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Cause #: 01-202W
Caption: Izaak Walton League, et al. v. Dekalb County Surveyor's Office and DNR
Administrative Law Judge: Wilcox
Attorneys: Van Gilder; Kruse; Roth
Date: April 26, 2004
[NOTE 1: THE AOPA COMMITTEE MADE TECHNICAL CHANGES TO THE FINDINGS OF THE ADMINISTRATIVE LAW JUDGE. THE IZAAC WALTON LEAGUE OF AMERICA, INC. AND THE CEDAR CREEK WILDLIFE PROJECT, INC. FILED FOR JUDICIAL REVIEW ON JUNE 2, 2004 (ALLEN CIRCUIT COURT; CAUSE NO. 02C01-0406-PL-60.) ON JULY 1, 2005, THE ALLEN CIRCUIT COURT ENTERED AN ORDER OF DISMISSAL FOR LACK OF JURISDICTION. ON JULY 18, 2006, THE COURT OF APPEALS REVERSED THE LOWER COURT AND REMANDED (850 N.E.2d 957). ON JULY 9, 2008 ALLEN CIRCUIT COURT ENTERED ORDER OF STIPULATION OF DISMISSAL WITH PREJUDICE.]
[NOTE 2: ON AUGUST 8, 2007, THE ALLEN CIRCUIT COURT VACATED THE MAY 3, 2004 FINAL ORDER OF THE COMMISSION AND REMANDED TO THE COMMISSION AND THE DEPARTMENT FOR FURTHER PROCEEDINGS CONSISTENT WITH THE COURT’S ORDER. THE COURT’S ORDER IS APPENDED TO THIS CADDNAR ENTRY. ON SEPTEMBER 5, 2007, THE DEPARTMENT TOOK APPEAL IN CAUSE NO. 02 A05-0709-CV-00528. ON MAY 28, 2008, THE COURT OF APPEALS GRANTED THE DEPARTMENT'S MOTION TO DISMISS AND DISMISSED WITH PREJUDICE.].
FINAL ORDER
The FW-20,743 permit is remanded to the Department of Natural Resources so that it may determine the impacts which result from the incremental impact of the Permit action when added to other past and present actions, as required by 310 IAC 6-1-3(14)[FOOTNOTE 4]. A determination of these impacts must be documented in writing to the permit application file.
FINDINGS OF FACT AND CONCLUSIONS OF LAW
Summary Judgment
1. On May 24, 2002, an Amended Interlocutory Order on Respondent's Motions for Summary Judgement and Order on DNR Motion to Dismiss for Mootness was issued and is incorporated and made a part hereof this final order.
Background
2. Respondents, Dekalb County Surveyor's Office ("Dekalb"), and the Department of Natural Resources ("Department"), seek summary judgment and assert that no genuine issues of material fact exist in this cause. On December 13, 2001, Dekalb and the Department filed Motions for Summary Judgment. On January 22, 2002, the Department and Dekalb, respectively, filed Supplemental Motions for Summary Judgment and Supplemental Filing in Support of Motions for Summary Judgment. On January 15, 2002, Claimants filed a Memorandum of Law in Opposition to Summary Judgment and Claimant's Opposition to DNR and Surveyor's Motion for Summary Judgment. Claimants, Izaak Walton League of America, Inc., "Izaak Walton", Cedar Creek Wildlife Project, Inc., "Wildlife Project", Michael Walter, "Walter", Frederick Mackel, Alfrieda Mackel, "Mackels", and G. Richard Brown, "Brown", collectively hereinafter referred to as "Izaak Walton et al.", filed remonstrances against the issuance of permit FW-20,743, a permit which would allow the removal of two (2) logjams in the floodway of Cedar Creek in Dekalb county.
