[CITE: Hobson Family Farms, LLC
v. Lambermont & DNR, 11 CADDNAR 198 (2007)]
[VOLUME 11, PAGE 198]
Cause #: 07-012W
Caption: Hobson Family Farms, LLC v.
Lambermont & DNR
Administrative Law Judge: Jensen
Attorneys: Bruner (Hobson); Van Gilder
(Lambermont); White (DNR)
Date: September 21, 2007
FINAL ORDER
153. The
Department’s determination to issue Certificate FW-23862 to Lambermont, is
affirmed.
FINDINGS OF FACT AND CONCLUSIONS OF LAW
PROCEDURAL
BACKGROUND
1.
On
January 5, 2007, Royden Hobson and Hobson Family Farms LLC (“Hobson”) initiated the instant proceeding by filing their Petition for Administrative Review and Stay of
Effectiveness of Approval Number FW-23862 with the Natural Resources
Commission (“Commission”).
2.
The
Department of Natural Resources (“Department”)
issued to Ron Lambermont (“Lambermont”)
a Certificate of Approval for Construction in a Floodway (“Certificate FW-23862”) based upon application number FW-23862. Certificate FW-23862 authorizes Lambermont to
prepare and operate a canoe launch within the floodway of Sugar Creek located
in Parke County Indiana, immediately upstream of Turkey Run State Park.
3.
Certificate
FW-23862 was issued under the authority of IC 14-28-1-1 et seq., also known as
the Flood Control Act (“FCA”).
4.
The
Department is the governmental agency charged with the responsibility of
administering the FCA.
5.
Hobson
is the owner of real property situated adjacent to Sugar Creek and adjoining the
site owned by Lambermont upon which activities authorized by Certificate
FW-23862 will be undertaken.
[VOL. 11, PAGE 199]
6.
Hobson
alleges in the Petition that the
Department, in issuing Certificate FW-23862, failed to impose conditions
sufficient to protect the environment and Hobson and that activities authorized
by Certificate FW-23862 have resulted in the intentional placement of fill in
the floodway as well as the placement of fill into the floodway as a result of
unchecked erosion. Hobson additionally alleges that increased canoe and
recreational tubing in this segment of Sugar Creek will not only increase
consequences of human injuries and the destruction of public and private
property but will also have an unreasonable detrimental impact upon fish,
wildlife and botanical resources. More
specifically Hobson sought an administrative hearing to address the following
issues:
a. Whether the construction and operation at the
site will cause unreasonable detriment to the fish, wildlife and botanical
resources of the stream;
b. Whether the construction and operation at the
site will cause unreasonable harm to life, safety and property;
c. Whether the construction and operation at the
site violates other statutory and regulatory protections of the subject stream,
including, but not limited to, the Indiana Natural, Scenic and Recreational
River Act, IC 14-29-6, the Indiana Nature Preserves Acts, IC 14-31-1, the
state’s anti-degradation standards for water quality, 327 IAC 2-1-2 and
2-1.5-4, the Indiana Department of Environmental Management’s water quality
certification requirements set out at Section 401 of the Clean Water Act, the
state’s surface water quality standard set our at 327 IAC 2-1-6 and 2-1.5-8,
protections afforded to species of plants and animals that are listed in
Indiana as extirpated, endangered, threatened or rare, and the protections
against unlawful dredging and filling under Section 404 of the Clean Water Act;
d. Whether the cumulative effects of this
project with respect to safety of life or property, and the fish, wildlife and
botanical resources, dictate that the application should have been denied.
7.
Throughout
the pendency of this proceeding Hobson has been represented by counselors,
David C. Van Gilder and James A. Bruner.
Charles P. White, counsel, has represented the Department. Counselors, Robert R. Clark and Lindy B. Burris,
were retained by Lambermont on February 9, 2007 following the prehearing
conference.
8.
A
prehearing conference was scheduled and conducted on January 18, 2007 with all
parties participating. A hearing on
Hobson’s motion for stay of effectiveness could not be scheduled before the
effective date of Certificate FW-23862.
However, Lambermont agreed not to proceed with certain activities
authorized by Certificate FW-23862 until the conclusion of the instant
proceeding on the condition that the administrative hearing be held on the
earliest date available to all parties.
[VOL. 11, PAGE 200]
9.
During
the prehearing conference Hobson was advised that the Commission possessed no
jurisdictional authority to determine matters associated with Title 327 of the
Indiana Administrative Code or the federal Clean Water Act. Mr. Van Gilder acknowledged his understanding
of the Commission’s jurisdictional constraints.
10.
On
February 20, 2007, Hobson filed their Verified
Motion to Continue for the reason that Royden Hobson was unavailable due
to medical reasons. During an impromptu
teleconference with the parties, it was determined that Hobson would withdraw
the motion for stay of effectiveness in return for a continuance of the
administrative hearing and the previously agreed upon partial stay would be
immediately lifted.
11.
Ultimately,
a two-day administrative hearing was conducted on May 9-10, 2007.
12.
The
Commission is the “ultimate authority,” as defined at IC 4-21.5-1-15, for the
Department with respect to the FCA. IC
14-10-2-3.
13.
This
proceeding is governed by the procedures set forth at IC 4-21.5-3 et seq.,
commonly referred to as the Administrative Orders and Procedures Act (“AOPA”) and administrative rules, found
at 312 IAC 3-1-1 et seq., adopted by
the Commission to assist in the application of AOPA to proceedings within its
jurisdiction.
14.
Hobson
acknowledged that Certificate FW-23862 will not result in unreasonable harm to
life, safety or property and will not adversely impact the efficiency or
capacity of the floodway. The sole
remaining issues for consideration involve Hobson’s allegation that the
Department’s issuance of Certificate FW-23862 will directly and cumulatively
have unreasonable detrimental impacts upon fish, wildlife and botanical
resources.
FINDINGS OF FACT
15.
Hobson’s
real property is situated directly across Sugar Creek from the project
authorized by Certificate FW-23862.
16.
Lambermont
has owned Sugar Valley Canoes, providing cabins as well as kayak and canoe
opportunities on Sugar Creek since 1981.
Presently, Lambermont utilizes several different public access sites and
one private site for launching canoes and kayaks. Testimony
of Lambermont.
