Content-Type: text/html 91-098w.v6.html

CADDNAR


[CITE: Yater v. Department of Natural Resources, 6 CADDNAR 168 (1994)]

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Cause #: 91-098W
Caption: Yater v. Department of Natural Resources
Administrative Law Judge: Teeguarden
Attorneys: Robak; Davidsen
Date: October 19, 1994

ORDER

[NOTE: ON AUGUST 15, 1995, HANCOCK CIRCUIT COURT, (30C01-9411-CP-00457), UPHELD THE ALJ'S DECISION. FINDINGS AND CONCLUSIONS OF LAW ARE SET FORTH FOLLOWING THE ADMINISTRATIVE ACTION. ON SEPTEMBER 18, 1995, YATER FILED MOTION TO RECONSIDER ASKING COURT TO MAKE SPECIFIC FINDINGS OF FACT. YATER ALSO SOUGHT APPEAL IN CAUSE NUMBER 30A04-9512-CV-497. ON MARCH 8, 1996, COURT OF APPEALS "DISMISSED WITH PREJUDICE" DUE TO "PREMATURE FILING."

ON FEBRUARY 21, 1996, HANCOCK CIRCUIT COURT ENTERED FINDINGS UPHOLDING FINAL ORDER OF THE NATURAL RESOURCES COMMISSION. YATER SOUGHT AN APPEAL IN CAUSE NUMBER 30A01-9605-CV-168. ON APRIL 17, 1997, APPEAL COURT DENIED REHEARING. ON JUNE 9, 1997, YATER REQUESTED TRANFER. ON AUGUST 26, 1997, TRANSFER WAS DENIED.]

The decision of the department of natural resources to deny Floodway Construction Permit application G-12,881 is affirmed.

The decision of the department of natural resources to deny Floodway Construction Permit application G-13,041 is affirmed.

FINDINGS OF FACT

1. The Indiana Department of Natural Resources ("DNR") is an agency within the meaning of IC 4-21.5.

2. IC 4-21.5, IC 13-2, and 310 IAC 6 apply to these proceedings.

3. The DNR is the agency charged with the responsibility of regulating floodways in Indiana.

4. The Natural Resources Commission ("NRC") is the ultimate authority within the meaning of IC 4-21.5 in matters involving floodway construction permits.

5. At all times relevant to these proceedings, David G. Yater ("Yater") owned property in the vicinity of Brandywine Creek in Hancock County, Indiana, which he was attempting to develop as a residential subdivision.

6. On September 12, 1990, Yater submitted floodway construction permit application G-12,881 ("Permit I") to the DNR.

7. On November 13, 1990, Yater submitted floodway construction permit application G-13,041 ("Permit II") to the DNR.

8. Permit I involved the placement of fill along the banks of the creek just south of I-70 and east of State Road 9, on the south side of County Road 200N and west side of County Road 250E for the purpose of constructing approximately ten residences.

9. Permit II involved the placement of fill along the banks of the creek on the north side of County Road 200N for the purpose of building four residences.

10. On March 4, 1991, the DNR denied both permit applications for the reason that IC 13-2-22 prohibits the erection of a residence in a floodway.

11. On March 26, 1991, Yater filed petitions for administrative review of the denials of both permits.

12. A considerable amount of testimony was received, and much of the testimony was expert testimony.

13. The issues to be resolved in these matters appear to be the following:

a. was it proper for the DNR to prohibit the placement of fill in a floodway for the purpose of raising the elevation of the lot so that a residence could be constructed inside the floodway?
b. Was the floodway properly delineated (i.e., are the Federal Emergency Management Agency ("FEMA") floodway designations the same as the state of Indiana's definition of floodway, and if not, which is correct?

14. The DNR contends that it has no choice but to rely on the published FEMA Flood Insurance study map in establishing the floodway for Brandywine Creek, and therefore, most of Yater's project will take place in the floodway.