Standard of Review
3. If the designated evidentiary materials show there is no genuine issue of material fact, summary judgment is appropriate, and, as a matter of law, the moving party is entitled to judgment. Chester v. Indianapolis Newspapers,Inc., 553 N.E. 2d 137, 139 (Ind. App. 2Dist. 1990). Summary judgment is appropriate "to terminate litigation about which there can be no factual dispute and which may be determined as a matter of law." United Farm Bureau Mut. Ins. Co. v. Schult, 602 N.E. 2d 173, 174 (Ind. App. 1Dist. 1992) citing Bassett v. Glock (1977), 174 Ind. App. 439, 368 N.E. 2d 18.
4. The moving party bears the
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burden of proving "the absence of a factual issue and its entitlement to judgment as a matter of law." Norman v. Turkey Run Community School Corp., 274 Ind. 310, 411 N.E. 2d 614, 615 (1980). "Once the movant has sustained this burden, the opponent must respond by setting forth specific facts showing a genuine issue for trial." Powell v. American Health Fitness Center, 694 N.E. 2d 757, 759 citing Stephenson v. Ledbetter, 596 N.E. 2d 1369, 1371 (Ind. 1992). "If the adverse party does not respond as required by this subsection, the administrative law judge may enter summary judgment against the adverse party." Ind. Code 4-21.5-3-23(f).
5. Ind. Code 4-21.5-3-23(b) provides that "summary judgment may not be granted as a matter of course because the opposing party fails to offer opposing affidavits or evidence, but the administrative law judge shall make a determination from the affidavits and testimony offered upon the matters placed in issue by the pleadings or the evidence."
Standing
6. IC 4-21.5-3-7 provides in pertinent part:
Sec. 7. (a)...To qualify for review of any other order described in section 4, 5, or 6 of this chapter, a person must petition for review in a writing that does the following:
(1) States facts demonstrating that:
(A) the petitioner is a person to whom the order is specifically directed;
(B) the petitioner is aggrieved or adversely affected by the order; or
(C) the petitioner is entitled to review under any law. of the office of Medicaid policy and planning, the statutes or rules that support the provider's contentions of error.
7. Dekalb asserts that Claimants do not have standing and cite in support several Indiana cases.[FOOTNOTE 1] Claimants include the Indiana Division of the Izaak Walton League of America, Inc., described as an "Indiana non-profit corporation dedicated to the preservation of soil, air, woods, waters and wildlife of the state." Izaak Walton is described as the owner of property adjoining Cedar Creek and downstream from the proposed project area. See Affidavit of Thomas Dustin on behalf of Izaak Walton.
8. Claimant Cedar Creek Wildlife Project, Inc. is also described as an "Indiana non-profit corporation" with a membership of property owners living in the watershed of Cedar Creek, "...organized, in part, to protect Cedar Creek in its natural state and to preserve fish, wildlife and botanical resources of the stream and its adjacent banks, channels and wetlands." See Affidavit of Alan Diefenbach on behalf of Wildlife Project.
9. Claimant Michael Walter, "Walter," is described as a taxpayer of Dekalb county, subject to drainage assessments for work conducted on Cedar Creek. No affidavit or other support is offered in support of this assertion. Therefore, nothing in the record demonstrates a finding that Michael Walter has standing with respect to the Department's issuance of FW-20,743.
10. Additional claimants include Frederick O. Mackel, Alfrieda H. Mackel, "Mackels", and G. Richard Brown, "Brown," described as owners and residents of property along Cedar Creek, "downstream of the project area." The affidavits of the Mackels, Thomas Dustin on behalf of the Izaak Walton, and Brown support a determination that each owns property adjacent to Cedar Creek. Each claimant is described as having an interest in the fish, wildlife and botanical resources of Cedar Creek and stated to have appeared at the public hearing on this permit when conducted by the Department.
11. In regard to standing, Dekalb cites cases that are informative on judicial review. However, the cases fail to speak to the standing issues of administrative review, and specifically, administrative review before the Natural Resources Commission. For example, 36.96 Acres at supra involves a federal condemnation action which does not consider state laws. Wholesale Wine & Spirits, supra considers the question of
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standing in relation to judicial review as opposed to administrative review. Lastly, Stout at supra involves an appeal of a determination by the Board of Zoning Appeals, determinations which are subject to judicial review as opposed to administrative review. Stout provides "the word 'aggrieved' is and has been used in our statutes for many years to describe persons or parties authorized by the statute to seek judicial review of decisions by boards and agencies of government..." Id. at 518.
