OFFICIAL SHORT CITATION NAME: When referring to 2009 OEA X, cite this case as

Objection to Denial of Section 401 Water Quality Certification=

IDEM No. 2007-583-66-MTM-A, COE NO. LRL-2007-66-cmh<= /p>

Relocation of Mill Creek, Mill Creek Conservancy District

Rochester, Pulaski County, Indiana=

2009 OEA 150, 08-W-J-4194

<= /u>

[2009 OEA 150, page 150 begins]

TOPICS:

Section 401 Water Quality Certification (WQC)

United States Army Corps of Engineers (the Corp= s)

Motion to Dismiss

Motion for Summary Judgment

stream reloc= ation

after-the-fact authorization

regional general permit

denial

adequate application

plan

removal

fill material

restoration of Mill Creek

additional time to comply=

restoration requirement

litigation in Pulaski County

fill characterization

pollutants

waiver

PRESIDING JUDGE:

Mary L. Davidsen

PARTY REPRESENTATIVES:

IDEM: &= nbsp; &nbs= p; Denise A. Walker, Esq.

Petitioner: = ; &n= bsp; Greg Heller, Esq.; Burke & Heller

ORDER ISSUED:

November 18, 2009

INDEX CATEGORY:

Water

FURTHER CASE ACTIVITY:

[none]

&nbs= p; &= nbsp;

[2009 OEA 150, page 151 begins]

STATE OF INDIANA &= nbsp; &= nbsp; &= nbsp; ) &= nbsp; &nbs= p; BEFORE THE INDIANA OFFICE OF

&n= bsp; = ; &n= bsp; = ; ) &= nbsp; &nbs= p; ENVIRONMENTAL ADJUDICATION

COUNTY OF MARION &= nbsp; )<= /p>

IN THE MATTER OF: &= nbsp; &nbs= p; &= nbsp; &nbs= p; &= nbsp; )

&n= bsp; = ; &n= bsp; = ; &n= bsp; = ; &n= bsp; )

OBJECTION TO THE DENIAL O= F &= nbsp; &nbs= p; &= nbsp; )

SECTION 401 WATER QUALITY CERTIFICATION = )

IDEM NO. 2007-583-66-MTM-= A &= nbsp; &nbs= p; &= nbsp; )

COE NO. LRL-2007-66-cmh &= nbsp; &nbs= p; &= nbsp; &nbs= p; ) &= nbsp; CAUSE NO. 08-W-J-4194

RELOCATION OF MILL CREEK<= span style=3D'mso-tab-count:4'> &= nbsp; &nbs= p; &= nbsp; )

MILL CREEK CONSERVANCY DI= STRICT &= nbsp; &= nbsp; &= nbsp; )

ROC= HESTER, PULASKI COUNTY, INDIANA &n= bsp; )

FINDINGS OF FACT, CONCLUSIONS

OF LAW AND FINAL ORDER

This matter having come b= efore the Court on the Indiana Department of Environmental Management’s Mot= ion to Dismiss for Failure to State a Claim or, In the Alternative, Motion for Summary Judgment, which pleading is a part of the Court’s record; and= the Court, being duly advised and having read the pleadings and motion, now ent= ers the following findings of fact, conclusions of law and final order:

Findings of Fact

= 1.&n= bsp; The Mill Creek Conservancy District (the District) sought after-the-fact authorization from the United States Army Corps of Engineers (the Corps) for the relocation of 200 linear feet of a portion of Mill Creek stream, located in the Southwest ¼ of Section 22, Townshi= p 30 North, Range 1 West, near Winamac, Pulaski County, Indiana. The Corps informed the District th= at this work was covered under the Regional General Permit, but that the Distr= ict needed to obtain a Section 401 Water Quality Certification (Section 401 WQC) from the Indiana Department of Environmental Management (the IDEM).

= 2.&n= bsp; The work was completed September 5-6, 2005 and incl= uded the removal of an oxbow, removal of a cottonwood tree, seeding the work area and establishing cover (the Project).

= 3.&n= bsp; On July 21, 2007, the District applied for a Section 401 WQC for the Project from the IDEM.&nbs= p;

= 4.&n= bsp; The IDEM notified the District that the application= was deficient on July 27, 2007. B= etween July 2007 and October 2008, the District and the IDEM communicated regarding the information needed by the IDEM in order to approve the Section 401 WQC.=

[2009 OEA 150, page 152 begins]

= 5.&n= bsp; On October 23, 2008, the IDEM issued its Denial of = the Section 401 WQC for the Project (the Denial). The Denial was based on the District’s failure to submit an adequate application. The Denial requires the District to submit a plan for the removal of the fill material and restoration of Mill Creek within sixty (60) days of the date of the Denial.

= 6.&n= bsp; The District filed its Petition for Review and Peti= tion for Stay of the Denial on November 10, 2008.

= 7.&n= bsp; The District’s Petition for Review requests additional time to comply with the restoration requirement. The District states 2 reasons for = this request: (1) the Project is t= he subject of litigation in = Pulaski County and (2) the District needs additional time to characterize the fill to determine if pollutants are present.

= 8.&n= bsp; The District presented the IDEM with the results of= the fill material characterization in December 2008.

= 9.&n= bsp; A prehearing conference was held on December 23, 20= 08, with both the IDEM and the District participating by counsel via telephone. The parties moved = to submit a status report in sixty (60) days to allow them additional time to discuss settlement. The Court issued an order for a status report to be filed on or before February 26, 2009. No status report was fi= led.

= 10.&= nbsp; A stay of the effectiveness of the Denial has not been ordered.

