[CITE: Schuh Ditch Citizens v. DNR, A-1 Disposal, et al., 2 CADDNAR 41 (1985)]
[VOLUME 2, PAGE 41]
Cause #: 84-242W
Caption: Schuh
Ditch Citizens v. DNR, A-1 Disposal, et al.
Administrative Law Judge: Lucas
Attorneys: Clark; Long, DAG;
Date: August 7, 1985
ORDER
The
Natural Resources Commission enters its final order or determination for
Certificate of Approval of Construction in a Floodway in accordance with the
document attached and incorporated as Exhibit "A."
FINDINGS OF FACT
1. The
provisions of the administrative adjudication act (IC 4-22-1) govern this
action.
2.
The Department of Natural Resources (hereinafter the "Department") is
an agency as the term is defined in IC 4-22-1.
3.
The Natural Resources Commission (hereinafter the "Commission") is
the ultimate authority of the Department under IC 4-22-1, except as otherwise
provided by law, in accordance with IC 14-3-3-21.
4.
The flood control act (IC 13-2-22) is administered by the Commission. None of
the statutes administered by the Department which are necessary to a final
order or determination of this action specify an ultimate authority other than
the Commission.
5.
The Commission is the ultimate authority under IC 4-22-1 of this administrative
action.
6.
This administrative action resulted from the filing of objections by persons
designated in the caption of Administrative Cause Number 84-242W as Claimants
to an initial determination by the Commission that a Certificate of Approval
for Construction in a Flood way should be granted to Jerry Hinds in accordance
with the Flood Control Act (IC 13-2-22) for the relocation of Schuh Ditch within the southwest quarter of Section 25,
Township 34 North, Range 1, East in Marshall County, Indiana.
7. Following
the receipt of objections, the Commission appointed Stephen L. Lucas as hearing
officer to conduct proceedings in accordance with IC 4-22-1 and 310 IAC 0.5-1.
The appointment was made during a regularly scheduled meeting of the Commission
held on October 16, 1984. The appointment specifically authorized the hearing
officer to join or separate claims and claimants and to add parties in this
administrative action.
8.
In accordance with 310 IAC 0.5-1-10, the hearing officer scheduled a
pre-hearing conference for November 8, 1984 in the Courthouse, Plymouth,
Indiana; and in writing the Hearing Officer notified the Claimants and the Department
of Natural Resources of the pre-hearing conference.
9. A
purpose stated in the written notification of pre-hearing conference was to
afford all interested persons or parties the right and opportunity for the
settlement or adjustment of all claims, controversies and issues. Another
stated purpose was to define issues for a later hearing if settlement could not
be reached.
10.
The pre-hearing conference was held as scheduled on November 8, 1984 in
Plymouth, Indiana.
11.
During the pre-hearing conference, Fred E. Wolf, Ange
Steinmetz and Paul Hundt were granted leave to join
the action as Intervening Respondents.
12.
The Commission has jurisdiction over the subject matter and the parties to this
action.
13.
An opportunity was afforded during and immediately following the pre-hearing
conference to all interested persons or parties for the settlement or
adjustment of all claims, controversies and issues.
14.
None of the parties expressed a desire to meet with other parties to renew
their settlement efforts subsequent to the meeting which occurred during and
immediately following the pre-hearing conference.
15.
Settlement or adjustment of all claims, controversies and issues has not been
attained.
16. The
parties were notified pursuant to IC 4-22-1 that a hearing of
this cause begin on April 15, 1985 in the Patton Room, Indiana War
Memorial, 431 North Meridian Street, Indianapolis, Indiana.
17.
Notification of the hearing was also provided under the open door
[VOLUME 2, PAGE 42]
law
(IC 5-14-1.5) by posting a copy of the notice at 608 State Office Building, Indianapolis,
Indiana, being the principal office of the Department; and, by depositing a copy
in the United States mail with postage prepaid to all news media which filed an
annual request for notices with the Department. A copy of a hearing
notification was also placed outside the Patton Room before commencement of the
hearing even though no agenda was utilized by the Department with respect to
the hearing.[FOOTNOTE i]
18.
