[NOTE: THIS CASE WAS TAKEN ON JUDICIAL REVIEW TO THE MARION SUPERIOR COURT, CAUSE NO. 49DO79403-MI-0302, FOLLOWING AN NRC REVERSAL OF THE ALJ. THE DECISION BELOW WAS RENDERED BY THE NRC FOLLOWING REMAND AND ESSENTIALLY REINSTATED THE NRC DECISION. THE FINAL ORDER IMMEDIATELY FOLLOWS THE FINDINGS OF FACT.]
Floodway Permit application number R-15,114 is hereby approved subject to the following conditions:
(1) No fill will be placed in the floodway of White Lick creek except as authorized by floodway construction permit G-4449, as amended.
(2) All construction shall be performed in such a manner so as to conform to the standards set forth in 310 IAC 6-1.
FINDINGS OF FACT
1. The Indiana Department of Natural Resources ("DNR") is an agency within the meaning of IC 4-21.5.
2. IC 4-21.5, IC 13-2, and 310 IAC 6 apply to these proceedings.
3. The Natural Resources Commission ("NRC") is the ultimate authority within the meaning of IC 4-21.5 in this matter.
4. The DNR is the state agency charged with the responsibility of regulating floodways in Indiana.
5. Jim Welch ("Welch") is the owner of real property in the southeast quarter of Section 23, Township 14 North, Range 1 East, in Hendricks County, Indiana.
6. This property includes an area which is in the floodway of White Lick Creek.
7. A prior lessee of this property applied for and received floodway construction permit G-4449 ("1975 permit") from the DNR in October of 1975.
8. The 1975 permit was issued for the purpose of allowing an aggregate operation to mine in the vicinity of the floodway.
9. The 1975 permit, among other things, allowed the company to place fill in an area extending 150 feet along the east and south sides of the property.
10. The fill was designed to raise the elevation of this strip to approximately three feet above the l00 year frequency flood elevation.
11. The DNR evaluated site specific historic data in finding that the floodway elevations were in this area were between 680 and 681 feet.
12. A DNR engineering report dated November 22, 1978, reiterates the DNR position that the l00 year frequency flood would reach an elevation of 680.0 to 681.0 feet.
13. The sand and gravel operation mined the area during the late 1970s and early 1980s pursuant to the 1975 permit.
14. The sand and gravel mining operation completed work in 1984.
15. The 1975 permit included" condition 3" which stated "when the fill area is to be developed, plans and specifications will be approved by the Natural Resources Commission before construction."
16. Welch purchased the property in question in 1985 and shortly thereafter, completed a residential development on the fill along SR 267 on the east edge of the property ("Phase I"), apparently with no problems from DNR or condition 3.
17. In 1975, the original 310 IAC 6-1 was in effect and 310 IAC 6-1-11 provided that residence could be built in a floodway fringe as long as there was a flood protection grade at least two feet above the regulatory flood profile.
18. The apparent reasons for the attachment of condition 3 to the 1975 permit are to ensure the fill was successfully placed in order to make sure any building constructed on the site was at least two feet out of the floodway and that no residence was constructed in such a way that some portion of it was in the floodway, in violation of IC 13-2-22-13.
19. 310 IAC 6-1 was un-amended from it enactment in 1974 until early 1989, long after Welch acquired the property and began his construction project.
20. Pursuant to condition 3 of the 1975 permit, in 1992 Welch sought approval from the DNR to complete the residential development for Phase II.
21. After some correspondence, and a re-submission, on March 9, 1993, the DNR denied the construction plans (R-15,114) for two reasons. The first reason related to a new calculation of the floodway elevation based on a straight line engineering practice in the vicinity of bridges. The second reason dealt with a March 1988
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resolution of the NRC which announced a policy of treating the placement of fill in a floodway for the purpose of constructing a residence out of the floodway the same as constructing the residence in the floodway.
22. The "no residence in fill" resolution was the culmination of what was obviously a lengthy debate inside the DNR and was alluded to in writing as early as 1983 in a document entitled "Discussion of Provisions Relating to Floodways."
23. Welch submitted a motion for summary judgment on June 30, 1993, complete with numerous exhibits of maps, applications, DNR documents, and affidavits.
24. The only response filed by the Department deals with challenges to the credibility of a former DNR employee who signed affidavits on behalf of Welch.
25. Nothing submitted by the DNR rebuts any fact alleged by Welch except those put forth in the former employee's affidavit and even then, the DNR submitted no exhibits or counter affidavits contradicting any factual statement by the ex-employee.
26. As to the matter of the former amployee's credibility, resolution of this matter does not depend on whether he is a saint or the devil incarnate.
27. Recent Indiana cases have made it clear that the parties have a duty to designate those parts of the record which support their arguments. Not only is the court not required to search the record in order to make a decision, the court appears to be prohibited from doing so. See Rosi v. Business Furniture Corp., 615 N.B.2d 431, (Ind. 1993) and Jackson v. Blanchard, 601 N.E.2d 411, (Ind. Court Appeal 1992).[FOOTNOTE 1]
28. Based on the record presented by the parties in this case, the following facts must be found to be true:
a. The 1975 permit encouraged fill in the floodway to allow for further development of the site.
b. The DNR concluded on several occasions that site specific data placed the floodway at an elevation between 680.0 and 681.0 feet along the project site.
c. Prior to March of 1988, the DNR (or NRC) allowed fill to be placed in the floodway in order to allow homes to be constructed outside of the floodway and specifically allowed Phase I to be completed in or around 1985.
d. The March 1988 resolution of the NRC was not adopted via the rule making process in IC 4-22, and thus, did not allow for the type of public comment and criticism that would be found in a rule-making proceeding.
e. The DNR revised its approach to the designation of a floodway near a bridge at an unknown time, but the new method used in 1992 was not based on historical site specific data and was applied in such a way so as not to give affected parties any notice that major changes in floodway designation were in the works. Again, the rule making procedure involving notice and encouraging public comment and participation was not utilized.
f. No evidence was presented by the DNR as to whether or not the "straight-line method" used in 1992 to change the floodway near the bridge is consistent with the definition of the word "floodway" as defined by the Indiana State Legislature in IC 13 -2-22-3. While a number of Federal Agencies may like to see "floodway" defined differently, the DNR and NRC are required to follow the definition as enacted by the legislature.
29. Welch also raises a "retroactivity" argument, unrebutted by the DNR, which has merit. Welch has been actively developing this site as a residential development since 1984 or 1985. Retroactively applying the March 1988 resolution of the NRC would appear to violate the court's decision in Indiana Department of Environmental Management v. Chemical Waste Management of Indiana, Inc., 605 N.E.2d 1199 (Ind. App. 1992), and in Advisory Board of zoning Appeals v. Foundation for Comprehensive Mental Health, Inc., 497 N.E.2d 1089, (Ind. App. 1986).
30. The exhibits and briefs submitted by the parties thus indicate that Welch is entitled to summary judgment, at least in part, pursuant to IC 4-21.5-3-23.
FOOTNOTE
1. The recent case of Indiana Department of Natural Resources and Natural Resources Commission v. United Refuse Company, Inc. (Ind. S. Ct. 1993) 615 N.E.2d 1001 makes it clear that NRC administrative law judges perform a duty similar to that of a trial judge sitting without a jury. Therefore, administrative law judges should follow these same precedents on summary judgment proceedings.