[CITE: DNR v. Paul Marvel, 1 CADDNAR 9 (1978)]
[VOLUME 1, PAGE 9]
Cause #: 77-028W
Name: DNR v. Paul Marvel
Administrative Law Judge: Shanks
Attorneys: Zlatoz, DAG; pro se (Marvel); Mellinger (Intervenors)
Date: May 11, 1978
ORDER
It
is ordered that Petitioner's permit should be issued upon proof of permission
of the landowner of the subject property to excavate as proposed by the
Petitioner.
FINDINGS OF FACT
1.
On or about the 8th day of July, 1977, the Petitioner, Paul D. Marvel filed a
verified written application with the Department of Natural Resources, Division
of Water, for a permit to establish, construct or maintain an excavation of 40'
x 100' of a bayou area in the St. Joseph River to a depth of 8' below normal
water level.
2.
On the 31st day of August, 1977, the Petitioner's application (Docket #G-5363)
was denied by the Natural Resources Commission.
3.
On September 1, 1977 notice of denial was served on Petitioner by certified
mail; return receipt being signed and dated October 3, 1977.
4.
Petitioner's request for hearing under IC 4-22-1-24 was received by the
Department of Natural Resources on October 5, 1977.
5.
On October 26, 1977 the undersigned was appointed by the Commission to hold a
hearing on the said denial pursuant to IC 4-22-1-1 et seq and IC 14-3-3-3.
6.
Such hearing having been scheduled and continued previously was set by proper
notice to the parties and convened at 2:00 o'clock p.m. local time, on April 5,
1978, at the Elkhart Public Library, Elkhart, Indiana.
7.
Such excavation is to be in an area described as part of the Northwest quarter
of Section 12, Township 37, Range 4 East of the Second
Principal Meridian in Elkhart County, Indiana.
8.
Said property upon which such excavation is to take place is owned by a Mr.
Jody Hall, a resident of California and previous owner of certain property now
owned by Petitioner and his wife located at Lot #13, Rio Lindo
Estates II, the same being adjacent thereto.
9.
The law applicable to the application is IC 13-2-22-13 and provides in
pertinent part as follows: "Any person desiring to erect, make, use or
maintain, suffer or permit, a structure, obstruction, deposit or excavation to
be erected, made, used or maintained in or on any floodway shall first file a
verified written application with the Commission, setting forth the material
facts together with plans and specifications for such structure, obstruction,
deposit or excavation, and such person must receive the written authorization
of the Commission therefore prior to construction. The commission shall issue
an order of authorization if in the opinion of the Commission such structure,
obstruction, deposit or excavation will not adversely affect the efficiency of,
or will not unduly restrict the capacity of the floodway, or will not
constitute an unreasonable hazard to the safety of life or property, or will
not result in unreasonably detrimental effects upon fish, wildlife and
botanical resources."
10.
The area in which the Petitioner desires to excavate the channel is covered
with flowing water most of the year at various depths.
11. Such
excavation will decrease the privacy of the Intervenors
and increase the probability of increased boat traffic through the bayou.
12.
Excavated material would be deposited upon Petitioner's property to be used as
fill material in low areas.
13.
Erosion of the banks in the bayou is more the result of ice, saturation and sluffing than flow.
14.
The flow characteristics of the St. Joseph River are such that the stream flows
are concentrated on the opposite (south) bank of the river and, therefore, the
proposed excavation will not increase flows through the excavated channel.
15.
The excavation will not have a significant impact on or increase bank erosion
in
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the bayou.
16.
Such excavation will not unduly restrict the capacity of the floodway but
rather will slightly increase its efficiency.
17.
Such excavation will not constitute an unreasonable hazard to the safety of
life or property.
18.
Such excavation will not result in unreasonable detrimental effects upon fish,
wildlife or botanical resources.