12. Standing criteria for parties undergoing judicial review is not the same criteria for administrative review before the Natural Resources Commission. "The Natural Resources Commission has recognized and maintains a broad interpretation of standing in regard to administrative claimants. See Wells v. DNR, Cass County Board of Commissioners and American Timber and Bridge & Culvert, 7 CADDNAR 186 (1997). The Commission has held that its position is clearly a liberal one in regarding the standing of citizens to participate in environmental administrative adjudications." See Lesch v. DNR & Town of Dune Acres, 8 CADDNAR 28, 29 (1998).
13. Ind. Code 4-21.5-3-7 requires a petitioner to state facts demonstrating that they are aggrieved or adversely affected by the order. No facts are presented showing Michael Walter is aggrieved or adversely affected by the issuance of FW-20,743. Additionally, no facts in the record demonstrate that Michael Walter has standing in this cause. Therefore, summary judgment is entered in favor of Dekalb on the issue of standing with respect to Michael Walter.
14. Affidavits by Thomas Dustin, on behalf of Izaak Walton, Frederick O. Mackel, Alfrieda H. Mackel, and G. Richard Brown, support a finding that each owns land adjacent to Cedar Creek. Affidavit of Alan Diefenbach, on behalf of Wildlife Project, supports a finding that Wildlife Project has an interest in protecting and preserving Cedar Creek.
15. The ownership interests in property along the banks of Cedar Creek, as well as Izaak Walton's and Wildlife Project's interest in protecting and preserving Cedar Creek support a finding that Izaak Walton League of America, Inc., Cedar Creek Wildlife Project, Inc., Frederick O. Mackel, Alfrieda H. Mackel, and G. Richard Brown have standing in this case.
Genuine Issues of Material Fact
16. Will the Project Adversely Affect the Efficiency or Unduly Restrict the Capacity of the Floodway, Constitute an Unreasonable Hazard to the Safety of Life or Property, and Result in Unreasonable Detrimental Effects to Fish, Wildlife or Botanical Resources under Ind. Code 14-28-1-22 (e).
Ind. Code 14-28-1-22(e) provides in pertinent part:
(e)...The director shall issue a permit only if in the opinion of the director the
applicant has clearly proven that the structure, obstruction, deposit, or excavation
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.
17. 310 IAC 6-1-3(1)[FOOTNOTE 2] defines the phrase "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 flood as determined by comparing the regulatory flood elevation under the project condition to that under the base condition.
18. The Department and Dekalb provide that no genuine issues of material fact exist in this cause and provide that "the project will not adversely affect the efficiency or unduly restrict the capacity of the floodway". The Department's Motion for Summary Judgment is supported with affidavit of Malinda Fultz, Hydraulic Engineer for
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the Department, which provides that the logjam removal would cause an increase in downstream flow at the site negligible in comparison to the entire floodplain. See Department's Exhibit E. Fultz indicates that she utilized two HEC-2 models and a HEC-1 model of the site at issue in making this determination. Fultz provides that comparisons of "storage-outflow relations, with and without the logjams, were developed from HEC-2 modeling. The storage-outflow relationships were used in the HEC-1 models to determine discharges, with and without logjams"...and "...HEC-1 discharges were used in the new HEC-2 models to determine water surface elevations, with and without logjam." From the comparisons of water surface elevations with regard to the project at issue, Fultz provides that the logjams would "not increase upstream or downstream 100-year frequency flood elevations more than 0.14'"and downstream discharges would not increase more than one (1) percent.
19. The Department additionally asserts that the project will not constitute an unreasonable hazard to the safety of life or property, and will not result in unreasonable detrimental effects to fish, wildlife or botanical resources as required by Ind. Code 14-28-1-22 (e)(2) and (3). This is supported by affidavit of Fultz and Steve Jose, Environmental Coordinator for the Department.