The hearing was conducted as scheduled beginning on April 15, 1985 with
additional evidence received in April 16 and April 17, at which time testimony
was completed.
19.
In accordance with IC 4-22-1-24, an applicant for a permit has the burden of
proof.
20.
The burden of proof in this administrative action rests with proponents of the
order of authorization identified in finding of fact number 6 (hereinafter the "permit".)
21. IC
13-2-22-13 (section 13 of the Flood Control Act) provides in part: "
(a).
. .It is unlawful to erect, make, use, or maintain any structure, obstruction,
deposit, or excavation in or on any floodway, or to suffer or permit any
structure, obstruction, deposit, or excavation to be erected, made, used or
maintained in or on any floodway which will adversely affect the efficiency of
or unduly restrict the capacity of the floodway or which, by virtue of its
nature, design, method of construction, state of maintenance, or physical
condition, will constitute an unreasonable hazard to the safety of life or
property, or result in unreasonably detrimental effects upon the fish,
wildlife, and botanical resources, and the same are declared to be and to
constitute public nuisances.. . ."
(c) any person desiring to:
(A)
Erect, make, use or maintain a structure, obstruction, deposit, or excavation;
or
(B)
Suffer or permit a structure, obstruction, deposit, or excavation to be
erected, made used or maintained; in or on any floodway shall first file with
the commission a verified written application for a permit.
. .The application must set forth the material facts together with plans and
specifications for the structure, obstruction, deposit, or excavation, and such
persons must receive the written authorization of the commission for the work
before beginning 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 unreasonable
detrimental effects upon fish, wildlife and botanical resources. . ."
(d)
The commission may incorporate in and make a part of such order of
authorization such conditions, restrictions, and regulations as it may deem
necessary for the purposes of this chapter."
22.
A written application for the permit as verified by Joseph L. Tite, consulting engineer for Jerry Hinds, and dated March
21, 1984, was caused to be filed by the applicant with the Department on March
29, 1984. Incorporated by reference was an Engineering
Study and Landfill Operations Guide with Attachments. (The verified written
application and the incorporated documentation are hereinafter collectively
referred to as the "application.")
23.
The application set forth material facts together with plans and specifications
for a relocation, cleaning and bank widening, including the relocation of an
existing culvert and the installation of a new culvert to serve as an outlet
control on the Newcomb-Eisenhour Drain, a tributary
of Schuh Ditch (which is a tributary of the Yellow
River by way of the Elmer Seltenright Ditch.)
24.
The purposes stated in the application were to improve site drainage, remove
the ditch from the immediate vicinity of a landfill construction, divert the
ditch away from and around the landfill construction "to ensure that
surface water does not flow into the landfill and that the refuse in the landfill
does not come in contact with the water in or flowing to, the ditch, and to
provide for a storm water detention-storage area at the northeast corner of the
site."
25.
The "site" consists generally of parcel of land located in the
southwest quarter of section 25, township 34 north, range 1 east, except two
acres in the extreme southwest corner of the southwest quarter of section 25,
in West Township, Marshall County, Indiana containing 158 acres, more or less.
26. The
application anticipated and the permit would authorize, within the site,
relocation of Schuh Ditch.
27.
As defined under IC 13-2-22-3(12), "floodway" means the channel of a
river or stream and those portions of the flood plains adjoining the channel,
which are reasonably required to efficiently carry and discharge the flood
water of flood
[VOLUME 2, PAGE 43]
flow of any river or stream.
28.
A "floodway" is calculated with respect to a "regulatory
flood."
29.
As defined in 310 IAC 6-1-3 (f), "regulatory flood" means that flood
having a peak discharge which can be expected to be equaled or exceeded on the
average of once in a one hundred year period, as calculated by a method and
procedure which is acceptable to and approved the Commission. This flood is
equivalent to a flood having a probability of occurrence of one percent in any
given year.
30.