17.
Through
the completion of the project, Lambermont intends to eliminate the need to use
the public access launch sites that he presently uses, opting instead to launch
canoes and kayaks for his recreational customers exclusively from his own
private launch site. Testimony of Lambermont.
[VOL. 11, PAGE 201]
18.
Lambermont’s
project, authorized by Certificate FW-23862, may generally be discussed in
terms of three (3) interconnected components with those components including a “roadway,”
a “landing area” and a “footpath/access area.”
19.
Travis
Murphy (“Murphy”), an Environmental
Scientist with the Department’s Division of Water who holds a degree in Public
and Environmental Affairs from Indiana University was the administrative staff
person assigned to the permit application for Certificate FW-23862. In this role Murphy provided preliminary
technical review including pulling and reviewing appropriate flood maps from
which he plotted the project site, calculated the base flood elevation and
conducted other background research for the file. Murphy solicited relevant information from
Departmental resources and routed the file, or pertinent information from the
file, to other relevant staff including biologists, engineers and others in
order to facilitate proper Departmental review.
Testimony of Murphy.
20.
Murphy
was never on Lambermont’s proposed site.
Testimony of Murphy.
21.
The
evidence in this proceeding is complicated by the fact that there exists no
floodway delineation for the segment of Sugar Creek associated with Certificate
FW-23862. Testimony of Murphy.
22.
Where,
such as here, the floodway has not been delineated the appropriate method of
ascertaining the floodway is to determine the base flood elevation (“BFE”).
With respect to the site associated with Certificate FW-23862, the
Department established the BFE through two HEC RAS single cross section models with
one based upon a Department Quadrangle map and the second based on Lambermont’s
Topographical maps. Through this process the BFE was determined to be 539.3
feet above mean sea level. The BFE
determined by the Topographical map was consistent with the BFE calculated
based upon the Quadrangle map leading Department staff to conclude that the
determination was accurate. Testimony of Murphy, Stipulate Exhibit I-4,
Page 1.
23.
Consequently,
any work below 539.3 feet would constitute work within the floodway. Testimony
of Murphy.
24.
Murphy’s
review of the application was purely from a technical standpoint while Brian
Boszor (“Boszor”) was primarily
responsible for the environmental review associated with fish, wildlife and
botanical resources. Therefore, the application
and pertinent environmental data was routed to Boszor. Testimony
of Murphy, Stipulated Exhibit I -6F.
25.
According
to Lambermont, the roadway, which was cut using excavators in an area outside
the floodway, or above 539.3 feet, was constructed before he applied for Certificate
FW-23862. The roadway varies between
twelve and eighteen feet in width and has been covered with gravel.
[VOL. 11, PAGE 202]
26.
John
Hall (“Hall”), a Field Inspector and
Investigator for the Department’s Division of Water since 1982, was not
involved in the Department’s review of Lambermont’s permit application for
Certificate FW-23862, but did have history with Lambermont’s project.
27.
In
reviewing Lambermont’s application for Certificated FW-23862, Murphy and others
involved in the review consulted with Hall.
28.
Hall had
visited the site approximately twenty-five times commencing in November 2005,
during Lambermont’s excavation of the roadway, with the last visit occurring in
May 2007. Hall’s involvement with the
site resulted from local concerns expressed about Lambermont’s work. Hall’s site visits were intended only as a
means of monitoring Lambermont’s work in relation to the floodway. Testimony
of Hall.
29.
At no
time was a survey conducted to ascertain with certainty the location of the
floodway. Testimony of Lambermont.
30.
However,
if large or extensive impacts are expected to result from a proposed project,
the Department requires the applicant to provide appropriate surveys confirming
the actual floodway location. The
Department made no such request of Lambermont with respect to the instant
permit application. Testimony of Murphy.
31.
Hall,
who possesses a Civil Engineering degree from Tri-State University, also
testified that during one of his site visits he attempted, based upon site
conditions and observations, to identify a line of demarcation of the floodway. Testimony
of Hall.
32.
Hall’s
identification of the floodway in question was made possible by 35 years of
experience involving the viewing of 50 floodways per month. Hall’s floodway determination was based on
his observation of the site and estimation of the 100 year flood
elevation. Hall observed the steepness
of the bank and further determined that the floodplain for this bank would be
the same as the floodway. However, Hall
recognized that his ability to determine the exact location of a floodway is
essentially his “best guess” based upon his education, training and experience.
Testimony
of Hall.
33.
Lambermont’s
and Hall’s testimony was consistent with respect to the fact that Hall identified
a tree on Lambermont’s property that Hall believed was consistent with the
floodway line.
34.
However,
Hall’s testimony disputes Lambermont’s belief that the roadway is located
entirely outside the floodway. Hall testified
that, “by his estimates” the lower end of the roadway, approximately ten feet
(10’), is, in fact, located within the floodway.
[VOL. 11, PAGE 203]
35.
The
roadway leads in a northwesterly direction somewhat parallel to Sugar Creek with
the lower end of the roadway lying adjacent to the landing area.
36.
The
landing area is approximately 100 square feet in size and represents the point
Lambermont believed was just within the floodway. The landing area is a naturally occurring
level area downgrade from the roadway that provides access to the footpath that
leads back in a general southeasterly direction to the access area on the bank
of Sugar Creek. The landing was
naturally comprised of only sand, gravel and silt without vegetation. Testimony of Lambermont and Hall.
37.
According
to Lambermont, the excavator had left tracks on the landing area during
construction of the roadway. While Lambermont
acknowledged the possibility that some gravel placed on the roadway may have fallen
onto the landing, the only other work conducted on the landing was that
required by the Department to repair the ruts in an effort to eliminate or
minimize erosion. Testimony of Lambermont, Stipulated Exhibit I-3, Page 2.
38.
Hall
concurred that a “minute” amount of sediment from the roadway might be found on
the landing, but that no excavation or fill was involved with Lambermont’s use
of or work associated with the landing area.
Testimony of Hall.
39.
The
project description contained within Certificate FW-23862, which states that “a
small amount of fill and gravel was used to level the landing area…” was
written by Murphy and possibly modified by Jim Hebenstreit or Mike Neyer. Murphy explained that he understood from Hall
and Ken Smith, who visited the site that it appeared as though fill had been
pushed onto the landing to level it up.
