The approval of floodway construction permit L-12,452 by the Department of Natural Resources is affirmed.
FINDINGS OF FACT
1. The Department of Natural Resources ("DNR") is an agency within the meaning of IC 4-21.5.
2. The Natural Resources Commission ("NRC") is the ultimate authority within the meaning of IC 4-21.5 for requests for administrative review taken from a DNR decision to grant or deny permits to construct in a floodway.
3. IC 4-21.5 and IC 13-2 apply to these proceedings.
4. On or about April 4, 1991 Indy Sand and Gravel Co. ("Permittee") filed an application for a permit (L-12,452) to construct two levees in the floodway of Buck Creek in Marion County, Indiana, with the DNR.
5. On September 17, 1990, the DNR purportedly granted permits L-12,452.
6. Four residents of the area (Inskeep, Snyder, Phillips, and Toops) filed requests for administrative review of this agency decision during October of 1990.
7. While several of the requests may have been untimely, at a prehearing conference in November of 1990, the DNR determined that there was a likelihood that not everyone in the neighborhood required to receive notice of the permit application had been sent a notice.
8. The permittee agreed to reissue the notices of the filing of the permit application and did so in February of 1991.
9. No further objections were received and the DNR determined there was no reason not to issue the permit and proceed with the administrative appeal of the four parties who filed requests for review.[FOOTNOTE 1]
10. The permit in question allows the permittee to construct two levees in the floodway of Buck Creek.
11. Most of the construction of the northern-most levee will take place in the flooplain rather than the floodway; and thus, only a small part of the levee requires a DNR permit.
12. A small portion of the norther-most levee borders on the floodway on the west side of the creek.
13. The southern-most levee is a 300 foot strip along the floodway which connects two high segments of bank on the west side of the creek.
14. The purpose of the two levees is to close the entrances to a "borrow pit" along the creek so that the permittee can mine gravel without flooding.
15. The area being cut off from the creek is an ineffective flow area that is generally surrounded by high ground so that flood water can collect in the area to be mine but does not flow through in any material way.
16. The computer modeling of this particular plan showed the levees will have no adverse effect on the floodway.[FOOTNOTE 2]
17. The proposed gravel pit is not in the floodway.
18. The site in question is a previously disturbed site.
19. There are no endangered species of animal or plant life in this floodway.
20. The forest growth in the permit area is young so no major wildlife habitat will be lost.
21. Further, the permit requires that the permittee revegetate the site after construction and that a 99-foot riparian strip from the bank be maintained in its natural state.
22. No significant wetlands are involved.
23. There is no danger to fish from this project. In fact, it may be an aid to fish habitation in that the main portion of the stream will remain channeled.
24. In short, the evidence shows there is no adverse effect on the floodway; no danger to persons or propert; and no danger to fish, wildlife, or botanical resources.
25. The grant or denial of a floodway construction permit is governed by IC 13-2-22-13.
26. IC 13-2-22-13 sets forth the grounds for which the DNR may deny a floodway construction permit. Those grounds are:
a. the construction unduly restricts the capacity of the floodway;
b. the construction constitutes an unreasonable
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hazard to the safety of life or property; or
c. the construction results in unreasonably detrimental effects on fish, wildlife, or botanical resources.
27. The evidence shows that the two levees will not cause any of the harm listed in Finding 26.
28. Most concerns voiced by the residents dealt with the increased truck traffic in residential neighborhoods, dust, and other types of problems associated with industrialization.
29. While it is easy to sympathize with persons who do not want to live next to gravel pits, the DNR can only deal with matters specified by the Legislature and in this case, those matters are the effects on this floodway.
30. The decision by the DNR to approve and issue this floodway construction permit was a correct decisions.
FOOTNOTES
1. Various claimants showed up for different proceedings depending on who could get off work. Their interests and concerns were identical. Only Terri Phillips and Mrs. Snyder actually appeared at the hearing but they voiced concerns of the residents in general and were representative of the persons affected.
2. The DNR rejected an earlier permit application by this same permittee for this site because the permittee wanted to build a 4,200 feet levee on the west bank. This project would have adversely affected the floodway. The applicant then revised his plans and resubmitted them.