Pursuant to guidelines approved by the Commission on March 28, 1974,
"floodway" generally would consist of the area "lying between the
lines describing the sweep and extent of moving flood waters of the regulatory
flood. . .modified in accordance with the following:
"(a)
The lines describing the limits of the floodway shall, unless specifically
exempted by the Commission, be so drawn as to include within the floodway those
man-made structures, fills, buildings, roads and other works which occupy areas
which would otherwise have been covered by moving flood waters of the
regulatory flood.”
"(b)
The lines describing the limits of the floodway shall be so drawn as to include
within the floodway the entire structural portion of those dikes, levees, flood
walls and other protective works which lie immediately adjacent to moving flood
waters of the regulatory flood. “
"(c)With the exception of Federally-owned and operated dams,
the lines describing the limits of the floodway shall be so drawn as to include
(1) all dams and appurtenant structures, and
(2) the impoundments created thereby to the elevations resulting
from passage of the regulatory flood through the impoundment and the dam and
its appurtenant structures." "It is recognized that certain rivers
and streams, or portions thereof, such as, but not limited to, the Kankakee,
Iroquois and Little Calumet Rivers, are characterized by unusually large
volumes of natural valley storage. It is further recognized that such valley
storage serves in major measure to result in substantially lower rates of flood
flow than would otherwise be the case. Conversely, the loss of such natural valley
storage in major degree would result in substantial increases in rates of flood
flow, including the peak regulatory flood discharge, with consequent unreasonable
increased in the elevation of the regulatory flood profile. "It is
therefore necessary in order to prevent such unreasonable and detrimental
affects to consider that the floodway on such streams shall include not only
the area covered by moving flood waters of the regulatory flood as hereinabove described
but so much of the adjacent flood hazard area as is necessary to ensure that
the peak regulatory flood discharge will not be significantly increased by
reason of loss of such natural valley storage. "The volume of natural valley
storage, and consequently the extent of the adjacent flood hazard area to be
included within the floodway, will be determined to the point where no
significant increase in the peak regulatory flood discharge occurs as a result
of loss of valley storage in the flood hazard area, as determined appropriate
flood-routing procedures."
31. The
guidelines identified in finding of facts 3 have not been promulgated in
accordance with IC 4-22-2. In accordance with IC 4-22-2-2(a), the guidelines
are invalid, void and of no force or effect. If the guidelines had been
promulgated, the final order in this administrative action would not be
affected.
32.
As defined in 310 IAC 6-1-3(h), "floodplain" means the area adjoining
the river or stream which has been or may hereafter be covered by floodwater.
33.
During a regulatory flood on Schuh Ditch, waters
would remain within its banks, except for two areas immediately west of and
contiguous to Schuh Ditch, which would also be
inundated.
34. During
a regulatory flood, the area within the banks of Schuh
Ditch would be reasonably required to efficiently carry and discharge its
floodwater.
35.
The areas immediately west of and contiguous to Schuh
Ditch (which are located outside its banks and which would be inundated during
a regulatory flood) store a quantity of floodwater. The storage capacities of
the two areas are insignificant and would not be required to efficiently carry
and discharge the floodwater of Schuh Ditch.
36.
The two areas referenced in finding of fact 35 would constitute a portion of
the floodplain of Schuh Ditch during a regulatory
flood.
37.
The two areas referenced in findings of fact 35 are not located within the
floodway of Schuh Ditch.
38.
The floodway of Schuh Ditch is confined to the banks
of Schuh Ditch.
39.
The relocation of Schuh Ditch anticipated in the
application would constitute a relocation of the floodway for Schuh Ditch.
40.
The flood control act neither authorizes nor prohibits floodway relocation.
41. As provided in IC 13-2-22-2, a purpose of
[VOLUME 2, PAGE 44]
the
flood control act is that "the alteration of natural or present
watercourses of all rivers and streams in the state should be regulated,
supervised and coordinated in design, construction and operation according to
sound and accepted engineering practices so as to best control and minimize the
extent of floods and reduce the height and violence thereof."
42.
In implementing the provisions of the flood control act with respect to this
administrative action the Commission is exercising a regulatory or police power
as authorized by the Indiana General Assembly.[FOOTNOTE ii]
43.