Murphy acknowledges that his writing of the project description is based
upon reports from Hall whose testimony is in direct conflict with the sentence
contained within the project description.
Hall’s own testimony regarding his on site observations must be accepted
here. Furthermore, a reasonable
inference may be drawn that this portion of the Department’s project description
relates to Lambermont’s work to remove the excavator tracks at Hall’s request. Stipulated
Exhibit I-12, I-3, Page 2, Testimony of Murphy, Hall and Lambermont. This inference would resolve the otherwise
apparent conflict.
40.
Lambermont
acknowledged that the landing area, located between the roadway and the
footpath/access area, is within the floodway of Sugar Creek.
41.
Hall agreed
that the landing area is located within the floodway.
42.
The
footpath/access area, which is undisputedly located entirely within the
floodway of Sugar Creek, was, according to Lambermont, originally a wildlife
path. Testimony of Hall and Lambermont.
[VOL. 11, PAGE 204]
43.
Hobson
testified that during Lambermont’s excavation of the roadway, a certain degree
of excavation activity occurred within what he believed was the floodway. Particularly, Hobson provided a photo of a
situation in which the bucket of the excavator is clearly below the roadway
area in such a position that one might believe excavation of the floodway was
occurring. Testimony of Hobson, Claimant’s Exhibit 2.
44.
However,
Lambermont maintained that no excavation work was completed within the floodway
and explained that the photo depicted a situation in which the excavator, while
constructing the roadway, had slipped off the higher ground and had used its
bucket against the lower ground for stabilization and to essentially assist in
lifting the excavator back onto the roadway.
Furthermore, additional photos of the same general area where Hobson
viewed the excavator’s bucket on the ground below the roadway reveal no
excavation of the lower ground. Testimony of Lambermont, Claimant’s
Exhibit4, 5 & 6.
45.
However,
the activity of using the excavator’s bucket to stop the slide left depressions
and tracks in the ground below that Lambermont, at Hall’s request, leveled and
revegetated for erosion control. Testimony of Lambermont.
46.
Hall
agreed that the entire footpath, which he estimated to vary from 5 to 10 feet
in width, was “all natural ground” without signs of fill or excavation. Although brush and weeds may have been
removed from the footpath. Testimony of Hall.
47.
Murphy;
however, testified that according to photographs the footpath was a “matted,”
“compacted” path and it was “obvious that excavation had taken place” but there
was no gravel or fill placed on top. Testimony of Murphy.
48.
The
discrepancy between Hall’s and Murphy’s testimony must be resolved in favor of
Hall who had been present at the site approximately 25 times and who had the
opportunity to view the site first hand as opposed to Murphy, whose conclusion
is based solely upon photographs. Testimony of Hall and Murphy.
49.
It
should also be noted that Certificate FW-23862 was issued as an after-the-fact
permit, meaning that certain floodway construction activities had occurred in
advance of the issuance of the permit, and authorizes the removal of stumps
from the footpath/access area. Stipulated Exhibit I-12. Ground disturbance associated with stump
removal could be interpreted from photos as excavation.
50.
With
respect to cumulative effects, the Department “typically takes any permit …
permits that have been issued within about a mile upstream and downstream and
do a cumulative effects review.” With
respect to the environmental review, similar data, including consideration of
fish and wildlife comments pertaining to other permits in the area, is
identified, researched and routed to the assigned environmental biologist. Testimony
of Murphy.
[VOL. 11, PAGE 205]
51.
Jon
Eggen (“Eggen”), who holds a
Bachelor’s degree in Biology from North Dakota State and who has completed three
years of graduate studies in Aquatic Ecology and has worked for the Department
for four years, first as a Statewide Biologist and then as the Environmental
Unit Supervisor for approximately two years until his recent promotion to head
of the Compliance and Enforcement Section, supervised the environmental review
of Lambermont’s application for FW-23862.
In that role he supervised Murphy, Boszor and Stanifer in assuring that
the review process moved forward efficiently and in a quality manner. Testimony
of Eggen.
52.
Boszor, who
earned a Bachelor of Science degree in Forestry and Wildlife Management from
Purdue University, was assigned to review Lambermont’s application for
Certificate FW-23862 with respect to the project’s impacts, including
cumulative impacts, upon fish, wildlife and botanical resources. Boszor has been employed by the Department as
its Central Region Environmental Biologist for five years. In this capacity Boszor is responsible for
evaluating fish and wildlife impacts associated with 200 to 300 floodway
permits annually.
53.
Boszor’s
review is completed in cooperation with other Department Divisions that were
solicited for information regarding the site.
Department Divisions from which site information was sought included the
Division of State Parks and Reservoirs and the Division of Law Enforcement, and
additional information was obtained from databases maintained by the Division
of Outdoor Recreation and the Division of Nature Preserves. Testimony
of Murphy, Testimony of Christie Stanifer (“Stanifer”), Stipulated Exhibit
I-6A-G.
54.
Boszor’s
review included a site visit, consideration of all Departmental data and other information
received forwarded by Murphy. Through
the Division of Nature Preserves it was determined that certain listed,
threatened, or endangered species of flora were located within one-half mile of
the site, most likely within the Rocky Hollow-Falls Canyon Nature Preserve;
however, none of these species were found at the proposed project site and the
habitat at the site was inadequate to support the species. Testimony
of Boszor. Furthermore, Cloyce
Hedge, of the Department’s Division of Nature Preserves reported with respect
to the application for Certificate FW-23862 that as long as the project was
confined to the proposed project limits there should be no impact to these
resources. Testimony of Eggen.
55.
Sugar
Creek is identified as an Outstanding River but is not a Scenic River. Where there is an outstanding resource, the
Department considers how the project fits into the overall landscape and the
effects of materials used. Typically
materials used in these areas are natural as opposed to man-made and are more
“fish and wildlife friendly.” Customarily these considerations involve projects
such as the construction of a seawall along the bank of a Scenic River but
Certificate FW-23862 merely authorized “clearing a pathway down to the creek
and so a lot of those issues didn’t come to play in this assessment.” Testimony
of Boszor and Eggen.
[VOL. 11, PAGE 206]
56.