15. The DNR contends that the only way the floodway can be changed is to request a revision for FEMA.

16. The DNR further contends that the placement of fill in the floodway for the sole purpose of raising the elevation out of the floodway so a residence can be constructed is a violation of the Flood Control Act, IC 13-2-22, ("FCA").

17. Yater contends that the Indiana Legislature has defined the term "floodway" in the FCA and the DNR is bound by that definition if it produces a result materially different from the FEMA map.

18. Yater then contends that much of his property is not in the floodway under the Indiana definition.

19. Finally, Yater contends that the placement of fill in the floodway in order to construct a residence above the 100 year flood elevation is not prohibited by FCA's prohibition against construction of residences in the floodway.

20. Exhibit 2 (Minutes of the March 1988 NRC Meeting) shows the general text of a resolution adopted by the NRC to interpret the FCA to prohibit the placement of fill in a floodway for the

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purpose of constructing a residence and treat the construction of a residence on fill in a floodway the same as the construction of a residence in the floodway without fill.

21. IC 13-2-22-13 makes it unlawful " . . . to erect, use, ... a permanent structure for use as an abode or place of residence. in a floodway."

22. In the very recent case of Welch v. DNR, (1994), 7 Caddnar 22, the administrative law judge held that the 1988 NRC resolution amounted to rule making without going through the IC 4-22 process including the public input and comment process and public notice; and therefore, could not be enforced.

23. The NRC rejected that portion of the decision in Welch, and upheld the application of the resolution. This case is currently on judicial review in the Marion County Superior Court.

24. Until such time as a court of competent jurisdiction overturns the NRC decision, or the Legislature changes the FCA to clearly permit the construction of a residence on fill in a floodway, the NRC 1988 resolution must be upheld and any such floodway construction permit application seeking to place fill in a floodway in order to construct dwellings must he denied.[FOOTNOTE 1]

25. The Indiana Legislature has defined the term "floodway" in IC 13-2-22-3 as " . . . the channel of a river or stream and these portions of the flood plains adjoining the channel, which are reasonably required to efficiently carry and discharge the flood water or flood flow of any river or stream."

26. A permit under the FCA is only required for construction in a floodway. In other words, for any area along a stream outside the floodway (even if still in the flood plain), fill may be placed or residences constructed without an FCA permit.

27. One of the few things that both parties agreed on in their briefs is that floodway mapping is not an exact science, and is dependent to some extent on "educated guesses".

28. This is particularly true in an area like Brandywine Creek where there is not monitoring or flow data available.

29. Exhibit's A and B show that the DNR assumed that the 100 year frequency flood would reach an elevation of about 873.4 feet. . . " for permit I" and "of about 874.6 feet . . ." for permit II. Both numbers were reached as a result of examining the City of Greenfield Flood Insurance Study which was completed by FEMA in June of 1979 and revised in 1987. See Exhibit 3.[FOOTNOTE 2]

30. Yater produced considerable evidence, to be summarized later, that these numbers are incorrect.

31. The DNR, while not conceding that the FEMA study is not accurate (or is no longer accurate), argues that because of federal law, it makes no difference. The DNR contends that once FEMA has delineated a floodway for a specific stream, the state must use that floodway until FEMA revises its map.

32. The nuts and bolts of the FEMA floodway program are found in 44 CFR.

33. 44 CFR 59.1 defines floodway as ". . . the channel of a river or other water course and the adjacent land areas that must be reserved in order to discharge the base flood [i.e. 100 year flood] without cumulatively increasing the water surface elevation more than a designed height.

34. 44 CFR 59.24 provides that a community which does not conform to federal regulations can lose its eligibility for the sale of flood insurance.

35. 44 CFR 60 et al., sets forth the minimum criteria for floodplain management to remain eligible for flood insurance.

36. 44 CFR 60.3 discusses flood elevation information, and specifically requires the use of final base flood elevation of the agency.[FOOTNOTE 3]

37. 44 CFR 60.7 recognizes that FEMA may need to revise its mappings based on new data.

