Permit Number G-13,844/DR-212 is approved with all conditions included in the approval of the application.
FINDINGS OF FACT
1. On December 30, 1991, the noble County Drainage Board (NCDB) filed a request for review of Condition #1 (C1) placed on permit number G-13,844/DR-212 (the "Permit").
2. C1 reads as follows: "no work is to be performed between stations 11+70 and 18+00 (immediately downstream of Sherman Street)."
3. A prehearing conference was held on April 8, 1992.
4. On May 4, 1992, the City of Kendallville (the "City") was granted claimant intervenor status.
5. The Department of Natural Resources (the "Department") is an agency as defined in IC 4-21.5-1-3.
6. As defined in IC 4-21.5-1-15, "ultimate authority" means the individual or panel in whom the final authority of an agency is vested.
7. The Natural Resources Commission (the "Commission") is the ultimate authority for this proceeding.
8. NCDB was issued the permit on December 9, 1991.
9. C1 to the permit precluded the NCDB from dredging a portion of Lash Ditch downstream of Sherman Street in Kendallville.
10. The NCDB desires that C1 be removed from the permit and maintains that the precluded dredging is vital to alleviate flooding in the area.
11. The Division of Fish and Wildlife (DFW) of the Department ordered C1 be placed on the permit because it maintains the dredging would have a detrimental effect on fish, wildlife and botanical resources.
12. The issuance of the permit is governed by Indiana Code IC 13-2-22 which is titled the Flood Control Act (the "Act").
13. The applicable portion of the Act is Section 13.
14. Subparagraph (d) of Section 13 of the Act reads in part: "(d) Any person desiring to: . . . . (b) Suffer or permit a structure, obstruction, deposit, or excavation to be erected, made, used, or maintained; or . . . . . in or on any floodway shall first file with the commission a verified written application for a permit . . . . the commission shall issue a permit only if in the opinion of the commission the applicant has clearly proven that such structure, obstruction, deposit, or excavation . . . will not result in unreasonably detrimental effects upon fish, wildlife, or botanical resources. . . ."
15. The NCDB and the city present two arguments against C1 in regard to subparagraph (d) of the Act.
16. Argument one is that the dredging will not result in a detrimental effect on fish, wildlife, and botanical resources.
17. Argument two holds that if such an effect is found it would not be unreasonably detrimental because the flooding of homes in the city, which would be eliminated by dredging, has a far greater impact than the detrimental effect caused.
18. The argument that no detrimental effect will occur is not persuasive.
19. Expert testimony as well as common sense clearly show that if Lash Ditch is dredge the carrying capacity will be increased as will the velocity of the water flowing to Bixler Lake (into which Lash Ditch flows).
20. At present, due to the silt in the ditch, much of the flow of water is unchannelized, thereby creating a "spider web" like area of wetland.
21. Logically, the dredging would cause at least two detrimental effects: a shrinkage of the wetland area and an increase in sediment flowing into Bixler Lake.
22. Either of these effects can be classified as detrimental to fish, wildlife, and botanical resources.
23. However, it is another matter as to whether these detrimental effects are unreasonable when viewed in terms of the flooding city residents presently endure.
24. If the dredging was the only way to alleviate the flooding, then the detrimental effects may very well be classified as "reasonable" under the circumstances.
25. However, Peggy Shepperd, a professional engineer with the Department, testified that the culverts under the bridges across Lash Ditch do far more to contribute to the flooding than the sediment in question.
26. Her uncontroverted testimony was that reconstruction of the bridge culverts would have twice as much impact on the flooding than would the
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dredging.
27. Clearly, the NCDB and the city has an option available that would alleviate the flooding with little or no detrimental impact on the wetlands or the lake.
28. Accordingly, the detrimental effect on fish, wildlife, and botanical resources which would be caused by the dredging must be classified as unreasonable.
29. The NCDB, in its post hearing brief, mentions for the first time IC 36-9-27-46 which places a requirement on a county surveyor to immediately remove an obstruction from a regulated drain.
30. That requirement does seem to clash somewhat with C1 to the permit.
31. However, in reading the Act, it is apparent that the Department has primary jurisdiction over all floodways in Indiana. See 13-2-22-2 legislative declaration.
32. In fact the Act does mention IC 36-9-27 (See section 13(d)(1) and (2)) by exempting from the permitting process reconstruction and maintenance projects (as defined in IC 36-9-27) on a stream or a regulated drain in an agricultural (or rural) area[FOOTNOTE 1] . . . .
33. Since this project is in the City of Kendallville, it could hardly fall under the above exception, and therefore, a permit from the Department must be obtained.
FOOTNOTE
1. The Commission has given preliminary adoption to 310 IAC 6-1-3(21) which, for this purpose, defines a rural area as: ". . . where the area lies outside:
(i) the corporate boundaries of a consolidated city or an incorporated city or town; and
(ii) the territorial authority for comprehensive planning established under IC 36-7-4-205(b)."