The decision of the Department of Natural Resources to approve Floodway Construction Permit Applications G-13,593 and G-13,525, with conditions, is affirmed.
FINDINGS OF FACT
1. The Indiana Department of Natural Resources ("DNR") is an agency within the meaning of IC 4-21.5.
2. The DNR, acting by and through the Division of Water ("DOW") is the state agency responsible for initially approving or denying permits for construction in a floodway.
3. IC 4-21.5 and IC 13-2 apply to these proceedings.
4. The Natural Resources Commission ("NRC") is the ultimate authority within the meaning of IC 4-21.5 with respect to matters involving floodway construction permits.
5. In April of 1991, Harry and Rebecca Gunn ("Gunn") filed two permit applications for construction in the floodway of Eagle Creek in Boone County, Indiana.
6. On March 2, 1992, DOW issued two Certificates of Approval of Construction in a Floodway. One permit (G-13,593) granted permission to place fill in the floodway on the west bank of the stream. The other permit (G-13,525) granted permission to excavate in order to create a pond within the floodway.
7. Both permits were issued with a number of conditions, none of which have been objected to by Gunn.
8. The boundary of the floodway used by the DNR is the one delineated on the FEMA flood study map of Zionsville.
9. Floodway construction is governed by IC 13-2-2213.
10. IC 13-2-22-13 sets forth three criteria which must be met in order for the NRC to approve a permit to construct in a floodway. They are:
(a) The project does not unduly restrict the capacity of the floodway.
(b) The project does not endanger persons or property.
(c) The project is not an unreasonable hazard to fish, wildlife, and botanical resources.
11. The proposed construction does not adversely impact fish, wildlife, and botanical resources and in fact, once the conditions of the permits are satisfied, the pond will likely provide quality wildlife habitat.
12. The primary complaint of the neighbors deals with the possible increase in flood levels; and thus is somewhat dangerous to persons and property.
13. The area in question has a history of flooding problems.
14. The creation of a pond has no effect on the capacity of a floodway.
15. The engineering plans which were submitted with the applications show a cross section of the floodway that will be approximately 4% impaired at the point where the pole barn is to be constructed. No other area on the permittee's property in the floodway will be affected except this one small area.
16. DOW calculations show this construction will result in an increase in flood stages of less than .1 inch, the standard used by DOW to determine whether or not a floodway is unduly restricted.
17. No expert testimony was presented to contradict this finding of the Department, and no testimony was presented concerning whether or not .1 inch was an appropriate standard.
18. The plans which were submitted with the application are part of the permit and failure to construct the project in accordance with the plans is a violation of the terms of the permit.
19. Accordingly, the permit application satisfied the requirements of IC 13-2-22-13, and was properly approved.