20. Jose, by affidavit, provides that "fish, wildlife and botanical resource losses will be reasonable as a result of this project if the project complies with" the conditions outlined in the permit, including the requirements that no heavy machinery enter the creek's main channel, no work is to be performed on the "east side of the main channel," and the requirement that only trees absolutely necessary for access to the main channel will be cut and no trees will be "cut or cleared at the logjam north of CR 72."
21. The Powell v. American Health Fitness Center standard and Ind. Code 4-21.5-3-23(f) requirements provide that Claimant has to duty to respond with facts showing a genuine issue of fact "[o]nce the movant has sustained" its burden to show that no issue of fact exists. In this instance, the Department has set forth evidence that the requirements of Ind. Code 14-28-1-22 (e) were met in reviewing the FW-20,743 permit application. Claimants do not dispute the evidence presented by the Department regarding this statutory provision.
22. Based on the foregoing analysis, no genuine issue of fact exists in regard to establishing the requirements of Ind. Code 14-28-1-22(e). Specifically, no genuine issue of material facts exists and the Department has shown that the FW-20,743 project will not: 1) adversely affect the efficiency or unduly restrict the capacity of the floodway; 2) constitute an unreasonable hazard to the safety of life or property; and 3) result in unreasonably detrimental effects to fish, wildlife, or botanical resources. Claimant does not respond with facts showing a genuine issue of fact exists regarding these three (3) issues. See Claimant's Memorandum of Law in Opposition to Summary Judgment.
23. Based on the foregoing analysis, summary judgment is issued in the Department's favor and it is held that permit FW-20743 project will not: 1) adversely affect the efficiency or unduly restrict the capacity of the floodway; 2) constitute an unreasonable hazard to the safety of life or property; and 3) result in result in unreasonably detrimental effects to fish, wildlife, or botanical resources under Ind. Code 14-28-1-22(e).
24. Did the Director Consider the Cumulative Effects of the Structure, Obstruction, Deposit, or Excavation Pursuant to Ind. Code 14-28-1-22(f).
IC 14 -28-1-22(f) provides:
In deciding whether to issue a permit under this section, the director shall consider the cumulative effects of the structure, obstruction, deposit, or excavation. The director may incorporate in and make a part of an order of authorization conditions and restrictions that the director considers necessary for the purposes of this chapter. [Emphasis not included.]
25. 310 IAC 6-1-3(14)[FOOTNOTE 3] further defines cumulative effects:
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"Cumulative effect" means the impact on the environment that results from the incremental impact of the action when added to other past, present, and reasonably foreseeable future actions regardless of what person undertakes the other actions. Cumulative effects can result from the individually minor but collectively significant actions taking place over a period of time.
26. Dekalb County asserts that "there is no genuine issue of material fact as to whether the Department...made the statutorily required assessment of the cumulative effects of the project" under the permit. Dekalb continues and asserts that only the DNR considers cumulative effects under IC 14-28-1-22(f).
27. IC 14-28-1-22(f) requires the director to consider the cumulative effects of the structure, obstruction, deposit, or excavation, in this case, the cumulative effects of the logjam removal from the floodway. 310 IAC 6-1-3(14) provides additional clarification, resulting in the requirement that the director consider the impact on the environment of the logjam removal that results from the incremental impact of the action [the logjam removal] when added to other past, present and reasonably foreseeable future actions regardless of what person undertakes the other actions. [Emphasis supplied not included.]
28. Claimants assert that a question exists as to whether the department considered cumulative effects as required by IC 14-28-1-22(f), specifically, whether the "director considered any other past, present or reasonably foreseeable actions affecting Cedar Creek." Claimants assert the DNR does not provide evidence supporting a conclusion that cumulative effects were considered.