38. 44 CFR 60.11 defines the state as a community, and thus subject to the regulations. If the state acts in a manner contrary to the Federal Regulations, it jeopardizes the entire flood insurance program in the state.

39. 42 USC 4001 et seq, and particularly 42 USC 4128, appear to authorize the relevant regulations in 44 CFR.[FOOTNOTE 4]

40. The executive branch of government (which includes the DNR and NRC) is not in a position to jeopardize the state's insurance program with FEMA on the basis of one adjudication of an FCA permit.

41. The DNR's contention that it must follow the approved FEMA mapping until FEMA publishes a revision is correct.

42. Yater's sole remedy is to request a revision of the FEMA study.

43. Even if Yater's argument is correct, and a decision rendered in his favor on the issue of whether or not the use of the FEMA regulatory flood elevations is required, it probably does not aid him a great deal.

44. Elevation maps of the areas in question (Exhibits A-l and B-1) show the four lots in permit II to have existing elevations of less than 870.4 feet. Lot one's average elevation is approximately 866 feet. The remaining three lots have a significant portion of area less than 870 feet in

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elevation.

45. In permit I, the DNR found that only Lots 19-29 were in the floodway, and Exhibit B-1 shows the current elevation near County Road 200N to be approximately 872 feet and slope down from there to about 868 feet.

46. 310 IAC 6-1-7(c) sets forth a presumption that "all bridges will be assumed to remain open and free of debris and ice, unless local conditions indicate otherwise. Where possible, the regulatory flood profile shall be correlated with known high water marks."

47. [Finding 47 is stricken.]

48. The DNR reviewed available historical high water mark data to assist in calculating the creek's coordinated discharge utilized in other computer modeling of flood flows. No gauge is present on the creek.

49. Neighbors testified that in over 57 years, no flood has affected the County Road 200N bridge and roadway.

50. The DNR asserts that these statements lack sufficient scope or reliability to provide data to be used in calculating the 100 year flood elevation which is a statistical calculation.

51. The NRC's adopted rules say otherwise. Essentially, there is a presumption that a regulatory flood event will not be affected by obstructions to a bridge unless there is evidence to the contrary. There certainly is no evidence to the contrary in this case.

52. The elevation of County Road 200N (and the old bridge) is approximately 872.5 feet.

53. Other expert testimony challenged the stream bed elevation (stating it is actually lower than shown on the FEMA map) and the peak flow data.

54. The evidence most favorable to Yater's position showed a difference of approximately three feet in the 100 year flood elevation.

55. One expert testified that the known high water mark in the area was 871.1 feet, and that should be close to the 50 year event.

56. The DNR's expert more or less agreed that the current expected 100 year flood elevation could be at least a foot less than the published FEMA elevations.

57. The FEMA flood insurance study sets the ten year flood elevation at about 872 feet south of County Road 200N.

58. If these were truly accurate elevations, County Road 200N and the old bridge would be flooded by a ten year event, and that has not happened.

59. The FEMA study sets the 50 year flood elevations at approximately 873 and 874.3 feet, respectively downstream and upstream of County Road 200N.

60. The FEMA study sets the 100 year flood elevations about .3 or .4 feet higher than the 50 year event.

61. While Yater's experts and the DNR disagreed on some matters, there was no general disagreement on the difference in elevations between the 10, 50, and 100 year floods.

62. Even if Yater's contentions are correct, the 100 year flood elevations would still be about 870.5 feet and 871.5 feet, respectively downstream and upstream of County Road 200N.

63. A reduction of the floodway elevation for permit II to 871.5 feet would not help Yater. The current elevation of the four lots in question north of the set back line is about 870 feet. All the lots would still be in the floodway.