= 11.&= nbsp; The IDEM filed its Motion to Dismiss for Failure to State a Claim or, In the Alternative, Motion for Summary Judgment on July 10, 2009. The Court issued an Order Scheduli= ng Response on August 13, 2009. = The District did not file a response.

Conclusions of Law

= 1. The Office of Environmental Adjudication (“OEA”) has jurisdiction o= ver the decisions of the Commissioner of the IDEM and the parties to the controversy pursuant to I.C. § 4-21.5-7-3.

2.&n= bsp; Findings of Fact that may be construed as Conclusio= ns of Law and Conclusions of Law that may be construed as Findings of Fact are= so deemed.

= 3. This Court must apply a de novo standard of review to this proceeding when determining the facts at issue. Indiana Dept. of Natural Resources v. Uni= ted Refuse Co., Inc., 615 N.E.2d 100 (Ind.<= /st1:place> 1993). Findings of fact must = be based exclusively on the evidence presented to the ELJ, and deference to the agency’s initial factual determination is not allowed. Id.; I.C. &se= ct; 4-21.5-3-27(d). “De = novo review” means that:

[2009 OEA 150, page 153 begins]

all issues= are to be determined anew, based solely upon the evidence adduced at that heari= ng and independent of any previous findings.

Grisell v. Consol. City of Indianapolis, 425 N.E.2d 247 (Ind. Ct. App. 1981).

4.&n= bsp; In reviewing a motion to dismiss, “a court is required to take as true all allegations upon the face of the complaint and may only dismiss if the plaintiff would not be en= titled to recover under any set of facts admissible under the allegations of the complaint. This Court views the pleadings in a light most favorable to the nonmoving party, and we draw every reasonable inference in favor of that party.” Huffm= an v. Indiana Office of Environmental Adjudication, et al= ., 811 N.E.2d 806, 814 (Ind. 2004).

= 5.&n= bsp; 315 IAC 1-3-2(b)(4) states that a petition for revi= ew shall:

&= nbsp; State with particularity the legal issues proposed for consideration in the proce= edings as follows:

<= span style=3D'mso-list:Ignore'>(A)&= nbsp; In a case involving an appeal= of a permit, identify the following:

= (i)&= nbsp; &nbs= p; Environmental concerns or technical deficiencies related to the action of the commissioner that is the subject of the petiti= on.

= (ii)= &nb= sp; Permit terms and conditions that the petitioner contends would be appropriate to comply with the law applicable to the contested permit.

6.&n= bsp; The District does not contend that the Denial was improperly issued, rather the District requests additional time to comply w= ith the terms of the Denial. As t= he District has not challenged the issuance of the Denial, this issue is waived. The Denial was proper= ly issued.

7.&n= bsp; The District challenges certain terms of the Denial, specifically, the time allowed for restoration of Mill Creek. The District alleges that the fact= that litigation involving the Project is proceeding in another forum is sufficie= nt cause for this Court to modify the terms of the Denial.

8.&n= bsp; As IDEM correctly points out, the litigation in Pulaski County does not present a legal ba= sis for the extension of time. Th= e District would not prevail under any set of facts admissible under the Petition. Dismissal of the Petition for Revi= ew is proper in relation to this allegation.

[2009 OEA 1= 50, page 154 begins]

= 9. The OEA may enter judgment for a party if it finds that “the pleadings, depositions, answers to interrogatories, and admissions on file, together w= ith the affidavits and testimony, if any, show that a genuine issue as to any material fact does not exist and that the moving party is entitled to judgm= ent as a matter of law.” I.= C. § 4-21.5-3-23. The moving party bears the burden of establishing that summary judgment is appropriate. All facts and inferences must be construed in favor of the non-movant. Gibson v. Evansville Vanderbu= rgh Building Commission= , et al., 725 N.E.2d 949 (Ind.Ct.App. 2000). All evide= nce must be construed in favor of the opposing party, and all doubts as to the existence of a material issue must be resolved against the moving party. City of North Vernon v. Jennings North= west Regional Utilities, 829 N.E= .2d 1, (Ind. 2005), Tibbs v. Huber, Hunt &= amp; Nichols, Inc., 668 N.E.2d 248, 249 (Ind. 1996).”

10.&= nbsp; The District also requested additional time to perform an analysis of the fill material removed as part of the Project.&n= bsp;

11.&= nbsp; While the need for time in which to characterize the fill material may be suffici= ent reason to modify the terms of the Denial, this task has been completed. Therefore, this no longer serves as sufficient reason to modify the terms of the Denial. Summary judgment is proper as no g= enuine issue of fact exists relating to this allegation.

Final Order

AND THE COURT= , being duly advised, GRANTS the IDEM’s Motion to Dismiss and Motion for Summary Judgment and ORDER= S, ADJUDGES AND DECREES that this matter is DISMISSED.

You are hereby furth= er notified that pursuant to provisions of I.C. § 4-21.5-7.5, the Office of Environmental Adjudication serves as the Ultimate Authority in the administrative review of decisions of the Commissioner of the Indiana Department of Environmental Management. This is a Final Order subject to Judicial Review consistent with applicable provisions of I.C. § 4-21.5. Pursuant to I.C. &sec= t; 4-21.5-5-5, a Petition for Judicial Review of this Final Order is timely on= ly if it is filed with a civil court of competent jurisdiction within thirty (= 30) days after the date this notice is served.

IT IS SO ORDERED th= is 18thday of November, 2009 in Indianapolis, IN.

Hon. Mary L. Davidsen<= /p>

Chief Environmental Law Judge

[2009 OEA 150: end of decision]

2009 OEA 150 in .doc format

2009 OEA 15 in .pdf format