Exercise of a regulatory power by the Commission cannot extend beyond its
statutory authority. The Commission cannot prohibit the relocation of a
floodway unless the relocation violates the flood control act or another
statute administered by the Department.
44.
The relocation of a floodway is not an activity which of itself violates a
statute administered by the Department.
45.
The relocation of Schuh Ditch and its floodway as
anticipated by the permit does not itself violate the flood control act or
another statute administered by the Department.
46.
The permit would authorize the addition of two ninety (90) degree turns and one
forty-five (45) degree turn within the portion of Schuh
Ditch located on the site.
47.
An increase in friction will occur with the change in direction of the waters
of Schuh Ditch around the additional bends referenced
in finding of fact 46.
48.
The increase in friction which would occur as a result of the additional bends
will reduce the velocity of Schuh Ditch on the site.
49.
The additional bends referenced in findings of fact 46, particularly the ninety
degree (90) turns, would pose increased erosion problems.
50. In
the absence of erosion control mechanisms, such as the placement of rip rap or
crushed stone, accelerated erosion would occur on the outside of a curve and
accelerated sediment deposition would occur on the inside of a curve.
51.
A significant maintenance program is required for the continued integrity of
rip rap or crushed stone, because without adequate maintenance, as water moves
around it, the rip rap or crushed stone will slide downhill and become
ineffective.
52.
Serious erosion resulting from inadequate maintenance at the location of the
additional bends could adversely affect the efficiency or unduly restrict the
capacity of the Schuh Ditch floodway.
53.
Because of the erosion potential posed by the additional bends referenced in findings
of fact 46, issuance of the permit should be made conditional upon an adequate
schedule of maintenance at those locations to be performed at the expense of
the applicant.[FOOTNOTE iii]
54.
An increase in friction will occur because of the placement of rip rap or
crushed stone at the additional bends.
55.
If the additional bends are properly maintained, the increased friction which
results with the change in direction of the waters as referenced in findings of
fact 47, and with the placement of rip rap or crushed stone as referenced in
findings of fact will not significantly increase flood stages on Schuh Ditch.
56.
The permit would authorize an altered configuration for Schuh
Ditch which would lengthen the waterway by 1,100 feet on the site.
57. By
lengthening Schuh Ditch on the site, its gradient
will be reduced.
58.
The velocity of waters contained within Schuh Ditch
will be decreased because of the reduction of the gradient.
59. The
reduction of velocity referenced in findings of fact 58 will result in a
reduction of the water carrying capacity for Schuh
Ditch.
60.
The reduction of velocity will result in a decreased capacity to carry
sediment.
61.
Where sediment is not carried through Schuh Ditch,
then that sediment will be deposited along its bed.
62.
The carrying capacity of Schuh Ditch is also impacted
by the quality of maintenance (its resulting roughness coefficient.)
63.
The existing Schuh Ditch is not well maintained.[FOOTNOTE iv]
64.
The lengthening of Schuh Ditch could adversely affect
the efficiency or unduly restrict the capacity of its floodway, if the waterway
is not well maintained in the future.
65.
Issuance of the permit should be made conditional upon an adequate schedule of
maintenance to uphold the carrying capacity of the relocated portion of Schuh Ditch.[FOOTNOTE v]
66.
If the relocated portion of the ditch is properly maintained, that relocation will
not significantly increase flood stages and will not adversely affect the
efficiency or unduly restrict the capacity of the Schuh
Ditch floodway.
67.
In addition to administration of the flood control act (IC13-2-22), the
Department is vested with other statutory powers and duties. Included is the
power and duty to "investigate lakes and streams.
. .for the purpose of protecting them against impurities or pollution by
industrial, municipal or
[VOLUME 2, PAGE 45]
other sewage waste." IC
14-3-1-14(a)(8)[FOOTNOTE
vi]
68.
The Department has the "authority and responsibility to protect and
properly manage the fish and wildlife resources of the state. . . . [Generally],
wild animals. . .shall be the property of the people
of the state of Indiana. . . ." IC 14-2-1-2.
