The claimant's administrative appeal of conditions 2 and 4 of permit G-11,190 is denied and summary judgment is granted in favor of the Department. Summary judgment in favor of the claimant with respect to Condition 3 of permit G-11,190 is granted and that condition is stricken from the permit. No final order is issued on the claimant's appeal from Condition 12 of permit G-11,190 pending a hearing on the merits.
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 with respect to requests for administrative review from DNR decisions on permits.
3. Pursuant to IC 13-2-22-13, a DNR permit is required before placing fill in a floodway or beginning construction in a floodway.
4. IC 13-2 (Flood Control Act) and IC 4-21.5 apply to these proceedings.
5. The claimant owns a tract of land in Hancock county which has been subdivided into building lots and is known as Hickory Hills Subdivision. (Exhibit 2)
6. Part of the subdivision borders on Brandywine Creek.
7. The claimant filed application number G-11,190 with the DNR Division of Water requesting a permit to construct in a floodway.
8. Part of the permit application requested permission to remove material in the floodway for the purpose of constructing a lake.
9. The proposed location of deposit of part of the removed material is in the floodway of Brandywine Creek ("floodway") in a roadway area placed there for the purpose of building up a cul-de-sac area. (Exhibit 1 and 2).
10. The rest of the fill was to be placed on lot 46 in order to increase the elevation so that a house could be constructed on lot 46.
11. The engineer's drawing (Exhibit 2) attached to the permit application shows more than 80% of lot 46 behind the set-back line to be in the floodway.
12. On August 6, 1990, the DOW approved permit number G-11,190 subject to 12 conditions including condition (2) which stated "no residence or fill for a residence be placed in the floodway on lot 46".
13. A residence otherwise conforming to set-back and other covenant restrictions cannot be built on lot 46 without being built in the floodway or being built on fill which has been placed in the floodway.
14. The creation of the lake and the use of the fill to build up road beds and the cul-de-sac were approved.
15. The claimant filed a timely request for review of conditions 2, 3, 4, and 12 after receiving the notice of approval.
16. Conditions 3 states "plans for any other project proposed for lot 46 be submitted to the Division of Water prior to construction".
17. Condition 4 states "all material excavated from the pond and not used in the proposed fill be placed landward of the floodway."
18. Condition 12 states that "no fill to be placed in areas growing trees."
19. While conditions 2, 3, 4 and 12 are all under review, it is clear from the prehearing and status conferences and pleadings filed in this matter that the issue of overwhelming importance to both parties in this case is the status of lot 46.
20. IC 4 4-21.5-3-23 allows the granting of summary judgment in favor of any party when no genuine issue exists as to any material fact and a party is entitled to judgment as a matter of law.
21. IC 13-2-22-13(a) states "It is unlawful to erect, use, or maintain in or on any floodway a permanent structure for use as an abode or place of residence.
22. As pointed out in the Department's reply brief, the NRC has consistently interpreted this statute to prohibit fill in a floodway where the sole purpose of the fill is to raise the level of the land so that a residence can be constructed.
23. The recent case of DNR v. Porter County Drainage Board (Ind. 1990), 555 N.E.2d 1387, clearly enunciates the principle
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that the DNR interpretation of the statutes the DNR is charged to enforce is entitled to great weight.
24. The DNR interpretation of IC 13-2-22-13(a) prohibiting the placement of fill in a floodway in order to build a residence is a reasonable interpretation designed to implement the intent of the statute.
25. Accordingly, Condition 2 attached to permit G-11,190 prohibiting fill on lot 46 for the purpose of constructing a residence is a legal and lawful condition.
26. Condition 3 attached to permit G-11,190 exceeds the regulatory authority of the DNR.
27. Condition 3 required Yater to submit plans for any other project proposed for lot 46 to the DNR prior to construction.
28. Yater is under no legal obligation to seek DNR approval of any projected use of lot 46 as long as the project does not involve filling or constructing in the floodway.
29. Yater has a legal obligation to submit another permit application for any proposed use which affect the floodway since G-11,190 was denied with respect to Lot 46.
30. Condition 4 requires that all material extracted from the pond be placed in the cul-de-sac area or landward of the floodway.
31. Condition 4 is merely a restatement of the Flood Control Act and summarizes the legal requirement that fill may be placed in a floodway only where the permit allows and otherwise must be placed outside the floodway.
32. Condition 4 is a legal and lawful condition of permit G-11,190.
33. Condition 12 is fact sensitive and cannot be decided by summary judgment.
34. Despite the fact that the entire permit appeal cannot be decided by summary judgment prior to a hearing, since all matters dealing with lot 46 can be so decided, it is in the best interests of all parties to separate out Condition 12 for hearing and enter a final order on that portion of the administrative review dealing with lot 46.
35. Yater relies in part on an engineering study showing that the completion of a proposed county bridge will change the floodway line on the map.
36. The contention in paragraph 35 may well be true, but the DNR decision must be based on current conditions. If after the bridge construction is completed, the claimant provides engineering plans showing an altered floodway, it may change the current situation. Until that happens, lot 46 is mostly in the floodway.