64. A reduction of the floodway elevation for permit I to 870.5 feet might be of little assistance to Yater. The set back line on all the lots is currently less than 872 feet and continues to drop to less than 868 feet and the back edge of the property line. There could be enough room on some lots which is out of the floodway to build a house so that it was not built in the floodway, but a more detailed elevation map would be needed to proceed. If the floodway was determined to be 871 feet or higher, which given the testimony of the witnesses is much more likely than 870.5 feet, the vast majority of the lots behind the set back line will still be in the floodway.

65. Yater cannot be granted relief as a result of this hearing. To build residences on the lots in question, one of the following must happen:

a. A court of competent jurisdiction must rule that the 1988 NRC resolution is unenforceable or invalid.
b. FEMA must revise the flood insurance study map for the area and lower the expected 100 year flood elevation of the Creek at County Road 200N by more than three feet.

66. Yater also relies to some degree on an argument to the effect that at least two other permits to build residences on fill in the floodway have been granted by the DNR within two or three miles of Yater's project.

67. Exhibit E is a copy of such a permit.

68. Exhibit E allows the construction of a roadway to an apartment complex, but finds that the apartments will be constructed outside the floodway.

69. Exhibit D allowed the construction of homes on fill in the floodway because the department had made specific representations to the petitioner that the property was not in the floodway.

70. Development of the property involved in Exhibit D was commenced in 1975, long before the FEMA map was adopted.

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71. Further, the property involved in Exhibit E was under development in 1986.

72. Both were completed prior to the adoption of the 1988 NRC resolution.

73. The grant of permits prior to 1988 does not help Yater.

74. Permits I and II should be denied.

FOOTNOTES

1. There are other similarities between the Welch case and Yater. Both owned the property prior to the 1988 NRC resolution. Both were connected with the property prior to the FEMA mapping, and both had reasons to believe from the DNR in the late 1970s that the floodway was less than the FEMA mapping eventually showed. Clearly, a final determination by the court system in Welch, supra, could influence the outcome of Yater.

2. The reason for the difference in elevation appears to be the effect of the County Road 200N bridge.

3. 44 CFR 67 provides for administrative review of FEMA floodway determinations so there is a safeguard against totally arbitrary and capricious decisions.

4. Both the federal statute and the regulations make it clear that public comment and input is encouraged in the setting of floodway elevations, particularly from affected landowners. The final decision is based on input from state and federal agencies who have dealings with floodways and any other relevant information.

____________________________________________________________________________________________
[NOTE: CADDNAR citation does not apply to the Hancock Circuit Court entries.]


HANCOCK CIRCUIT COURT RULINGS
ORDER: AUGUST 18, 1995


The Court, having reviewed the transcript of proceedings in this cause and having examined the briefs by the parties, now finds:

1. The court has jurisdiction over the parties and the subject matter herein.

2. The Court, in a judicial review proceeding, cannot reweigh evidence or judge the credibility of witnesses. The Court must accept facts as found by the administrative body.

3. An administrative agency's interpretation of a statute which it is charged with enforcing is entitled to great weight; an incorrect interpretation, however, is entitled to no weight.

4. Upon review of the proceedings herein, the Court further finds:
(A) Respondent's denial of Petitioner's application for permits to place fill in a flood way for the purpose of constructing residences in or on a flood way was not arbitrary, capricious, an abuse of discretion or otherwise not in accordance with the law;
(B) Respondent's decision was not contrary to constitutional right, power, privilege or immunity;
(C) Respondent's decision was not in excess of statutory jurisdiction, authority or limitations or short of statutory right;
(D) Respondent's decision was not without observance of procedure required by law;
(E) Respondent's decision was supported by substantial evidence.

Therefore, Respondent's denial of Petitioners' Application for permits for the purpose of placing fill in a floodway in order to construct residential dwellings on the fill is affirmed. ORDERED this 18th day of August 1995.


