The issuance by the Department of Natural Resources of the Certificate of Approval of Construction in a Floodway, Application D-15,287, to Kerry Wagoner and Keith Wagoner is in all parts affirmed.
FINDINGS OF FACT
1. The department of natural resources (the "Department") is an "agency" of the state of Indiana as defined by IC 4-21.5-1-3.
2. The natural resources commission (the "Commission") is the "ultimate authority" for the Department under IC 4-21.5-1-15. IC 14-3-3-21.
3. On July 9, 1993, the Department made an initial determination to grant a "Certificate of Approval of Construction in a Floodway" (the "Permit") to modify a dam (the "dam") on an unnamed tributary of Mounts Run near Northfield in Union Township, Boone County in favor of Kerry Wagoner and Keith Wagoner (the "Wagoners").
4. By letter dated July 28, 1993, several citizens took timely administrative review under IC 4-21.5 (the "Administrative orders and Procedures Act" or "AOPA") seeking to set aside the permit. Several of these citizens have elected not to actively pursue their administrative review, but Linda Schafer, Delvin Schafer, David Nash, and Helen Nash (the "Schafers and Nashes") have continued with their action to the present.
5. By agreement of the parties, the Wagoners were added as parties on August 9, 1993. The Schafers and Nashes, the Department, and the Wagoners are the parties to this proceeding. The Commission has jurisdiction over the person of each of these parties.
6. The substantive law at issue is set forth in IC 13-2-22 (the "Flood Control Act"). This procedural law is set forth in the AOPA and in 310 IAC 0.6-1, a rule adopted by the Commission to assist in the administration of the AOPA. The Commission has subject matter jurisdiction over this proceeding.
7. Where the Department has made an initial determination to issue a permit under the Flood Control Act, the burden of proof rests with the person seeking to set aside the permit. Brown v. Dept. of Natural Resources and Peabody Coal Company, 6 Caddnar 136 (1993).
8. The Schafers and Nashes have the burden of proving that the permit in favor of the Wagoners should be set aside.
9. The permit would authorize the Wagoners to raise the top of the dam 2.5 feet to a crest elevation of 910.1 feet, N.G.V.D. The backslope would be rebuilt from a 2:1 slope to a 3:1 slope. The normal pool for the pond created by the dam, Mallard Pond, would be established at elevation 907.2 feet, N.G.V.D. A riprap lined emergency spillway would be constructed around the east abutment. The emergency spillway control section would have a ten-foot bottom width with 3:1 side slopes and a crest elevation of 908 feet, N.G.V.D. The dam would be reconstructed according to more detailed specifications contained in plans submitted by the Wagoners. Following the completion of construction, the Wagoners would be required to submit to the Department a certified inspection report from a Registered Professional Engineer that the modifications and improvements were constructed in accordance with the approved plans and specifications.
10. Conditions of the permit would prohibit the Wagoners from leaving felled trees, brush, or other debris in the floodway. All disturbed areas would be protected from erosion during the construction period, and bare and disturbed areas would be required to be revegetated with a suitable mixture of grasses (excluding tall fescue) and legumes upon completion. All slopes 3:1 or steeper would be required to be protected with erosion control blankets after seeding. Emergency spillway riprap would be required to be of sufficient size
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to remain stable during a regulatory flood. Mitigation would be required for the removal of trees.
11. The permit indicates that the modification of the dam "will incorporate the drainage from a proposed residential subdivision located landward of the floodway. 11 Stipulated Exhibit 1.
12. The Schafers and Nashes have expressed concerns that development of the subdivision will have adverse environmental consequences for the community. Included in their concerns are the degradation of wildlife habitat within the proposed subdivision and possible water pollution from storm sewers which are anticipated to discharge into Mallard Pond. They have referred to pollutants which may be placed in the pond from outfall structures associated with the proposed residential development.
13. In determining whether to grant a permit under the Flood Control Act, the Department must properly consider the spectrum of environmental consequences likely to result from the geographic and substantive jurisdiction of the Department. In a proper case, the Department may be called upon to consider statutory pronouncements other than the Flood Control Act, but which are also administered by the Department, in evaluating a permit sought under the Flood Control Act. Schuh Ditch Citizens v. DNR, A-1 Disposal, et al., 2 Caddnar 41 1985).
