The permit is vacated and summary judgment granted to the Grant County Drainage Board to perform a reconstruction or maintenance project on Back Creek in Grant County without a permit under IC 14-28-1. This proceeding is dismissed for mootness.
FINDINGS OF FACT
1. On March 25, 1994, the department of natural resources (the "Department") issued a permit for construction in a floodway G-15,266 (the"permit") to the Grant County Drainage Board pursuant to IC 14-28-1 (formerly IC 13-2-22). The subject of the permit was reconstruction or maintenance project for Back Creek, a regulated drain located in Grant County and Madison County, Indiana.
2. The Grant County Drainage Board, as well as Robert L. Vetor and others, filed timely requests for administrative review under IC 4-21.5 with respect to the permitting action by the Department. Billie Jean McQuithy initiated a separate administrative review which, in large measure, supported the permitting action by the Department.
3. As provided in IC 14-28-1-22(b)(1), no permit is required for construction in a floodway for "[a] reconstruction or maintenance project. . .on a stream or an open regulated drain if the total length of the stream or open drain is not more than ten (10) miles."
4. A consequence of these proceedings is that the Department caused Robert W. Wilkinson, an Indiana Registered Land Surveyor, to determine the length of Back Creek. Wilkinson reviewed relevant mapping materials in order to develop an estimate for the length of Back Creek from its confluence with the Missessinewa River to its upper end. Using the Topographically Integrated Geographic Encoding and Referencing (TIGER) mapping system created for the 1990 U.S. Census by the U.S. Department of Commerce, Bureau of Census, in cooperation with the U.S. Geologic Survey, and using computer technology commonly known as a geographic information system (GIS), and based upon his professional expertise and experience, Wilkinson determine the length of the line representing Back Creek to be approximately 9.123 miles. Affidavit of Robert W. Wilkinson, R.L.S., November 28, 1995.
5. The construction activity anticipated by the permit qualifies for the exemption provided by IC 14-28-1-22(b)(1). No permit is required under IC 14-28-1 to perform reconstruction or maintenance project on Back Creek in Grant County. The Department lacks authority over Back Creek for the activity anticipated by the permit. There is not a genuine issue in
dispute as to the authority of the Department to require a permit; that authority is lacking, and summary judgment must be granted under IC 4-21.5-3-25 to authorize the Grant County Drainage Board to act without need for a permit under IC 4-28-1.