Application B-14,426, submitted by Philip W. Stout, is denied.
FINDINGS OF FACT
1. In February 1994, the department of natural resources (the "department") denied application B-14,426. The applicant, Philip W. Stout, appealed the denial on February 28, 1994.
2. The application sought approval for the construction of a road crossing over Bear Creek in Wayne County.
3. The department denied the application because the plans Mr. Stout submitted were allegedly inadequate.
4. At the prehearing conference held on April 15, 1994, Mr. Stout agreed to submit new plans which would meet the criteria set forth by the department.
5. IC 4-21.5, IC 13-2, and 310 IAC 0.6 apply to this proceeding.
6. The department is an agency as defined in IC 4-21.5-1-3.
7. As defined in IC 4-21.5-1-15, "ultimate authority" means the individual or panel in whom the final authority for an agency is vested.
8. Pursuant to 310 IAC 0.6-1-2.5, the Natural Resources Commission (the "Commission") is the ultimate authority for this type proceeding. Tim Rider was assigned this case as the Commission Administrative Law Judge (ALJ).
9. An evidentiary hearing before the ALJ was held on April 28, 1995, in the Wayne County Courthouse in Richmond.
10. The department's engineer, Mr. Jimmy Yee, testified that the plans submitted by Mr. Stout appeared to be freehand, and were not certified by a professional engineer (P.E.).
11. In addition to not being certified, they were not prepared with the type of detail needed to interact with the computer model (HEC-2) that measures the effect of a project on the floodway.
12. The measuring of such floodway effect is required by IC 13-2-22 (the "Flood Control Act") prior to the department granting a permit for floodway construction.
13. At hearing, Mr. Stout did not attempt to refute any of the testimony by the department's engineer.
14. Mr. Stout, calling himself as his only witness, presented a document entitled "Instructions for Making Application for Approval of Construction in a Floodway".
15. The document appeared to have been published by the department and was undated.
16. On the first page of the document is a section pertaining to "Bridges".
17. The first line of that section reads as follows: "Plans for bridges across streams in rural areas having drainage areas above the site of less than fifty square miles need not be submitted for approval... ."
18. The undisputed drainage area of Bear Creek is one and a half square miles.
19. This document was not signed or authenticated in any other way.
20. The department presented rebuttal testimony indicating that the document pertains to permitting of state and county highway bridges, NOT bridges to be built by, or for private individuals.
21. By order of the Court, the department filed a post-hearing motion to amend the record of the hearing citing legal authority for its position. The motion was granted.
22. The legal authority for the state or county highway bridge permitting exemption if drainage area is less than 50 square miles is IC 13-2-22-13(e).
23. The claimant/applicant must meet the standard set forth in IC 13-2-22-12(d) which requires a permit be obtained from the department for all floodway construction not exempted as mentioned in the previous finding.
24. Mr. Stout has not met those standards, and therefore, has not been issued the necessary permit.
25. Mr. Stout's application must be denied because it does not contain drawings sufficient to calculate the effect on the floodway caused by the proposed construction.