14. The Department cannot exercise regulatory authority in the absence of a specific statutory authorization. The geographic jurisdiction of the Flood Control Act is limited to the floodway. IC 13-2-22-13(a) and 310 IAC 6-1-10.
15. Since the anticipated residential subdivision is located landward of the floodway, the subdivision is outside the floodway and outside the geographic jurisdiction of the Flood Control Act. Reference in the permit to the anticipated purpose of the dam reconstruction is gratuitous. The permit is neither limited by, nor subject to, the development of a subdivision outside the floodway.
16. Ordinarily, subdivision development is a function of local planning and zoning. See, generally, IC 36-7. Although not in evidence, there have been references by the parties during argument to exercise of this authority, relative to the proposed residential subdivision, by the Boone County Plan Commission. Regardless of local planning and zoning activity, however, the Department has no jurisdiction under the Flood Control Act over residential subdivisions outside the floodway and cannot regulate their development.[FOOTNOTE 1]
17. The Schafers and Nashes have expressed concerns that outfall structures will be placed within Mallard Pond or its associated floodway as a result of the anticipated residential development, and these outfall structures may carry contaminants.[FOOTNOTE 2]
18. The permit does not authorize the placement of outfall structures within Mallard Pond or its floodway. The permit authorizes a dam reconstruction and nothing more. Outfall structures may require a permit under the Flood Control Act, but their consideration at this time would be speculative and premature.
19. The Schafers and Nashes also argue that approval of the permit is premature since the Boone County Plan Commission has not approved the use of Mallard Pond as a drainage system.
20. Exercise of authority by the Department under the Flood Control Act is entirely distinct from local zoning and is independent from any local exercise of zoning authority. Approval in the permit of the dam reconstruction project, and reconstruction of the dam, carries no necessity that Mallard Pond will ever be approved by the Boone County Plan Commission as a local drainage system.
21. Facts could be posited by which the construction or reconstruction of a dam would have very serious negative environmental consequences. There was no evidence in this proceeding, however, to suggest that the reconstruction of the dam will have any appreciable consequences to the current status of Mallard Pond. There was no evidence that areas would be newly submerged or that existing submerged lands would be drained.
22. The only testimony received at hearing was by Joe Tousignant, a professional biologist employed by the Department. His testimony was unrefuted that the dam reconstruction would have no unreasonable detrimental affects upon fish, wildlife, or botanical resources.
23. The Schafers and Nashes have not met their burden required to set aside the permit. Indeed, the only evidence received bears upon affects which the dam reconstruction may have upon fish, wildlife, or botanical resources. The evidence is unrefuted that there will be no unreasonable detrimental affects.
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24. Issuance of the permit to the Wagoners should be affirmed.
FOOTNOTES
l. Conventional wisdom suggests that concerns by the Schafers and Nashes for environmental degradation resulting from residential development is not without merit. Recent statutory and regulatory enactments have sought to mitigate the harm which is the consequence of reckless development practices. A good example is the effort to control water quality through the control of soil erosion and sedimentation on construction sites through "Rule 5". 327 IAC 15-5. These enactments do not address problems associated with runoff of lawn fertilizers, roadway salts, and the list water quality disturbances which are experienced in suburban neighborhoods. Sympathy for these concerns does not carry with it regulatory jurisdiction. Jurisdiction to approve or disapprove the reconstruction of a dam does not establish authority to regulate any development which may, directly or indirectly, benefit from that reconstruction.
2. Testimony by Joseph Tousignant suggested that contaminants contained within water discharged from outfall structures is primarily within the jurisdiction of the Indiana Department of Environmental Management rather than the Department of Natural Resources. The extent to which the Department of Natural Resources does or does not have responsibility for water quality from outfall structures located within a floodway cannot properly be addressed at this time. The permit does not authorize the placement of outfall structures, and they are not now in issue.