29. In its January 22, 2002 Supplemental Motion for Summary Judgment, the Department filed a supplemental Affidavit of Malinda Fultz, which provides that Fultz considered the cumulative effects of the proposed project. Yet, nothing in her affidavit or deposition, is provided to indicate which past, present and reasonably foreseeable future projects Fultz considered in making this determination. The deposition of Fultz provides that she could not recall any specific project preceding the present logjams for review, currently proposed projects reviewed at the same time as this project, nor could she recall proposed future projects reviewed in relation to this permit.
30. Jose additionally could not recall, in deposition or affidavit, which specific past, present or future projects were reviewed in evaluating cumulative effects of the present project.
31. A genuine issue of material fact exists as to whether the Department considered the cumulative effects of the project under IC 14 -28-1-22(f). Additionally, the question of what constitutes "cumulative effects" appears to be in dispute between the parties. Dekalb argues that the definition of "cumulative effects" is solely subject to interpretation of the Department, not that of Claimants, and asserts that this definition "does not refer to all other conceivable or possible past, present or future actions of other logjams or removal of logjams."
32. The Natural Resources Commission serves as ultimate authority for the Department under IC 14-10-2-4. As such, the question of whether cumulative effects were properly considered under permit application FW-20,743 is presented to the ultimate authority, the Natural Resources Commission, to make that determination.
Hearing
33. The Department of Natural Resources is the state agency responsible for regulating floodways in Indiana. See IC 14-28-1-1. Pursuant to IC 14-10-2-4, the Natural Resources Commission, "Commission," is the ultimate authority for the Department under IC 4-21.5, the Administrative Orders and Procedures Act, "AOPA."
34. On September 24, 2002, an Order issued on Respondent's Motion to Dismiss and Respondent's Motion for Evidentiary Hearing and Response in Opposition to Respondent's Second Motion to Dismiss for Mootness. The Department and Dekalb argued that since the logjams were removed, the case was moot. The Order granted Claimant's motion for evidentiary hearing as an
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exception to the mootness doctrine. The logjams were removed prior to the July 16, 2002 telephone status conference between the parties. The Order provided:
The issue of whether cumulative effects were considered prior to permit approval under the Flood Control Act is of great public importance and is likely to recur on Cedar Creek and other Indiana floodways. Therefore, the case is appropriate for consideration and review on the merits under the exception to the mootness doctrine.
35. Hearing was held on this issue on July 23, 2003, in order to consider whether cumulative effects were properly considered under the FW-20,743 permit, "Permit." All parties were represented by counsel.
36. Izaak Walton et al., Claimants, bear the burden of going forward and the burden of persuasion, commonly referred to as the burden of proof under IC 4-21.5-3-14(c). In this instance, Claimants bear the burden of proof to show that the Department did not properly consider cumulative effects of the Permit.
37. IC 14-28-1-22 provides in pertinent part:
...(f) In deciding whether to issue a permit under this section, the director shall consider the cumulative effects of the structure, obstruction, deposit, or excavation. The director may incorporate in and make a part of an order of authorization conditions and restrictions that the director considers necessary for the purposes of this chapter. [Emphasis not included.]
38. Cumulative effects are defined at 310 IAC 6-1-3(14) for Flood Control Act purposes:
(14) "Cumulative effects" means the impact which results from the incremental impact of the action when added to other past, present, and reasonably foreseeable future actions regardless of what person undertakes the other actions. Cumulative effects can result from individually minor but collectively significant actions taking place over a period of time. Each of the following elements is considered when assessing the impact of cumulative effects within a floodway:
(A) Adverse effects on the efficiency of, or undue restrictions on the capacity of the floodway.
(B) Unreasonable hazards to the safety of life or property.
(C) Unreasonable detrimental effects upon fish, wildlife, or botanical resources.
39. The question of what constitutes an appropriate review of cumulative effects under the Flood Control Act is one of first impression for the Commission.
40. Statutory construction requires "statutes (and regulations) be construed together and not in isolation." Peabody Coal Co. v. DNR, 6 CADDNAR 113, 114, citing Kern v. Wolf (1993) 622 N.E. 2d 201, Economy Oil Corp. v. IN Dept. of State Revenue (1974) Ind. App., [321] N.E. 2d 215.
