[VOLume 8, PAGE 84]
Cause #: 97-216W
Caption: Parker v. DNR
Administrative Law Judge: Wilcox
Attorneys: Parker, pro se; Stefanovich
(DNR)
Date: August 12, 1998
ORDER
The Department's decision to deny permit application #FW-18,504 is affirmed. The Department's Notice of Violation #V-3110-FW is affirmed, and Claimant is ordered to remove the fence.
I. FINDINGS OF FACT
A. Statement of the Case
1. The "Administrative Orders and Procedures Act", ("AOPA") at IC 4-21.5 and the "Flood Control Act" at IC 14-28 apply to these proceedings.
2. The Department of Natural Resources, ("Department"), is the state agency responsible for the regulation and supervision of floodways in Indiana. IC 14-28-1-1.
3. Pursuant to IC 14-10-2-4, the Natural Resources Commission is the ultimate authority of the department under IC 4-21.5.
4. This proceeding began on October 18, 1997 with Mr. Parker's filing of a petition for review of the department's denial of a July 24, 1997 permit application to construct a six-foot (6') privacy fence at his residence, application #FW-18,504. Mr. Parker's petition for review states, among other things, that he has a survey stating that he is not in the floodway. The department disputes this assertion and a question of fact exists as to whether the fence lies in the floodway.
5. The department's denial notice additionally states that the provisions of IC 14-28-1-22 would be violated with the construction of the fence, specifically in that the efficiency of the floodway would be adversely affected, the capacity of the floodway would be unduly restricted and an unreasonable hazard to the safety of life or property will be created. See Exhibit D.
6. At issue is whether the permit application under #FW-18,504 was properly denied and whether the notice of violation under V-3110-FW is supported.
B. Burden of Proof
7. A person requesting that the department take action, and in this case requesting that the department issue a permit to construct in the floodway, bears the burden of persuasion and the burden of going forward with the proof of the request. See IC 4-21.5-3-14. Mr. Parker bears the burden of proof that he is entitled to a permit to construct the fence in question.
8. In regard to the Complaint for the Issuance of a Notice of Violation and the Imposition of Penalties, filed by the department on April 1, 1998, the department bears the burden of persuasion and burden of going forward in meeting the collective burden of proof that a notice of violation is valid.[Footnote 1]
9. On administrative review, the administrative law judge is required to consider a permit application de novo. The permit must be reviewed based upon the evidence presented at hearing, weighing of the evidence and reaching a proper conclusion, rather than deferring to the department's decision. DNR v. United Refuse Co,.Inc. (Ind. 1993), 615 N.E. 2d 100.
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10. A hearing in this matter was held on April 23, 1998 and consideration of the evidence presented supports this ruling.
C. Floodway Considerations
11. The department is authorized to issue permits to construct in a floodway, "only if in the opinion of the director the applicant has proven that the structure, obstruction, deposit or excavation ...will not ...adversely affect the efficiency of or unduly restrict the capacity of the floodway", "constitute an unreasonable hazard to the safety of life or property", or "result in unreasonably detrimental effects upon fish, wildlife or botanical resources." IC 14-28-1-22.
12. IC 14-28-1-20 provides:
A person may not do any of the following:
...(2) ...erect, make, use, or maintain in or on any floodway, or suffer or permit the erection, making, use, or maintenance in or on any floodway, a structure, an obstruction, a deposit, or an excavation that will do any of the following:
(A) Adversely affect the efficiency of or unduly restrict the capacity of the floodway.
(B) By virtue of the nature, design, method of construction, state of maintenance, or physical condition do any of the following:
(i) Constitute an unreasonable hazard to the safety of life or property.
(ii) Result in unreasonably detrimental effects upon the fish, wildlife, or botanical resources.
13. Evidence was presented at hearing regarding the delineation of the floodway of Pleasant Run Creek in relation to Mr. Parker's property. Matt Patton, Hydraulic Engineer for the Department's Division of Water specified that the floodway delineation is provided by the Federal Emergency Management Agency, ("FEMA"), in the published FEMA Flood Insurance Map of Exhibit L.
