood would reach an elevation of 798.7 feet, N.G.V.D., at the downstream end of the site sloping uniformly to 799.1 feet, N.G.V.D., at the upstream end of the site. These calculations are not disputed by Goff.

 

5. The proposed fill is located within the "floodway" of Spring Creek as determined by the "regulatory flood". The "floodway" is the channel of a "stream and those portions of the flood plains adjoining the channel which are reasonably required to efficiently carry and discharge the peak flood flow of the regulatory flood." The "regulatory flood" is "that flood having a peak discharge which can be expected to be equaled or exceeded on the average of once in a one hundred (100) year period .... This flood is equivalent to a flood having a probability of occurrence of one percent (1%) in any given year." 310 IAC 6-1-3.

 

6. The Department has jurisdiction over the subject of this proceeding under IC 13-2-22, 310 IAC 6-1, IC 4-21.5, and 310 IAC 0.6-1.

 

7. The natural resources commission (the "Commission") is the "ultimate authority" for the Department under IC 14-3-3-21(a).

 

8. Goff took administrative review in a timely fashion of an initial determination by the Department to deny the application. The Commission has jurisdiction over the subject matter and over the parties to this proceeding.

 

9. Computer modeling of the floodway fill project described in the application indicates the project would raise flood stages during the regulatory flood at least 0.21 of a foot. The maximum predicted increase in flood stages occurred at the farthest upstream point for which data was available, suggesting a possibility that the increase would be greater than 0.21 of a foot further upstream. No evidence was presented to refute the accuracy of the modeling results.

 

10. IC 13-2-22-13(b) provides that it "is unlawful to ... make ... any ... deposit ... in or on any floodway ... which will adversely affect the efficiency of or unduly restrict the capacity of the floodway."

 

11. The Department uses .10 of a foot as the maximum increase in flood stages which can be approved for a project permitted under IC 13-2-22 and 310 IAC 6-1 without adversely affecting the efficiency or unduly restricting the capacity of a floodway. Goff does not contest the propriety of the .10 foot maximum allowable increase.

 

12. The fill project described in the application would cause an increase in flood stages which is

 

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more than double what is approved by the Department as the maximum tolerable increase. The application was properly denied by the Department under IC 13-2-22 and 310 IAC 6-1.[FOOTNOTE ii]

FOOTNOTES

i. Goff testified that he purchased the property at issue with the understanding the site would be suitable for residential construction. If inaccurate representations were made to him by the seller as to suitability of the real estate, the claim must properly be directed to the seller in a private civil proceeding. Also to be noted is, that while the application acknowledges a desire for future residential construction, the application seeks only present approval for the placement of fill. The Department has stated that approval for residential construction cannot be lawfully granted in the floodway of spring Creek. Whatever the legal propriety of constructing a residence on the site, however, that issue is not now ripe for review.

ii. Testimony at hearing indicated that a portion of the property owned by Goff is outside the floodway of Spring Creek. He may place fill in the portion of his property located outside the floodway without the need for a permit under IC 13-2-22 and 310 IAC 6-1. Also, another plan for fill within the floodway can be approved if the fill does not raise flood stages by more than .10 foot. The denial of the application leaves open to Goff these alternative possibilities.