41. "Generally, rules applicable to the construction of statutes also apply to the construction of administrative rules and regulations." Peabody Coal Co. v. DNR, 629 N.E. 2d 925, (Ind. App. 1994, aff'd.). Words are to be given their plain and ordinary meaning Id. The court is required to view the regulation as a whole and look to its objective and policy. Id.
42. "Legal provisions should be construed so as to ascertain and give effect to the intentions of the legislature, as expressed in the statute." Kern at supra. "[T]he objectives and purposes of the statute in question must be considered as well as the effect and consequences of such interpretation." Id.
43. IC 14-28-1-22 mandates that the director consider cumulative effects of the Permit activity and 310 IAC 6-1-3(14) defines cumulative effects. The rule initially requires an evaluation of the proposed permit activity's "impact which results from the incremental impact of the action when added to other past, present, and reasonably foreseeable future actions regardless of what person undertakes the other actions." The activity
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must be viewed in conjunction with other actions from the "past, present and reasonably foreseeable future."
44. In conducting review of cumulative effects, the rule provides the following elements also must be considered:
(A) Adverse effects on the efficiency of, or undue restrictions on the capacity of the floodway.
(B) Unreasonable hazards to the safety of life or property.
(C) Unreasonable detrimental effects upon fish, wildlife, or botanical resources.
45. At hearing, Malinda Fultz, Engineer for the DNR Division of Water, testified that although other projects were considered prior to Permit approval, no other projects were significant enough to have an effect. When questioned about reasonably foreseeable future projects, she stated that no documents were identified to allow DNR review of future activities. Fultz testified that DNR modeling methods did not provide information on past projects for review.
46. Fultz's testimony and deposition support a finding that she did not conduct a review of past projects in relation to the Permit.
47. Fultz documented her review of the Permit in her July 26, 2001 memorandum, and found "[t]his project in conjunction with any other previously approved or currently proposed project[s] located in the floodway near this site will not cause an adverse cumulative effect on the efficiency or capacity of the floodway nor will it pose an unreasonable hazard to safety of life or property." See Stipulated Exhibit 3, "Recommendations." In the "Comment" section of the memorandum, Fultz considers the other forty-nine (49) logjams "upstream" of the two logjams of the FW-20,743 permit application. She specifically provides:
Based on the photographs submitted to the Division of Water on July 17, 2001, the 49 logjams upstream of CR 68 are not large enough to retain any significant amount of water upstream of the logjams during the 100-year frequency flood. The size and location of the logjams near CR 68 and the Dekalb-Allen County Line were estimated. For the purpose of this analysis, it was assumed that the two logjams are solid from the top of bank to the bottom of the channel. The removal of the logjams creates less than a 1% increase in downstream flows and does not raise the downstream 100-year frequency flood elevations more than the allowed 0.14'. In fact, the two large logjams have created a significant upstream increase in the 100-year frequency flood elevation.
Faultz memorandum shows an evaluation of the increase in flood elevations anticipated by the removal of the Permit logjams and considers the effect of removing the forty-nine (49) additional logjams.
48. Bill Maudlin testified at hearing that applications for removal of the forty-nine (49) other logjams had not been filed at the time the FW-20,743 permit was approved. Therefore, consideration of the forty-nine (49) logjam removals in relation to the Permit would constitute an evaluation of the of the Permit activity's "impact resulting from the incremental impact of the action when added to other reasonably foreseeable future actions," as required by 310 IAC 6-1-3(14).
49. Fultz's testimony and documentation support a finding the DNR fulfilled the requirements of 310 IAC 6-1-3(14) (A) and requirements under the rule to consider the Permit's impact resulting from the incremental impact of the Permit when added to other reasonably foreseeable future actions.
50. No other "reasonably foreseeable future actions" were identified in hearing to constitute inadequate review of these actions in relation to the Permit.