69.
A drainage tile which exits a stock watering pond or wetland located on the southwestern
corner of the site is presently blocked. The tile would discharge into Schuh Ditch, if the tile were functional.
70.
Other drainage tile may intersect Schuh Ditch within
the site, but have not been adequately identified.
71.
Issuance of the permit should be made conditional upon the applicant, before
relocating the existing Schuh Ditch, making a
thorough search for drainage tiles within the site.
72.
Issuance of the permit should be conditioned upon the applicant providing the
Department with specifications to compensate for harm under IC 13-2-22, IC
14-2-1 and IC 14-3-1-14 (a)(8)[FOOTNOTE
viii] which might reasonably result
from the severance of a functional drainage tile, if a drainage tile is located
following a thorough search.
73.
The initial determination for issuance of the permit included the following
limitations and conditions:
(1) no felled trees, brush, or other debris should be left in
the floodway of Schuh Ditch;
(2) all disturbed areas should be effectively protected from
erosion during the construction period;
(3) disturbed areas should be suitably revegetated
with grasses and legumes beneficial to wildlife;
(4) two rows of autumn olives and one row of red pines should be
planted along both sides of the relocated ditch 75 feet from the top of the
bank;
(5) a sediment trap should be constructed at the downstream end
of the project;
(6) the project should be approved by the Indiana Environmental
Management Board; and
(7) the project should be approved by the Marshall County
Drainage Board.
74.
Each of the conditions contained in the initial determination for issuance of
the permit is appropriate and should be included as a permit condition.
75.
No significant detrimental effects upon fish, wildlife and botanical resources will
result to the portion of the Schuh Ditch floodway
within the site as a result of its relocation under the permit.
76.
No significant detrimental effects will result to fish downstream from the site
because of the relocation of Schuh Ditch.
77.
Located within the site are approximately twenty two acres of wetlands,
including a pond (hereinafter the "pond")[FOOTNOTE viii] in the southwestern
corner of the site and ephemeral wetland areas.
78.
The pond was established after 1954 by a former property owner to provide a
source for livestock watering.
79.
The wetlands located within the site are part of an interacting system of
wetlands located on and off site.
80.
The wetlands on site and the interacting system of wetlands are influenced by
the flow of Schuh Ditch.
81.
Plans by the applicant for modification of drainage on the site included the construction
of a new ditch to facilitate the discharge of surface and ground water into Schuh Ditch. The new ditch would commence at the
southwestern corner of the site, would flow north, would include a ninety
degree (90) turn in the northwestern corner of the site and would then flow
easterly until its confluence with Schuh Ditch,
approximately halfway between the eastern and western boundaries and just south
of the northern boundary of the site. The new ditch has been referenced on
plans submitted by the applicant as Swale "B" and will hereinafter be
identified as Swale B.
82.
Swale B would be located entirely within the site.
83.
The construction of Swale B would result in establishment of a new floodway
attendant to Swale B.
84.
Substantial evidence was not presented as to the boundaries of the floodway of
Swale B.
85.
Because Swale B would enter the floodway of Schuh
Ditch at the confluence of Swale B and Schuh Ditch, a
permit is required under the flood control act for the construction of Swale B.
86.
The construction of Swale B would accelerate the discharge of water from the
site into Schuh Ditch.
87.
The accelerated discharge of water into Schuh Ditch
occasioned by the construction of Swale B would be insignificant.
88.
The construction of Swale B as detailed in the plans submitted by the applicant
would not adversely affect the efficiency or unduly restrict the capacity of
the floodway of Schuh Ditch.
89.
The relocation of Schuh Ditch and the construction of
Swale B will destroy the pond and most of the acreage of wetlands on the site.
90.
The wildlife and plant life present within the pond and existing wetlands are
limited to species which are common to Indiana.
91.
The wetlands existing on the site present a valuable natural resource.
92.
Recent plans and specifications of the applicant include a reconstructed pond
on the site to partially mitigate the harm
[VOLUME 2, PAGE 46]
occasioned by the proposed project.