At the
time of Boszor’s site visit in July 2006, Lambermont’s roadway was under
construction. Through Departmental
correspondence, Boszor was of the understanding that Lambermont’s entire
proposed project occurred outside of the floodway with the exception of the
footpath/access area to be placed from the landing to the bank of Sugar Creek. Therefore, his environmental assessment
focused solely on the footpath/access area and did not consider the landing or
any portion of the roadway. Testimony of
Boszor.
57.
The area
within which the footpath was to be placed was generally level with some
undulation that Boszor described as an overbank scour area on the inside bend
of Sugar Creek. Testimony of Boszor.
58.
Boszor
testified that this review considered only impacts specific to Lambermont’s
proposed project site and did not encompass other projects in the
vicinity. However, Boszor was aware of
another canoe launch across the creek that he did not view as part of his site
visit. Testimony of Boszor.
59.
Boszor
concluded, based upon his environmental assessment, that through the project
authorized by Certificate FW-23862 “approximately 0.02 acres of wooded and/or
herbaceous habitat will be cleared…the clearing limits are well below the 1
acre threshold for riparian habitat mitigation” Boszor recognized that ongoing
use of the “long steep road now leading to the site” (footpath) increased the
potential for erosion as a result of concentrated runoff. While Boszor’s testimony reflected that he
did not consider other sites within the vicinity, his report, dated September
13, 2006 clearly reflects his consideration of erosion and vegetative trampling
presently occurring at the canoe access site located on the other side of the
creek in developing appropriate erosion control measures and revegetation
requirements. Testimony of Boszor, Stipulated Exhibit I-6A.
60.
Boszor
who conducts environmental assessments and prepares associated reports for all
floodway permit applications in Indiana’s central region did not recall in five
years time even one other permit review involving Sugar Creek.
61.
With respect to the project’s impacts upon
fish and wildlife resources, Boszor reflected that “canoe access has been a
part of this segment of Sugar Creek for many years and local fish and wildlife
resources have become acclimated to recreational users of the stream. It is unlikely that the addition of a new
canoe launch will have unreasonably detrimental impact to the proposed site or
to local fish, wildlife, or botanical resources…” provided that certain specific
conditions are imposed upon Certificate FW-23862. Stipulated
Exhibit 6-A.
[VOL. 11, PAGE 207]
62.
Boszor,
with input from Eggen, suggested certain restrictions, including the following:
The
approximately 14’ wide by 75’ long area must be underlain with permanent turf
reinforcement matting and revegetated with a mixture of grasses, sedges, and
wildflowers native to Central Indiana and specifically for stream bank/floodway
stabilization purposes as soon as possible upon completion of the clearing activity. Permanent turf reinforcement mattings allow
vegetation to be maintained in areas where flow conditions and pedestrian
traffic exceed the limits of natural vegetation. Permanent turf reinforcement mattings utilize
a permanent structure to reinforce vegetation at the root and stem level.
Minimize
the removal of trees and shrubs as they will help stabilize the soil and
prevent erosion.
No
mechanical clearing is allowed outside of the 14’ wide by 75’ long permitted
area.
All
erosional areas that develop due to concentrated flow or increased foot traffic
must be immediately stabilized with permanent turf reinforcement mats and appropriate
natural barriers to additional traffic or erosion should be installed.
Remove
all unpermitted fill that has been placed within the floodway within 90 days
and stabilize with erosion control blankets or turf reinforcement mats.
The
cleared pathway must be separated from the surrounding habitat such that
pedestrian traffic in unreinforced areas is not likely to occur and that
vehicular traffic is not permitted within the floodway limits. The use of signs, boulders, and cabled logs
are acceptable means of demarcating the canoe access path. No storage of canoes, trailers or vehicles
will be permitted within the floodway.
The site must be maintained free of trash and other debris.
Stipulated Exhibit I-6A, Testimony of Boszor
and Eggen.
63.
Ultimately,
Boszor’s recommended special conditions were included in Certificate FW-23682. Stipulated
Exhibit I-12.
[VOL. 11, PAGE 208]
64.
Boszor testified
with respect to the impact of the project upon fish, wildlife and botanical
resources: “I can’t say that it’s going to have a necessarily positive effect,
but I can’t say that it’s going to have an unreasonably negative effect either.”
65.
Boszor
explained that “unreasonably detrimental” impact would be determined based on
“the size of the impact, whether or not the project is going to be specifically
targeting a specific fish and wildlife resource, if it’s going to be taking
place over an unreasonable period of time, if it would impact any breeding
activities of any local fish and wildlife species, if there were any hits in sightings
of threatened, endangered or rare species…those are the things that I look at
in assessing unreasonably detrimental impacts.”
Testimony of Boszor.
66.
The
project authorized by Certificate FW-23862 is approximately 0.02 acres, which
is tiny in comparison to other projects reviewed, and this site is not
particularly suited to sustain targeted, or rare, endangered or threatened
species. Testimony of Boszor.
67.
Within
the experience of the Department it is rare that an application involving a
site as small as the one involved with Certificate FW-23862 would receive as
much attention as this application did.
In fact, initially the permit application was reviewed to ascertain
whether Lambermont’s project required a permit or whether the project met the
criteria for a de minimus exception to the permit requirements because the
impacts on the floodway would be so minor.
Testimony of Eggen.
68.
Eggen
proceeded to explain that “you could basically carry canoes all day back and
forth across the floodway and you would not need a permit for that, which is
why I said this could be very close to de minimus.” In fact Eggen elaborated that “…you don’t need
a permit to drive in the floodway, walk in the floodway, carry stuff in the
floodway…just in general you would not need a permit to launch canoes in a
floodway.” Testimony
of Eggen.
69.
Boszor
recognized that activities occurring on an outside bend of a stream are more
prone to erosional forces than activities occurring on the inside of a
bend. The project authorized by
Certificate FW-23862 occurs on the inside bend.
Testimony of Boszor.
70.