51. Fultz memorandum finding that "[t]his project in conjunction with any other previously approved or currently proposed project[s] located in the floodway near this site will not cause an adverse cumulative effect on the efficiency
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or capacity of the floodway" is not consistent with her testimony that DNR modeling methods did not provide information on past projects for review.
52. Fultz does provide an analysis of the requirements of 310 IAC 6-1-3(14)(A) and (B), consideration of the adverse effects on the efficiency of, or undue restrictions on the capacity of the floodway, and unreasonable hazards to the safety of life or property. See Stipulated Exhibit 3, HEC 1 and HEC 2 Models utilized to consider the effects of the Permit on the 100-year frequency flood elevations.
53. The Commission has previously considered the HEC-2 model as the Commission standard for determining if a structure or obstruction will adversely affect the efficiency and capacity of a floodway. See Parker v. DNR, 8 CADDNAR 84.
54. Ken Smith, Assistant Director of the Division of Water and Fultz's supervisor testified that there are no written guidelines for evaluating cumulative effects under the Flood Control Act. He stated that he worked with Fultz directly on this project and believed that the cumulative effects of the Permit were positive. He stated that although logjams may have a hydraulic effect on the floodway, it is impossible to model logjams since they move and are not permanent structures.
55. On April 16, 2001, Bill Maudlin, Section Head of the Public Assistance Section of the Division of Water, issued a "Follow-up SEA 368 #239 Environmental Assessment and Recommendation" regarding the Permit. Maudlin provides, "[t]his project will benefit fish and wildlife resources in the creek by eliminating and preventing further erosion and sediment movements if the project is accomplished by following the project plans and the conditions of an approved permit. Fish, wildlife, and botanical resource losses will be reasonable as a result of this project if the project complies with the following conditions..." See Stipulated Exhibit 4.
56. Maudlin testified that he reviewed cumulative effects of this project as "a thought process, more than anything else." Maudlin stated that he felt the project would be a benefit to the impact on Cedar Creek, as provided in his April 16, 2001 memo. Maudlin testified that there is no "substantial" guidance to determine cumulative effects. He provided that the guidance on cumulative effect review is discussed verbally with staff in conjunction with analysis of the Indiana Code provisions.
57. Maudlin explained that in July 2001, prior to permit approval, Keith Poole, "Poole," a DNR Field Biologist, and Maudlin canoed the Cedar Creek area in order to evaluate the potential affects of other logjam removal projects on the Permit. Maudlin stated that the removal of the other logjams obstructing the creek would result in a positive effect.
58. Mark Strong, Dekalb County Surveyor, testified that he had several conversations with Maudlin and Poole about the cumulative effects of the project. In his opinion, the logjam removal created "higher value" positive effect on Cedar Creek as described in Exhibit 9, photographs of the creek prior to logjam removal and after removal. Exhibit 9 clearly shows the logjams obstructing water flow in the creek.
59. Maudlin comments in his April 16, 2001, Memorandum, "[T]his project will benefit fish and wildlife resources in the creek by eliminating and preventing further erosion and sediment movements if the project is accomplished by following the project plans and the conditions of an approved permit. Fish, wildlife, and botanical resource losses were determined to be reasonable as a result of this project if the project complied with conditions set in the project. See Stipulated Exhibit 4.
60. Maudlin additionally testified that the main channel of Cedar Creek was obstructed by the logjam described as the "pilot channel" in the Poole memo of Claimant's Exhibit 5. Three channels were described in the area of the logjams. Maudlin stated that Jose recommended the cutting of two new channels in order to move material downstream. This is evidenced in Stipulated Exhibit 4, which provides:
The larger logjam is located just south of CR 68. Approximately 400 feet of the main channel of the creek is virtually cut-off by trees that have fallen and logjams that have formed. This main channel is still very well defined and visible. Side channels have formed to the west and east as a result of the main channel being blocked, and these side channels were flowing on the day of the
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inspection....Scouring is occurring in this area during higher water level events as water flow has been diverted partially in this direction....Also, the channel that has formed is now cutting and causing trees to fall. A new channel has also formed on the east side and is causing erosion and scouring in this area is resulting in additional sediment movement downstream.