93.
Placement of the reconstructed pond should be accomplished in consultation with
the Department to maximize wildlife and plant life values and should be made a
condition of the permit.
94.
The construction of Swale B may harm interacting wetlands located north and
west of the site, including wetlands within properties owned by the Claimants or
Intervening Claimants.
95.
Issuance of the permit should be conditioned upon submission by the applicant
of plans and specifications with respect to Swale B for maintenance of the
status quo for drainage west and north of Swale B.
96.
The Reconstruction of Schuh Ditch (Swale A) may harm
interacting wetlands north and east of the site, including wetlands within
properties owned by the Claimants and Intervening Claimants.
97.
Issuance of the permit should be conditioned upon submission by the applicant
of plans and specifications with respect to relocated Schuh
Ditch for maintenance of the status quo for drainage north and east of the relocated
ditch.
98.
The relocation of SchuhDitch as anticipated in the
permit with conditions will not adversely affect the efficiency or unduly
restrict the capacity of the ditch because:
(a) the ditch will be lengthened;
(b) the ditch will have additional 90 degree bends and an
additional 45 degree bend;
(c)existing drainage tiles will be impaired; or
(d) the relocated ditch will not be adequately maintained.
99.
No finding is made as to the environmental impact a landfill proposed within
the site may have.[FOOTNOTE ix]
100.
The relocation of Schuh Ditch will not result in unreasonably
detrimental effects upon fish, wildlife and botanical resources.
101.
A permit under the flood control act can be lawfully issued to a person other
than the landowner.[FOOTNOTE x]
102.
The permit should embody safeguards or restrictions not incorporated in the
initial determination for issuance of the permit as delineated in these
findings of fact.
103.
No finding is made as to whether the applicant can comply with conditions
imposed by the permit. The finding is unnecessary to a final determination of
this administrative action.
104.
The relocation of a floodway is not prohibited by IC 13-2-22.
FOOTNOTES
i.
The applicability of the open door law to the administrative adjudication act
is arguable. The AAA sets forth specific notification requirements which may
supersede those set forth under the open door law. See, by way of illustration,
sections 5 and 25 of the administrative adjudication act. The public nature of
a hearing under IC 4-22-1 is specifically guaranteed by IC 4-22-3-1. But
immediately before the submission of evidence at a hearing scheduled in the
instant action on March 13, counsel for the Claimants and Intervening Claimants
suggested that the failure on that date by the Department to comply with IC 5-14-1.5
could render the hearing process void. The notification requirements of the
open door law apply to a "meeting" of the Department. According to IC 5-14-1.5-2(c), a "meeting" is a
"gathering of a majority of the governing body of a public agency for the
purpose of taking official action upon public business." Under
section 2(d), "official action" include the receipt of "information. . .on public business" and the making of
"recommendations pursuant to statute." Under IC 5-14-1.5-2(b),
"governing body" means the Commission and "any committee
appointed by the governing body. . .to which authority
to take official action upon public business has been delegated." IC 5-14-1.5-2(e). A committee is a person or persons to
whose consideration or determination certain business is referred or confided,
and need not consist of more than one person. Farrar v. Eastman 5 Me. 345, 350.
If the terms of the open door law are strictly interpreted, they would apply to
a hearing conducted by a hearing officer under IC 4-22-1. The argument follows
that a hearing officer is [the majority of] a committee-of-one appointed by the
governing body (the Commission) to conduct official action (receiving
information and making recommendations pursuant to the AAA) upon public business.
A hearing officer is conducting a "meeting" under the open door law
when conducting a hearing under the administrative
[VOLUME 2, PAGE 47]
adjudication act. An action may be filed
in court by any Indiana Citizen to enjoin a violation of the open door law
"or to declare void any action taken at. . .any
meeting of which notice is not given in accordance with section 5. . . . The
plaintiff in such suit need not allege or prove special damage different from
that suffered by the public at large. . . . In any action filed under this
section, a court may award reasonable attorney fees, court costs, and other
reasonable expenses of litigation . .if. . .the plaintiff prevails and the court finds that
defendant's violation is knowing and intentional. . ." IC
5-14-1.5-7. The complexities of this administrative action make likely
judicial review and appeal to a higher court by one or more aggrieved parties.
