Order
The administrative law judge finds that Edward J. Wilson has not made averments which would invoke the subject-matter jurisdiction of the Natural Resources Commission to review the approval of the amended district plan as entered by the Division of Water, Department of Natural Resources, on June 9, 1997. This finding is made with the express understanding the Edward Wilson may raise any pertinent matters to the Board of Directors of the Cordry-Sweetwater Conservancy District, or to the Brown Circuit Court relative to implementation of the amended district plan, including issues pertaining to rate determinations or other financial matters.
Findings of Fact
1. Following the creation of a conservancy district by the circuit court, the district is required to establish a "district plan." As provided today in IC 14-33-6-2, a "district plan consists of an engineering report that sets forth the general, comprehensive plan for the accomplishment of each purpose for which the district was established." The district plan includes physical and technical descriptions, maps, preliminary drawings, cost estimates based upon preliminary engineering surveys and studies, copies of agreements with other governmental entities, and works of improvement.
2. The board of directors must submit a district plan to the Commission for its approval. "The [C]ommission may reject a plan or any part of a plan." IC 14-13-6-4(d) [sic. IC 14-33-6-4(d)]. "After receiving the approval of the [C]ommission, the board shall file the district plan with the court." IC 14-13-6-5(a) [sic. IC 14-33-5-5(a)]. Following the filing by the board of directors, the courts set the district plan for a hearing. IC 14-13-6-5(b)[ sic. IC 14-33-6-5(b)].
3. The conservancy district statutory chapter (IC 14-13) does not address review of the "approval" process at the state agency level, but administrative reviews are addressed generally in the administrative orders and procedures act. Included within the definition of "license" is an "approval" required by law. IC 4-21.5-1-8. The term "license" is also defined in the statutory chapter which governs the relationship of the Commission and the Department to include an "approval" that may be issued by the Department under IC 14-11-3-1(a).
4. Significant to the inclusion of "approval" within the definition of "license" in IC 14-11-3-1(a) is that "[n]otwithstanding any other law, the director [of the Department] shall issue all licenses." IC 14-11-3-1(b). A designee may act for the director in license issuance, but the designee must be a "full-time employee" of the Department. IC 14-11-3-1(c). The Commission then acts as the "ultimate authority" for licensing determinations by the director or his designee. "Ultimate authority" is defined by the administrative orders and procedures act to mean the entity "in whom the final authority for an agency is vested by law." IC 4-21.5-1-15.
5. With this background, the Commission in 1996 entered guidelines[FOOTNOTE i] to govern the processing of submittals with respect to district plans and their possible administrative review:
A. The
board of directors of a district submits any proposal for or pertaining to a district plan to the
Division.
B. The Division assists the board in identifying licensed likely to be required to
implement the district plan. The Division also coordinates with the Indiana Department of
Environmental Management and the Indiana State Department of Health concerning any
comments pertaining to the development of a district plan.
C. The Division of Water reviews
and gives due consideration to comments and alternative proposals to the district plan which may
be submitted by other interested persons. In performing this function, the Division "shall
consider only technical, engineering, and scientific issues necessary to development of the
district plan." [Emphasis added.]
D. The Director of the Division approves or disapproves the
district plan. Notice of the agency action and the opportunity to seek administrative review
pursuant to the administrative orders and procedures act is provided to the board of directors and
to any other person requesting a copy of the notice.
E. An
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administrative law judge for the Commission conducts any administrative review sought fromapproval or disapproval of the district plan by the Division.
6. The conservancy district statutory chapter recognizes that approved district plans may subsequently be amended. As provided in IC 14-33-6-12(a), as the result of experience in the operation of a district or changed conditions, "the district plan may be amended in any way as long as the amended district plan conform to the other requirements" of the law.
7. "The same procedures provided for the initial submission of the district plan must be complied with for the submission of an [sic. amended]district plan." IC 14-33-6-12(d).
8. With respect to an amendment to a district plan, the role of the Division is to consider technical, engineering, and scientific issues necessary to development of the amended district plan. The role of the Commission and its administrative law judge is to provide an opportunity for administrative review of those same issues and those issues alone.
9. Wilson presents a laundry list of grievances directed to Cordry-Sweetwater and the Department. None of the items listed presents any issue, however, bearing directly upon the technical, engineering, and scientific issues needed for the Division to evaluate the amended district plan.