One of
the public access sites utilized by Lambermont is the Brush Creek Public Access
Site. Testimony of Lambermont. The
Brush Creek public access site was reviewed by Eggen who testified that nothing
similar to the special conditions that were imposed upon Certificate FW-23862
had been required at the time the Brush Creek public access site was
constructed. Eggen observed that the
Brush Creek public access site is “dumping a lot of sediment into the creek”
and offered his opinion that use of the site authorized by Certificate FW-23862,
with all special conditions in place, would be greatly preferable from an
aquatic ecology standpoint, to the use of the Brush Creek public access
site.
[VOL. 11, PAGE 209]
71.
A
wetlands assessment was also conducted by Civil and Environmental Consultants,
Inc. (“CEC”) at the project site
authorized by Certificate FW-23862.
72.
Gregory
Gerke (“Gerke”), an Ecologist at CEC
who holds a Bachelors degree in Environmental Planning from Indiana University and
a Bachelors degree in Natural Resources Management, Geography and Biology from
Ball State University, conducted the review.
73.
Gerke
acknowledged his lack of familiarity with the project authorized by Certificate
FW-23862 stating that he was simply requested to analyze the site with respect
to wetland and streamway issues “…if someone were to do some type of
development. They didn’t really tell me
who or what.” Essentially his analysis
focused on wetlands issues and erosion issues.
Testimony of Gerke.
74.
Gerke reviewed
mapping consisting of the Wallace, Indiana Quad Map and National Wetlands
Inventory Map as well as local soil survey maps and aerial photography before
conducting a site inspection. Claimant’s Exhibit 17.
75.
Documentation
revealed to Gerke that some wetlands existed within the area covered by Certificate
FW-23862 but soil surveys indicated the existence of only soils containing
hydric inclusions but no soils actually considered to be hydric as identified
in “Hydric Soils of Indiana” (USDA,
1992.). Testimony of Gerke and Claimant’s Exhibit 17.
76.
Gerke
observed during his on site assessment the “presence of wetland hydrology…on
the lower portions of the site.” Further Gerke identified sandy soils in
sloughs between Sugar Creek and the upland areas where high organic content
existed in the surface layer and “floodplain/riparian flora including several
species that are considered hydric.” Ultimately,
Gerke’s site assessment revealed the existence of hydric soils at the site. Claimant’s
Exhibit 17.
77.
Gerke
acknowledged that the identified wetland areas were “probably” less than one
tenth of an acre.
78.
Activities
within a floodway that would cause impacts included “filling, dredging, soil
compaction, removal of trees or understory, erosion control or bank
stabilization features and culverts.” Testimony
of Gerke, Claimant’s Exhibit 17.
79.
Although
he did observe Lambermont’s roadway construction activities that were occurring
outside the floodway, at the time of his site inspection Gerke observed none of
these impact causing activities occurring within the floodway. Testimony
of Gerke.
[VOL. 11, PAGE 210]
80.
Gerke
had not returned to the site since activity authorized by Certificate FW-23862
had commenced. Testimony of Gerke.
81.
Gerke
offered no opinion as to the effects of the project authorized by Certificate
FW-23862 upon the wetlands or upon fish, wildlife or botanical resources except
to state that compactions caused by constant foot traffic, depending upon
frequency and intensity, could have a negative impact upon the hydrophytic
vegetation that he identified at the site.
Testimony of Gerke.
82.
Eggen,
who was familiar with the project authorized by Certificate FW-23862 and who
visited the project site, considered the wetlands impacts of the project and
ascertained that the wetlands would not be seriously impacted. Testimony
of Eggen.
83.
Dr.
James R. Gammon (“Gammon”), a Professor
Emeritus in Zoology at DePauw University, who holds a Bachelor of Science degree
from the University of Wisconsin Whitewater and a Masters and PhD from the
University of Wisconsin at Madison and whose area of concentration is in aquatic
ecology, was consulted to provide his observations. Testimony of Gammon.
84.
During
his tenure at DePauw, Dr. Gammon studied several rivers in Indiana, including
Sugar Creek. The studies conducted by
Dr. Gammon involved the assessment of water quality based upon evaluations of the
fish community. In so doing, it has been
determined that the best fish communities will typically be found in rivers and
streams possessing better chemical and physical qualities. Testimony
of Gammon.
85.
Dr.
Gammon elaborated that good quality fish communities are comprised of an
abundance of diverse species. In
conducting the stream quality analyses, numerical equivalents were assigned
based upon the quality of the fish community in calculating the overall quality
of the river or stream studied. Testimony of Gammon.
86.
Through
this method, Dr. Gammon’s evaluation of Sugar Creek identified parts of it as
“an exceptionally good stream, probably the best in the entire western part of
Indiana…” Dr. Gammon clarified further that
there is a long length of Sugar Creek beginning upstream of Crawfordsville
downstream almost to Turkey Run that is “very good.” Testimony
of Gammon.
87.
Dr.
Gammon visited the site of the project authorized by Certificate FW-23862 on
two occasions.[1] Testimony
of Gammon.
88.
In Dr.
Gammon’s opinion there are situations in which the review of one particular
issue and a small cross section of the stream would be appropriate for the
determination of effects on the ecology of a stream. These occasions would involve a large
chemical or physical change, such as hot water suddenly entering a cool water
stream, salty sewage effluent entering a stream, or other situations in which
the impacts are “fairly easy to tell.” Testimony of Gammon.
[VOL. 11, PAGE 211]
89.
Dr.
Gammon expressed his general opinion that the impacts of siltation and periodic
sedimentation “are extremely difficult to evaluate” and could not be determined
by consideration of an isolated project or stream segment. Testimony
of Gammon.
90.
Hall
testified that he had not observed sediment being deposited from roadway into
floodway and that erosional ruts existed in the roadway only during its initial
construction. Overall, Hall observed no
“extraordinary” erosion except when the sidebank on the roadway was soft before
installation of erosion control measures and never observed any sedimentation
from Lambermont’s activity reaching the channel of Sugar Creek or the floodway. Testimony
of Hall.
91.
Eggen
explained that Special Condition #5, which requires the underlayment of the
footpath with permanent turf reinforcement matting along with revegetation, was
designed to address erosion issues that may develop in association with
Lambermont’s canoe launch. Eggen
described the turf reinforcement mats as an incredibly strong course sponge
that will allow vegetation to grow through but will also withstand frequent
foot traffic and the dragging of canoes.
Testimony of Eggen.
92.