Important substantive issues are raised which beg final resolution. With the
question posed by counsel on March 13 concerning the open door law, it was then
determined to continue the proceedings rather than risk reversal upon a
procedural basis. The continuance was occasioned by uncertainty as to
applicability of the open door law to a hearing under the AAA and should not be
constructed as a finding that the open door law controls. The notification
given under the open door law for the April 15 hearing was motivated by the
same considerations.
ii.
The flood control act was an ambitious undertaking of the 1945 General
Assembly, and its provisions include aspects which are not regulatory in
nature. See, for example, IC 13-2-22-2(d) which authorizes a state master plan
"to control floods, and to accumulate preserves and protect the water
resources." The non-regulatory aspects of the flood control act are not
germane her.
iii.
Maintenance, as well as initial construction, is an integral concept covered by
the flood control act. See IC 13-2-22-13(a) as quoted in finding of fact 21.
iv. Victor Wenning
testified the existing ditch is "not in a real good state of repair."
v.
The relocated portion of Schuh Ditch is referenced on
plans submitted by the applicant as Drainage Swale "A."
vi.
The agency now vested with primary authority for the protection of Indiana
waterways is the Stream Pollution Control Board. See, IC 13-8 and IC 13-1-3.
But the provisions of IC 14-3-1-14(a) (8) have not been repealed by the General
Assembly. Where there are two statutes on the same subject, they should be
constructed together so as to harmonize and give effect to each. Wayne Township v. Lutheran
Hospital (1974), 160 Ind. App. 427, 312 N.E. 2d 120. The effort
should be made to five effect to IC 14-3-1-14(a)(78),
particularly in the context of other Departmental duties.
vii.
In implementing each of these statutory enactments, care should be taken to
balance the common law and fundamental rights of affected persons, including
the Intervening Respondents. Not the least of these rights is the right to acquire,
hold and dispose of property. Where harm to fish and wildlife resources will
result to land owned by an Intervening Respondent as a result of his or her
lawful and beneficial use of that land, some of that harm may be acceptable. A different
circumstance is presented where harm results to property owned by another
person. See, generally, McKinster v. Sager (1904) 163 Ind. 671, 72 N.E.
854: The provisions of the U.S. Constitution regarding a citizen's rights in
private property will be constructed to secure and safeguard those rights.
Also, Shupe v. Bell (1957), 127 Ind. App. 292, 141
N.E. 2d 351: Statutes which change or diminish fundamental rights must be
constructed strictly both as to cases embraced within their terms and as to
methods to pursued.
[VOLUME 2, PAGE 48]
viii. The pond referenced here is the same pond identified in finding of fact
69.
ix. Pursuant
to IC 13-7, solid waste management is made the province of the Environmental Management
Board. The permit is expressly made contingent upon the applicant securing approval
of that agency. Under ordinary circumstances the Department must defer to the expertise
of the Environmental Management Board in rendering determinations concerning
the propriety of a landfill site and its maintenance. Siting
of the Marshall County Landfill is the controversy which is central to this
administrative action, and its importance is understood, but the controversy
must be resolved in the appropriate agency. See also IC 13-2-22-6: "The commission
shall have the power to utilize any agency of the state in connection with its investigation,
studies and preparation of plans, or the performance of other duties. . .
."
x.
Reference is made to the argument of the Respondent on page 4 of its Motion to
Limit Issues and Motion for Reconsideration of Order of Proof as filed on
November 26, 1984. " . . .13-2-22-13 does not
require that a person be a land owner in order to apply for a permit. The statute
[IC 13-2-22-13(c)] specifies that: "Any person desiring to: (A) erect,
make, use, or maintain a structure. . ." [Emphasis by author deleted.]
There is no statement or construction in the statute that ownership is a
necessary prerequisite to application.