10. Wilson's list of grievances are summarized in his "Objection to Motion to Dismiss and Request for Administrative Review" filed on July 29, 1997.
11. Wilson urges that Cordry-Sweetwater did not present a proper petition as prescribed in IC 14-33-2-2. As correctly pointed out in the "Response to Objection to Motion to Dismiss" filed by Cordry-Sweetwater on July 30, 1997, this section applies to initial petitions to establish conservancy districts and has no application to district plans or amended district plans.
12. Wilson urges that Cordry-Sweetwater did not post a bond as required by IC 14-33-2-8, but again as pointed out by Cordry-Sweetwater, this section applies to initial petitions to establish conservancy districts and has no application to district plans or amended district plans.
13. Wilson urges that the minutes of the board meeting for Cordry-Sweetwater, approving the plan amendment, were defective in format or lack of signature. Whether these alleged defects have any substantive consequence must be for a court to determine. Wilson has raised no issue bearing upon the technical, engineering, and scientific issues needed for the Division to evaluate the amended district plan. As pointed out in the "Respondent Department of Natural Resources in Support of its Motion to Dismiss," the "Department is neither required, nor can it be expected, to have knowledge of matters that occur at individual district board meetings."
14. Wilson urges that he would be "aggrieved and adversely affected by the actions" of Cordry-Sweetwater in electing to opt out of the jurisdiction of the Indiana Utility Regulatory Commission. The statement is entirely conclusory and reflects his general dissatisfaction with the vote by the board of Cordry-Sweetwater and with the Division's responsive order approving the amended plan. No basis is stated for the dissatisfaction. Wilson has placed nothing before the Commission upon which to provide meaningful review under IC 4-21.5 as to whether the Division has failed to properly review technical, engineering, or scientific issues.
15. Wilson urges that the
Department was mislead into approving the amended district plan "by the statement that the
Brown County Circuit Court had approved the amendment, followed by letter of June 18, 1997."
A. This same or a very similar allegation was made by Wilson during a prehearing conference
held on July 15, 1997.[FOOTNOTE ii] The statement is at odds, however, with Wilson's request for
administrative review when he represented that the "Brown Circuit Court has not yet approved
the amendment, as indicated in some of the materials obtained June 18, 1997 from [Division
employee] Mr. Abriani."
B. An administrative law judge hears each case de novo. Indiana Department of Natural Resources v. United Refuse Company (1993 Ind. Sup. Ct.) 615 N.E.2d 100. As such, an administrative law judge independently weighs any relevant evidence in
dispute and issues a nonfinal order based on findings from that evidence; the order from the
administrative law judge is not based upon the DNR's initial determination. DNR v. Farley, d/b/a Farley's Fish Farm, 6 Caddnar 97 (1993).
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C. Even if the Division had originally been mislead by Cordry-Sweetwater as to the state of the law or facts, no basis is presented for overturning the Division's initial determination. Based upon relevant facts, the administrative law judge would provide hearing de novo. A bald assertion that the Division has been mislead says nothing as to the true nature of the facts. No basis is formed upon which an administrative law judge may render findings of a different technical, engineering, or scientific nature. 16. Finally, Wilson urges that Cordry-Sweetwater has a "huge indebtedness on an existing project" and borrowing for another project could be disastrous. Of necessity, any project for water supply results in additional costs. Wilson makes no assertion that the initial determination by the Division would cause the amended district plan to be accomplished in other than an economical manner. IC 14-33-6-4(b). Since the purpose of the conservancy district is to provide water supply, the judicial standard is whether the "public health and convenience is served" and not whether benefits exceed costs. IC 14-33-6-6.
[FOOTNOTES]
i. "Procedural Guidelines for the Establishment, Development, and Dissolution of Conservancy Districts," Natural Resources Commission Information Bulletin #12, 19 Ind. Reg. 2801 (June 1, 1996). These guidelines are available on the Internet at http://www.ai.org/nrc/procedur.htm
ii. During the prehearing conference, "Matt Abriani explained that he understood the amendment
to the plan had not been approved by the court, but rather the DNR was to provide technical
analysis preparatory to any final action by the court." Although Abriani's statements are not in
evidence, Wilson provides no support for a perspective that Abriani and the Division were
indeed mislead.