Special
Condition #7 and #8 were imposed upon Certificate FW-23862 to provide a
mechanism for restricting the type of traffic allowable upon the footpath and
to direct all traffic to areas underlain with the permanent turf reinforcement
matting as well as provide an ongoing means of addressing unexpected erosional
areas that might develop through actual use.
Testimony of Eggen.
93.
Other
canoe sites upstream and downstream of this site, particularly canoe access
sites located near Cox Ford Bridge were viewed and the problems observed were
considered with respect to cumulative effects and in developing the special
conditions with respect to Certificate FW-23862. Testimony
of Eggen.
94.
Dr.
Gammon acknowledged his particular concern regarding sedimentation and
generally agreed that many of the special conditions imposed upon Certificate
FW-23862 would address, to varying degrees, his concerns about sedimentation
issues. Testimony of Gammon, Stipulated
Exhibit I-12.
[VOL. 11, PAGE 212]
95.
However,
Dr. Gammon acknowledged that he was uninterested in the permit acknowledging
having read it but explaining that “reading and understanding a permit is not
something that I am interested in particularly and not something I understand
particularly.” Testimony of Gammon.
96.
Dr.
Gammon had gleaned sufficient familiarity with the project authorized by
Certificate FW-23862 to express his understanding that the overall effects
would be difficult to evaluate because of the sporadic nature of the impacts. Testimony
of Gammon.
97.
Dr.
Gammon stated unequivocally that any human or animal activity in the river
corridor will have an impact but agreed that any attempt to quantify that
impact would be speculative. Testimony of Gammon.
98.
Dr.
Gammon collected no data and performed no tests as part of his site review. Testimony
of Gammon.
99.
Dr.
Gammon refused to express an opinion as to the effect of the project authorized
by Certificate FW-23862 upon fish, wildlife and botanical resources or the cumulative
effect of the project upon Sugar Creek stating that there is “too much that is
unknown about it.” Testimony of Gammon.
100.
Factors
cited by Dr. Gammon that would be necessary to a consideration of the
cumulative effects of the project authorized by Certificate FW-23862 included
information regarding the intensity of the usage, whether usage is sporadic or
continual, and the extent to which additional projects exists or are reasonably
foreseeable. Testimony of Gammon.
101.
Dr.
Gammon testified that “It’s not in the realm of possibility to really, unless
you have unlimited manpower and money and technology, to really do a complete
analysis of the impacts to any stream system because it has to be done very
thoroughly and it would involve many, many different techniques and people who
are competent in those techniques and you would have to do it for a period of
time because weather, again, is a factor that you have no control over whatever
and you can measure the effects of it but you can’t control it…” Testimony
of Gammon.
102.
Dr.
Gammon testified that there is a wealth of research involving Sugar Creek that
should have been considered before reaching a conclusion regarding the impacts
of this project.
103.
Various
studies and research documents were received by the Department through the
public hearing and were reviewed and considered by Department staff. Testimony
of Eggen. One particular report of a
study of darters found on Sugar Creek that was provided to the Department and evaluated
with “great interest” by Eggen. Eggen
recognized that sediment is a problem, particularly for darters and explained
that the particular effort in developing the special conditions associated with
Certificate FW-23862 to some extent resulted from the information gleaned from
these documents and research information.
Testimony of Eggen.
[VOL. 11, PAGE 213]
104.
Eggen
did not dispute Dr. Gammon’s position that ideally
all available literature would be reviewed and all reasonable analyses would be
conducted for each permit reviewed; however, similar to Dr. Gammon’s conclusion
Eggen explained that to do so is impossible in the context of the number of
permit reviews conducted by the Department.
Testimony of Eggen. Instead, Eggen explained that in order to
operate efficiently, the Department has established mechanisms that allow staff
to sift through information maintained by all Department Divisions and identify
pertinent information to be considered by appropriate staff such that each
permit receives review with respect to “relevant literature, related files,
what’s up stream, what’s downstream, what’s close by, what documentation did we
get, we review that such as the darter paper, anything else that we can
find…” Testimony of Eggen.
105.
Hobson’s
predominant concern relates to the increased number of canoes resulting from
the addition of another canoe launch site and knowledge that the added launch
site will not increase the number of canoes would, to a degree, alleviate his
concerns. Testimony of Hobson.
CONCLUSIONS OF
LAW
106.
A
proceeding for administrative review is conducted de novo requiring the
administrative law judge to independently consider the evidence without
deference to the Department’s initial determination. Crafton,
et al. v. DNR and Hopkins, 10 CADDNAR 227 (2006).
107.
In this
instance, where the Department has reached an initial determination to approve
a permit, the party seeking to set aside the Department’s approval bears the
burden of proving by a preponderance of the evidence that the Department’s
action was in error. Id and IC 4-21.5-3-14(c).
108.
The FCA
requires the Department to issue a permit after the applicant clearly
establishes that the project will not (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; or, (3) Result in unreasonably
detrimental effects upon fish, wildlife, or botanical resources. The Department is also required to consider
the cumulative effects of the project. IC 14-28-1-22(e).
[VOL. 11, PAGE 214]
109.
“Cumulative
effects” are defined as “the impact 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
individually minor but collectively significant actions taking place over a
period of time…” Consideration of the
adverse effects on the efficiency of, or undue restriction to the capacity of
the floodway, unreasonable hazard to the safety of life or property and
unreasonable detrimental effects upon fish, wildlife and botanical resources
shall be considered in assessing cumulative impacts. 312 IAC 10-2-19.
110.
An
unreasonable detrimental effect upon fish, wildlife, and botanical resources is
“…damage to fish, wildlife, or botanical resources that is found likely to
occur by the director based upon the opinion of a professional qualified to
assess the damage and: (1) creates a condition where recovery of the affected
resources is not likely to occur within an acceptable period; and (2) cannot be
mitigated through the implementation of a mitigation plan approved by the
director. 312 IAC 10-2-39.
111.
The sole
issues for consideration relate to whether Certificate FW-23862 will result in
unreasonable detrimental effects to fish, wildlife and botanical resources or
that the impacts associated with Certificate FW-23862 relating to fish,
wildlife or botanical resource, in conjunction with other projects, past,
present or reasonably foreseeable in the future, are cumulatively unreasonable.
