Order
The decision of the department to issue Floodway Construction Permit FW-16,943, subject to nine general conditions and twelve special conditions to the Floyd County Commissioners is affirmed.
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 14-28 and 310 IAC 6 apply to these proceedings.
3. The DNR is the state agency responsible for regulating the use of floodways within the state of Indiana.
4. On some date prior to January of 1996, the Floyd County Commissioners ("County") filed floodway construction permit application number FW-16,943 ("Permit") with the DNR which would replace two bridges over Little Indian Creek in Floyd County with one new bridge.
5. On January 26, 1996, the DNR approved the permit.
6. On February 8, 1996, John Boyd and other residents of Floyd County near Little Indian Creek ("Boyd") filed a timely petition for administrative review of the decision to grant the permit.
7. The Natural Resources Commission ("NRC") is the ultimate authority within the meaning of IC 4-21.5 over DNR actions involving floodway construction permits.
8. IC 4-28-1-22(e) requires issuance of the permit as long as the construction ". . . will not do any of the following:
(1) Adversely affect the efficiency of or unduly restrict the capacity of the floodway.
(2) Constitute an unreasonable hazard to the safety of life or property.
(3) Result in unreasonably detrimental effects upon fish, wildlife, or botanical resources."
9. Boyd's request for review deals with the likelihood for increased flooding of his property if the permit is issued and the bridge construction project takes place.
10. Harm to fish, wildlife, and botanical resources is not an issue in this matter, as Boyd presented no evidence to refute the conclusions drawn by the DNR.
11. The Boyd family owns sizable parcels of land both upstream and downstream of the proposed project.
12. The proposed bridge is a somewhat unusual design in that the 100 year flood event elevation is approximately 712.0 feet and the proposed project sets the roadway elevation at approximately 710.5 feet thus utilizing the roadway as a spillway for major rainfalls.
13. The current roadway elevation in the area of the existing bridges is approximately 712.0 feet.
14. The net result is that the bridge and road design anticipate two feet or so of water flowing across the roadway during major precipitation events and even a ten year event could cause flooding of the bridge and roadway.
15. The proposed bridge will have two piers angled in the middle of the channel.
16. Because the plan also calls for the removal of two older bridges which act as obstructions, the net effect of the project is a projected increase in flood stage of less than .15 feet at all points near the proposed bridge and would decrease the 100 year flood level at some points.
17. Both the DNR and the county presented testimony from qualified professional engineers that designs such as this are not common but are used to some degree in Southern Indiana.
18. The engineer for the county also testified that while he would prefer not to design a bridge with overflow, this design was the best they could do with the site constraints placed on the project.
19. The roadway in question serves Floyd Central High School which is about 3/4 miles north of the project.
20. 310 IAC 6-1-3(20) defines the regulatory flood as ". . . the one hundred (100) year frequency flood."
21. 310 IAC 6-1-3(1) defines adverse effects or undue restrictions on the floodway as ". . . an increase in the elevation of the regulatory flood of at lease fifteen hundredths (0.15) of a foot. . . ."
22. The engineers for all the
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parties agreed that the HEC-2 computer model developed by the Army Corps of Engineers was a standard method of predicting increases (or decreases) in flood elevations due to placement of (or removal of) obstructions in the floodway.
23. The engineer for Boyd cast aspersions on the HEC-2 analyses because of questions about input.
24. Computer modeling is a "best guess" and "best available data" scenario. No party contends that it perfectly presents what will happen after construction.
25. Likewise, input data to some extent is based on educated guesses by experienced engineers. No one can predict or project to the nearest cubic foot what the watershed runoff will be from a regulatory storm event.
26. Criticism can always be levied at numbers used in the model; however Boyd has failed to present data of equal or higher reliability and has failed to show that different assumptions would materially affect the HEC-2 outcome.
27. By a preponderance of the evidence, the applicant has shown this project, when completed, will not unduly restrict the floodway during the 100 year flood.
28. Boyd vigorously argues that the fact that the ten year flood stage is likely increased should be considered.
29. Since the NRC has made it clear that the only flood level to be considered by the DNR is the regulatory (100 year) event, and the legislature has given the NRC considerable freedom in making such decisions (IC 14-28-1-5), the DNR is prohibited from considering any effect on flood stages other than the 100 year flood.
30. Boyd also voices concern that the application stated that there were no houses within 1000 feet of the project when in fact there are two houses approximately 600 feet from the property in the floodplain.
31. The DNR only issues permits for construction in the regulatory floodway, not the flood plain or fringe.
32. Whether or not there are homes in the floodplain and management of the floodplain is within the jurisdiction of the Floyd County officials. No DNR permit is required to construct in a floodway fringe area. See 310 IAC 6-1-13.
33. At the hearing, Boyd raised an issue involving the lack of notice regarding Burl Rice.
34. The respondents contend, among other things, that Mr. Rice was not entitled to notices.
35. Since Mr. Rice did not appear as a witness, it is impossible to make a factual determination of whether or not he should have received notice; however it is immaterial.
36. At no time prior to hearing or even after the hearing has Rice indicated to the Hearings Division of the NRC that he wished to participate in a review of the permit.
37. Since a timely administrative review was taken, Rice could have petitioned to intervene pursuant to IC 4-21.5-3-21 but has not done so.
38. Rice has not been denied his rights if any, to administrative review.
39. A number of persons have received notices in this matter. Even if Rice did have an absolute legal right to notice, this case is distinguishable from Citizens Against the Pit v DNR and Silver Creek Sand and Gravel Company (1996), 7 Caddnar 140, in which the NRC revoked a permit because the applicant failed to send notices to any adjacent property owner.
40. Boyd contends that the positioning of the piers will cause an excess accumulation of debris and the DNR did not account for this problem in its HEC-2 model.
41. 310 IAC 6-1-7(c) assumes bridges will remain free of debris and ice.
42. In spite of 310 IAC 6-1-7(c), the DNR recognized the practical reality of narrow bridge openings (or bridge openings on narrow streams) and included a condition to the permit requiring that the opening be maintained so as to be free of debris.
43. IC 14-28-1-36 gives the DNR the ability to impose a fine up to $1000 per day for a violation of the terms and conditions of a floodway construction permit.
44. This is an adequate means to enforce the conditions of the permit. [FOOTNOTE 1]
45. The remainder of Boyd's arguments basically deal with contentions that designing a bridge with the intent of having it flood and be part of an over flow system is a bad idea.
46. The DNR's responsibility is to assess the impact of the proposed project on the floodway.
47. It is not the responsibility of the DNR to comment on bridge designs or to redesign on relocate bridges.
48. The design and location of the bridge-roadway system is purely a local political decision; if it satisfies the
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minimum requirements under IC 14-28, the division of water does not have the authority to disapprove the design.
49. The permit meets all statutory requirements of IC 14-28.
FOOTNOTE
1. See DNR v. Banner, 5 Caddnar 176 (1991) for a case in which the NRC upheld the imposition of fines totalling $30,000 for violating the terms of a 1967 floodway construction permit.