The decision of the Department of Natural Resources to grant Floodway Construction Permit G-12,612/DR 201 with conditions 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 matters involving administrative review of floodway construction permits.
3. IC 4-21.5 and IC 132 apply to these proceedings.
4. On November 9, 1989, the Steuben County Drainage Board ("Drainage Board") filed an application with the DNR to construct in the floodway of Pigeon Creek to improve stream flow and alleviate the annual flooding problem in Hogback Lake and Golden Lake in Steuben County, Indiana.
5. This application, denominated G-12,617/DR 201 by the DNR, would allow the Drainage Board to remove a rock dam in the creek and dredge the stream bed at a .05% grade from County Road 255 to the outlet of Hogback Lake. The proposed project would dredge approximately 2 1/4 miles of stream bed.
6. This application also contained a petition to the DNR to install a control structure at the outlet of Hogback Lake.
7. Additional information was requested and the application completed on August 7, 1990.
8. On January 14, 1991, the DNR granted permit number G-12,617/DR 201 with conditions.
9. The conditions prohibited any inchannel work from Hogback Lake to the County Road 600 West bridge and any inchannel work between Hogback Lake and Golden Lake.
10. The other conditions relate to revegetation, sediment traps, erosion prevention, and protection of fish during the spawning season.
11. The five Claimants all filed requests for administrative review of the DNR action in granting this permit.
12. Mr. Barton, Mr. Rhodes, and Mr. Aikman are homeowners ("homeowners") on the two lakes (Golden and Hogback) whose flooding problems prompted this application by the Drainage Board.
13. All three objected to the conditions which prohibited inchannel work in certain areas around Hogback Lake.
14. The West Otter Lake Owners ("West Otter") appealed the grant of the permit because West Otter Lake is downstream of the project and also has a flooding problem.
15. After listening to the testimony of DNR witnesses and their explanation of the computer models and techniques of surcharge prediction, West Otter announced they were satisfied and no longer opposed the project.
16. Mr. Clarke and Mr. Chrysler ("Clark") appealed the possible removal of a cattle crossing bridge and voiced environmental concerns, particularly about a "mudflat area" on the shore of Hogback Lake.
17. Pigeon Creek connects a number of lakes in Steuben County.
18. The Pigeon Creek drainage area has a serious flooding problem.
19. Not only is this a problem for those owning lake cottages but recent floods have covered county roads making them impassable and doing damage to them.
20. This project is phase I of a number of projects which will be done as funding permits.
21. IC 13-2-22-13, the Flood Control Act, ("FCA") sets forth the criteria the DNR and NRC must examine in order to justify the grant (or denial) of a floodway construction permit. To grant such a permit, the applicant must clearly show:
a. the project will not adversely affect the floodway;
b. the project will not constitute an unreasonable hazard to the safety of life and property; and
c. the project will not result in unreasonably detrimental effects on fish, wildlife, or botanical resources.
22. The lakes in question in the
[VOLUME 6, PAGE 11]
Pigeon Creek drainage basin are public freshwater lakes within the meaning of IC 13-2.
23. The legal lake levels of Hogback Lake and Golden Lake established pursuant to IC 13-2-13-1 are both 948.50 feet.
24. IC 13-2-15-1 and 3 ("Ditch Act") require that a ditch or drain which is lower than the legal lake limit may not be dredged, reconstructed, or repaired without a permit from the DNR if the project is within 1/2 mile of a lake.
25. Pigeon Creek acts as a lake drain for both Golden Lake and Hogback Lake.
26. The project as request by the Drainage Board would involve dredging and widening the drain where it connects with Hogback Lake and where it connects Hogback and Golden Lakes.
27. The maximum proposed elevation of the bottom of the drain is approximately 946.8 feet and thus is lower than the legal lake levels.