112.
The
Department is a creation of the General Assembly possessing only those powers
and authorities expressly granted. Hoosier Environmental Council v.
RDI/Caesar’s Riverboat Casino, LLC, and DNR, 8 CADDNAR 48 (1998). The Department’s jurisdiction, with respect
to all considerations under the FCA, is limited to activity occurring within
the floodway. This regulatory
restriction has previously been determined to preclude the Department from
considering the impact of activities occurring outside the floodway but which
may have impacts inside the floodway. Black v. DNR and Grace Fellowship Church,
7 CADDNAR 105 (1995), in which it was
determined that only those portions of a project occurring within the floodway
were properly considered in determining that the flood stage would not be
increased and no significant harm would befall fish, wildlife and botanical
resources.
113.
In this
instance, it is undisputed that Lambermont’s landing and footpath/access area
are totally within the floodway of Sugar Creek.
114.
With
respect to the roadway, Hall, the only expert offering testimony regarding the
location of the floodway, placed the lowest most ten feet (10’) of the roadway
within the floodway. Based upon Hall’s
testimony it must be concluded that approximately ten feet (10’) of the roadway
is located within the floodway of Sugar Creek.
[VOL. 11, PAGE 215]
115.
Consequently,
the landing, the footpath/access area and ten feet (10’) of the roadway will be
considered with respect to direct and cumulative effects upon fish, wildlife and
botanical resources.
116.
The
evidence is undisputed that the landing was, in its natural state, comprised of
sand, silt and gravel with little or no vegetation. The landing was not altered by Lambermont
except to the extent necessary to repair excavator tracks at the request of the
Department to minimize erosion.
117.
The
evidence is similarly not disputed that the footpath/access area was, in its natural
state, a wildlife path. Furthermore, the
testimony of witnesses who have actually been on site and observed the footpath
first hand agree that no excavation has occurred with respect to the
footpath. It is noted, however, that
Certificate FW-23862 authorizes the removal of stumps from this area which
might create the appearance of excavation activities.
118.
Also not
disputed is the evidence that the lower ten feet (10’) of roadway was excavated
involving the destruction of a shale overbank and removal of trees and
vegetation and the filling with a layer of gravel.
119.
Hobson
presented four witnesses who discussed the direct impacts of the Certificate
FW-23862 project upon fish, wildlife and botanical resources.
120.
Of
particular interest to all of the experts was sedimentation of the stream and
the floodway resulting from erosional forces occasioned by concentrated water
flows from the excavated roadway and heavily trafficked landing and footpath/access
area.
121.
Gammon, based
upon his lack of knowledge of the project was simply unable to and properly refused
to offer an opinion as to the direct impacts of Certificate FW-23862 upon fish,
wildlife or botanical resources.
122.
Gerke,
who was retained to conduct a site assessment with respect to wetland issues
for use if some development were to be proposed in the future, was not retained
for the purpose of expressing an opinion as to the project’s impacts upon fish,
wildlife or botanical resources and acknowledged his inability, based upon the
assessment he conducted, to offer such an opinion.
123.
Both
Gammon and Gerke did offer general observations regarding activities that might
cause detrimental effects upon fish, wildlife or botanical resources. This included Gammon’s observation that any
human or animal activity in a floodway would cause an impact and discussion
particularly about agricultural practices upon the ecology of a stream. Gerke identified a number of actions, such as
compaction, filling and dredging, that would cause impacts.
[VOL. 11, PAGE 216]
124.
However,
neither Gammon nor Gerke applied those observations to the specific project
authorized by Certificate FW-23862 except to express concern that traffic
associated with 200 or more canoes per weekend through the summer months could
cause soil compaction and vegetative trampling leading to soil instability,
erosion and sedimentation.
125.
Only
Eggen and Boszor, who were both familiar with Certificate FW-23862 and the site,
were willing and able to offer an opinion as to the project’s direct impacts
upon fish, wildlife or botanical resources and while Boszor concluded that the
impacts would not be positive, both agreed that the impacts would not be
unreasonably detrimental within the meaning of 312 IAC 10-2-39.
126.
Hall
testified that in the twenty-five visits to the site associated with
Certificate FW-23862, he had observed no significant erosion except during the
initial construction of the roadway before erosion control measures were
implemented.
127.
Gerke,
Gammon, Boszor and Eggen each conducted one or more site visits during or after
Lambermont’s excavation of the roadway.
None testified to having observed evidence within the floodway of
sedimentation or other consequences related to concentrated water flows.
128.
The
Department’s special conditions to Certificate FW-23862 were developed, through
the work and analysis of Boszor and Eggen, for the particular purpose of
addressing erosion and sedimentation issues associated with the activities
proposed to occur within the floodway, which would consist primarily of foot
traffic and the dragging of canoes.
129.
Eggen
testified that the erosion control features included as special conditions to
Certificated FW-23862, were added as a result of data obtained during the
review that indicated the existence of darters, a species known to be very
susceptible to harm from sedimentation.
130.
While
Gammon would not speculate as to the overall impacts of Certificate FW-23862, he
did acknowledge that certain of the special conditions developed by Boszor and
Eggen would be effective at reducing erosion and sedimentation.
131.
Within
the Department, its Division of Water is statutorily responsible for taking action
on applications submitted pursuant to the FCA.
However, the Division of Water coordinates with the Department’s
Division of Fish and Wildlife to fulfill the FCA’s requirements to consider
direct and cumulative impacts to fish, wildlife and botanical resources.
[VOL. 11, PAGE 217]
132.
The
Department has implemented a method by which office and field staff work as a
cooperative unit in the review of floodway permit applications. Office personnel, in this instance Murphy, an
Environmental Scientist, and Stanifer, an Environmental Coordinator, fulfill varying
responsibilities associated with administrative and technical functions such as
ensuring the completeness of the application, site identification, soliciting
input from appropriate Department Divisions based upon site and project
specifications, as well as reviewing databases for past and contemporaneous
activity in the vicinity, among other responsibilities. The data collected is reviewed and
distributed as necessary to field personnel who will be aided by the
information in fulfilling their project review obligations.
133.