...
The logjam had not completely stopped flow in the channel at the time of the inspection. A large willow was causing southern most blockage and was located on the east side of the channel. Another large tree with at least two distinct trunks has fallen across the channel from the west bank...These two obstructions are collecting loose trees, logs, and other materials, from upstream.
...
This project will benefit fish and wildlife resources in the creek by eliminating and preventing further erosion and sediment movements if the project is accomplished by following the project plans and the conditions of the permit. Fish, wildlife, and botanical resource losses will be reasonable as a result of this project if the project complies with the following conditions...
61. Maudlin testified that the logjam removal was beneficial in stopping sediment and improving fish finds, aquatic rocks, and habitat. He testified that the logjam removal in his opinion would have a positive impact on the fish and wildlife habitat and allowing the cutting of the channels to continue would worsen the area for fish, wildlife and botanical resources.
62. Staff documentation and Maudlin's evaluation of the Permit impact on fish, wildlife and botanical resources supports a finding that the requirements of 310 IAC 6-1-3(14)(C) were properly considered by the Department.
63. No documentation in the permit file establishes that DNR considered 310 IAC 6-1-3(14) impacts resulting from the incremental impact of the Permit activity when added to other past and present actions. No portion of the record includes such an evaluation.
64. Consideration of the impacts resulting from the incremental impact of the Permit activity when added to other reasonably foreseeable future actions is evidenced in the Department's consideration of forty-nine (49) additional logjam removals on Cedar Creek, logjam removals for which DNR had not yet received applications when the FW-20,743 permit was approved.
65. The record supports a finding that DNR properly considered the Permit activity's adverse effects on the efficiency of, or undue restrictions on the capacity of the floodway. See HEC-1 and HEC-2 Analyses of Stipulated Exhibit 3.
66. Maudlin's environmental assessment in Stipulated Exhibit 4 supports a finding that DNR properly considered the Permit activity's unreasonable hazards to the safety of life or property and the detrimental effects upon fish, wildlife, or botanical resources, as required by 310 IAC 6-1-3(14)(B) and (C).
FOOTNOTES
1. See Stout v. Mercer, et al. (1974), 160 Ind. App. 454, 312 N.E. 2d 515, US v. 36.96 Acres of Land, (1985) 415 N.E. 2d 855, Wine & Spirits Wholesalers of Ind. v. Alcoholic Beverage Commission, et al., (1990) 556 N.E. 2d 17, 19.
2. Since the filing of the FW-20,743 application, 310 IAC 6-1 was repealed and recodified at 312 IAC 10. Reference is here is to 310 IAC 6-1, but the result would be the same under 312 IAC 10. 312 IAC 10-2-3 is the current rule.
3. Currently 312 IAC 10-2-18
4. Currently 312 IAC 10-2-18
ORDER OR JUDGMENT OF THE COURT
The Court, having taken Petitioners' Verified Petition for Judicial Review (filed June 4, 2004) under advisement, now grants Petitioners' petition and finds:
1) the "Notice of Final Order of the Natural Resources Commission" (issued May 3, 2004) is contrary to law in that it remanded the FW-20,473 Permit to the Indiana Department of Natural Resouces so that it may "determine the impacts which result from the incremental impact of the Permit action when added to other past and present actions, as required by 310 IAC 6-1-3(14)" yet did not invalidate the permit issued by the Indiana Department of Natural Resources; and
2) the Indiana Department of Natural Resources, in issuing its permit, failed to consider the "cumulative effects" of the project (as defined by 312 IAC 10-2-18) as required by Indiana Code 14-28-1-22(e) and (f).
The Notice of Final Order of the Natural Resources Commission (issued May 3, 2004) is set aside and Department of Natural Resources Permit FW-20,473 is vacated. This matter is now remanded to the Indiana Department of Natural Resources and the Indiana Natural Resources Commission for further proceedings consistent with this Order.
August 8, 2007
Thomas J. Fells, Judge
Allen Circuit Court