28. The existing level of the bottom of the drain is approximately 947.2 feet and this is below the legal lake level.
29. The Ditch Act requires the DNR to deny any permit which would lower the lake level below the legal lake limit.
30. The un-rebutted evidence at hearing presented by the DNR is that allowing the project to proceed as proposed could realistically cause the actual level of Hogback Lake to drop nine inches below the legal lake level.
31. At the hearing, the Drainage Board raised the issue of a possible conflict with IC 36-9-27. (It should be noted that the Drainage Board did not appeal any conditions and is a party to this action only as an intervenor. Nevertheless, the issue raised is important and needs to be resolved.)
32. IC 36-9-27 appears in general to require the Drainage Board to maintain drains and reconstruct them as necessary.
33. However, there is no conflict. IC 36-9-27 deals with ditches and drains in general.
34. The Ditch Act is a limitation placed by the legislature that applies only to ditches and drains within 1/2 mile of a lake.
35. The Ditch Act is a special exception to IC 36-9-27 enacted to preserve the balance between the need for flood control drainage and the need to protect lake levels.
36. The evidence presented at the hearing shows that the proposed project would materially affect the lake level and the DNR was required to prohibit inchannel work within 1/2 mile of the lake. The restricted areas are within 1/2 mile of either Hogback Lake or Golden Lake or both.
37. The evidence presented at the hearing shows that the project as approved will provide some flood relief for Hogback and Golden Lakes without endangering the general lake levels.
38. With respect to the FCA, the evidence presented at the hearing showed that the project as approved by the DNR would not increase the downstream surcharge as originally feared by West Otter and West Otter acknowledged this fact at the hearing.
39. The evidence presented shows the project as approved would not endanger life or property.
40. With respect to fish, wildlife, and botanical resources, the floodway in question is not a floodway in its natural state. Much of the area is previously disturbed ground-so it is not currently prime wildlife area. The evidence shows that with conditions attached which require revegetation, minimization of erosion, sediment control, and work restrictions during fish spawning season, the project will not unduly harm fish, wildlife, or botanical resources.
41. The one environmental area of concern involves "mud flats".
42. This problem was resolved by imposing the Ditch Act prohibitions on inchannel work.
43. The mud flats need water to continually rise and lower. This may have been a problem if the actual lake level had been permanently reduced below the legal lake level as might well have happened under the original proposal. The project as approved will prevent a substantial lowering of the average lake level and while it will reduce the needed flooding, there is little danger that the mud flats will fail to get the needed fluctuation to support wildlife.
44. one other issue of note is Clarke's concern about his cattle crossing.
45. The original application filed by the Drainage Board (DB exhibit 1) does not mention this.
46. The first time the Clarke bridge appears in a permit related document is in the January 14, 1991, report of the Department. (Dept. Exhibit B)
47. This report does mention the Clarke crossing in the project description and states it will be removed.
48. Nothing in the permit as issued reflects the fact that the crossing is to be removed and, in fact, the Drainage Board is specifically prohibited from performing inchannel work at the site of the crossing which is in the floodway and 725 feet from Hogback Lake.
49. The DNR has neither approved nor disapproved the removal of the crossing and its removal or replacement is a matter of private negotiations and litigation between Clarke and the Drainage Board under IC 36-9-27. DNR approval will be required only in
[VOLUME 6, PAGE 12]
the event that inchannel work must be performed to remove or replace.
50 During the hearing, the parties made reference to a flood control structure to be placed near the outlet of Hogback Lake.
51. The application for the permit filed by the Drainage Board included a petition from residents for an outlet control structure.
52. The application did not include plans and specifications for such a structure and the application indicates it is a request to the Department to build the outlet control structure.
53. Evidence produced by the Drainage Board indicates that the proposed cost of this project does not include cost of an outlet control structure.
54. Accordingly, the outlet control structure was not a part of the formal application and the decision by the DNR to separate the action on the petition for a control structure from the rest of the application and begin a study for some future recommendation was a legally correct decision.