With
respect to Certificate FW-23862, it was identified that the site was within
one-half mile of Rocky Hollow-Falls Canyon Nature Preserve and according to the
Indiana Natural Heritage Data Center’s Database was within one-half mile of
endangered, threatened or rare fish, wildlife or botanical resources. It was also determined that the project
involved the floodway of a Listed Outstanding River. In addition to receiving input from the
Division of Nature Preserves, comments and information were also solicited from
the Division of State Parks and Reservoirs due to the close proximity of the
project to Turkey Run State Park, the Division of Law Enforcement, Division of
Historic Preservation and Archeology and the Division of Outdoor
Recreation.
134.
Through
Departmental coordination its Division of Nature Preserves was consulted and
offered the observation that the project would have no adverse impacts provided
it remained within the proposed geographical area.
135.
Boszor’s
knowledge of the endangered, threatened or rare species of fish, wildlife or
botanical resources located within one half mile of the project site enhanced
his ability to conduct the on site evaluation of the application for
Certificate FW-23862, by placing him on notice that the species and habitat
appropriate to sustain such species existed nearby thereby lessening the
potential that the species or their habitat would be overlooked.
136.
Although
Hall, who works for the Division of Water’s Compliance and Enforcement Section,
is not involved with the review of permit applications, the consideration of
his reports and input, developed through his involvement with the site that
resulted from concerns of Lambermont’s neighbors, including Hobson, clearly
reveals that consideration was given to contemporaneous events occurring in the
area.
137.
In the
five years that Boszor has served as the Central Region Environmental
Biologist, he did not recall another permit review associated with the floodway
of sugar creek indicating the non-existence of past floodway projects to
consider with respect to cumulative effects.
[VOL. 11, PAGE 218]
138.
This
coordinated system of review also provides for oversight and a certain degree
of overlapping authority and responsibility within the Division of Water and
the Division of Fish and Wildlife, the two Department Divisions most closely
involved in the review of permit applications submitted under the FCA.
139.
Although
Boszor testified that his evaluation of application for Certificate FW-23862
involved only the particular site involved, his recommendations clearly reveal
that he considered the Brush Creek canoe launch site located directly across
Sugar Creek from which he reported that erosion problems have resulted from
concentrated runoff and vegetative trampling.
Consequently, despite his testimony it is obvious that Boszor did
consider other sources of sedimentation in conducting his review.
140.
Boszor
also recognized, and reported within his assessment, that the stream segment at
issue is a heavily trafficked recreational river segment having been used for
canoeing for many years. This
observation clearly reflects Boszor’s consideration of the type of use and
frequency of use experienced by the particular stream segment and the nearby canoe
launches in evaluating the extent of the potential impact to fish, wildlife and
botanical resources.
141.
Not only
did Boszor consider whether increased impacts upon fish, wildlife and botanical
resources would result but also considered that the canoe launch proposed in
Certificate FW-23862 would be operated on an inside bend of Sugar Creek, where
erosional forces are decreased in comparison to erosional forces at play on the
outside bend of Sugar Creek, where the Brush Creek canoe launch is located.
142.
Further
evidence that the project associated with Certificate FW-23862 will not
cumulatively impact fish, wildlife or botanical resources is the fact that this
site will replace Lambermont’s use of the Brush Creek public access site,
thereby decreasing activity at that Brush Creek, which is “dumping” sediment
into Sugar Creek.
143.
In
combination with Boszor’s review was the somewhat overlapping review conducted
by Eggen, who during a separate site visit viewed Lambermont’s entire site,
including Lambermont’s roadway, as well as public access sites upstream and
downstream, including the Brush Creek access and two additional access sites
located at the Cox Ford Bridge.
144.
Eggen
further reviewed informational documentation obtained during the public hearing
and from other sources throughout the period of time associated with the review
of Lambermont’s application for Certificate FW-23862. One of the informational documents Eggen
particularly recalled studying with “great interest” was a reported fish study
relating to darters in Sugar Creek that was written by Gammon.
[VOL. 11, PAGE 219]
145.
As a
result of their review Boszor and Eggen determined that the cumulative effects
associated with Certificate FW-23862 upon fish, wildlife and botanical
resources was “minimal” if the imposed special conditions were implemented to
address erosion and sedimentations issues.
Testimony of Eggen.
146.
Gammon’s
suggestion that an appropriate review of cumulative effects would involve a
lengthy period of time for data collection and extensive review of all
historical data available and would require access to extensive physical and
monetary resources as well as appropriately experienced staff, is appropriate
within the realm of academia. However, in
the context of the FCA, Eggen appropriately points out the impracticality of
that approach.
147.
At no time throughout the extensive evidence
received was there evidence presented of an actual, past or contemporaneous,
project on or proposed for Sugar Creek that the Department failed to consider
in its review.
148.
With
respect to potential future projects, it is accurate that Lambermont sought,
and was denied, a logjam exemption for the removal of a logjam located nearby
and the potential exists that a permit for the logjam removal could be
sought. It is not clear that the
Department critically considered the logjam issue with respect to future
projects and cumulative effects. However, there was no evidence presented to
substantiate any belief that the Department’s determination with respect to
Certificate FW-23862 would have been altered.
149.
There is
also no evidence to support a conclusion that the Department’s analysis and
consideration of the sites, projects and activities it identified as occurring
on Sugar Creek was incomplete or inappropriate.
150.
The
burden of proof is upon Hobson to prove by a preponderance of the evidence that
the cumulative effects of FW-23862 are unreasonable. Hobson has failed in this endeavor.
151.
No evidence
exists within the record to establish that direct unreasonable detrimental
effects upon fish, wildlife and botanical resources will result from the
approval of Certificate FW-23862.
152.
At no
time did Hobson’s experts offer an opinion that the cumulative effects of
FW-23862, in conjunction with other projects past, present or future, were
unreasonable.
[1] The Respondents learned on May 9, 2007, that after they deposed Dr. Gammon on May 2, 2007 he had revisited the site associated with Certificate FW-23862 and may have changed his opinions from those stated during the deposition. Respondent’s objections and motion to strike were held under advisement until the conclusion of Dr. Gammon’s testimony at which time Respondent’s acknowledged that despite the second site visit occurring after the deposition, Dr. Gammon’s testimony at the hearing was consistent with his earlier deposition testimony.