14. The Department is required to follow the approved FEMA mapping delineation of the floodway of Pleasant Run Creek. Yater v. DNR, 6 CADDNAR 168 (1994). Mr. Patton identified the location of Mr. Parker's fence on the FEMA map and showed the location of Mr. Parker's fence falls within the designated floodway of Pleasant Run Creek.[Footnote 2] The evidence supports this finding.
15. Further considerations of the floodway designations were determined by the department, specifically through review of maps regarding Mr. Parker's home subdivision as shown in Exhibits M and F.
16. As the department has demonstrated that Mr. Parker's fence lies in the floodway of Pleasant Run Creek, a question of fact remains as to
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whether such a fence may be maintained under the "Flood Control Act" provisions of IC 14-28-1-20 and IC 14-28-1-22.
17. Mr. Parker presented evidence that he cut openings near the bottom of the fence at three areas in order to allow for drainage. He further stated that culverts in his backyard would allow water to flow out of his yard. See Exhibits 4 and 7.
18. The department through Mr. Patton testified that while allowing some flow of water into the Parker property, those openings were insufficient to reduce the increase in elevation of the flood below fifteen-hundredths (0.15) of a foot as required by 310 IAC 6-1-3(1). (Ind. 1993), 615 N.E. 2d 100.
19. 310 IAC 6-1-3(1) defines "adversely affect the efficiency of or unduly restrict the capacity of the floodway" as an "increase in the elevation of the regulatory flood of at least fifteen-hundredths (0.15) of a foot..." with exceptions regarding certain dams, flood control projects and areas with secured flood easements.
20. Patton made this elevation determination by performing a hydraulic analysis utilizing a base condition HEC-2 model using the subdivision wherein the Parker home is located. A comparison of the water surface elevation with blocked out areas which would be obstructed by the fence and the water surface elevation using the base condition model was conducted. This HEC-2 model, as developed by the U.S. Army Corps of Engineers, is the standard for determining whether a structure or obstruction will adversely affect the efficiency and capacity of a floodway.
21. Further testimony by Patton showed that the HEC-2 model analysis supported a finding that Parker's fence would create an approximately 0.57' surcharge over the base condition. See Exhibit J, Recommendation for denial of Parker's application. Department testimony showed that such a surcharge could lead to flooding in areas which would not have flooded and an increase in the losses in areas where flooding is likely.
22. 310 IAC 6-1-3(25) [Footnote 3: This section is currently set forth in 310 IAC 6-1-3(39) based on 1998 revisions to the Indiana Administrative Code. The section cited indicates the rule provision as it existed at the time of permit denial.] defines "unreasonable hazard to the safety of life or property" as a means likely to result during a regulatory flood in "the loss of human life" or "damage to public or private property to which the permit applicant has neither ownership nor a flood easement."
23. The department's testimonial evidence supports a finding that Mr. Parker's fence is likely to result during a regulatory flood in damage to public or private property located near Pleasant Run Creek pursuant to 310 IAC 6-1-3(25) as property not likely to flood might be affected by the fence and an increase in losses may occur in areas where flooding is likely.
24. While Mr. Parker's petition asserts that a survey shows that his fence is not located in the floodway, no evidence was presented in hearing to support this assertion. Additionally, no evidence of an expert nature was presented to refute the department's hydraulic engineer's findings regarding adverse affects and efficiency and capacity of the floodway in relation to the fence.
25. Mr. Parker fails to satisfy the burden of proving that he is entitled to an after-the-fact permit to construct his fence.
26. The Department has demonstrated by substantial and reliable evidence that the notice of violation under #V-3110-FW is valid.
FOOTNOTES
1. Counsel for the Department informed the Administrative Law Judge at hearing that no civil penalty was sought against Mr. Parker.]
2. The evidence indicates that Mr. Parker's house is landward of Pleasant Run Creek and not located in the floodway.