ORDER: FEBRUARY 21, 1996


On August 18, 1995, the Court, having reviewed the administrative record in this cause and having examined the briefs filed by the parties, upheld Respondent's denial of Petitioner David G. Yater's application for floodway permits for the purpose of placing fill in a floodway to construct residential dwellings thereon.

On September 18, 1995, Petitioners filed a Motion to Reconsider, requesting the Court to make specific findings of fact in support of the Court's conclusions of law. On October 3, 1995, Respondent filed its objection to Petitioners' Motion to Correct Error. Argument was held on December 20, 1995; on December 22, 1995, the Court gave the parties thirty (3) days to submit proposed findings of fact and conclusions of law, and thereafter, ten (10) days to submit replies. The Court, having again reviewed the record and pleadings herein, now enters its Findings of Facts, Conclusions of Law and Judgment as follows:

FINDINGS OF FACT

1. The Department of Natural Resources is the agency charged with the responsibility of regulating floodways in Indiana.

2. Petitioner is the ultimate authority within the meaning of IC 4-21.5 in matters concerning floodway construction permits.

3. Petitioner David G. Yater owned property in the vicinity of Brandywine Creek in Hancock County, Indiana, which he has attempted to develop as a residential subdivision at all times relevant to these proceedings.

4. Petitioner David G. Yater on September 12, 1990, submitted floodway construction permit application G-12,881 ("Permit I") to the Department of Natural Resources.

5. Permit I involved the placement of fill along the banks of the creek just south of I-70 and east of State Road 9 on the south side of County Road 200N and on the west side of County Road 250E for the purpose of constructing approximately ten (10) residences.

6. On November 13, 1990, Petitioner David G. Yater submitted floodway construction permit application G-13,041 ("Permit II") to the Department of Natural Resources.

7. Permit II involved the placement of fill along the banks of the creek on the north side of County Road 200N for the purpose of building four residences.

8. On March 4, 1991, the Department of Natural Resources denied both permit applications on the basis that IC 13-2-22 prohibits the erection of a residence in a floodway.

9. On March 26, 1994, Petitioner filed Petitions for Administrative Review of the denials of both permits.

10. The Department of Natural Resources assumed that the one hundred (100) year frequency flood would reach an elevation of about 873.4 feet for Permit I and of about 874.6 feet for Permit II. both numbers were reached as a result of examining the City of Greenfield Flood Insurance Study which was completed by the Federal Emergency Management Agency ("FEMA") in June of 1979 and revised in 1987. In Permit I, the Department of natural Resources found that only lots 19 through 29 were in the floodway; the current elevation near County Road 200N is approximately 872 feet and slopes down from there to about 868 feet.

11. Elevation maps of the areas in question show the four lots in Permit II to have existing elevations of less than 870.4 feet. The average elevation of lot one is approximately 866 feet and the remaining lots have a significant portion of area less than 870 feet in elevation.

12. Floodway mapping is not an exact science and is dependent to some extent on "educated guesses". The Administrative Law judge found that Petitioner David G. Yater produced considerable evidence that FEMA flood elevations are incorrect.

13. The evidence most favorable to Petitioners show the difference of approximately three feet in the one hundred year flood elevation.

14. One of Petitioner's experts testified that the known high water mark in the area was 871.1 feet and that should be close to the fifty year event.

15. The FEMA study sets the one hundred year flood elevations about .3 or .4 feet higher than the fifty year event.

16. No general disagreement among the parties existed on the difference in elevations among the ten, fifty and one hundred year floods.

17. Assuming Petitioner David G. Yater's contentions are correct, the one hundred year elevations would still be 870.5 and 871.5 feet, respectively. Much of the land encompassed by Permits I and II would still be within the floodway.

CONCLUSIONS OF LAW

1. The Department of Natural Resources must rely upon the published FEMA Flood Insurance study map in establishing the floodway for Brandywine Creek and therefore most of Petitioner David G. Yater's project will take place in the floodway. Once FEMA has delineated a floodway for a specific stream, the state must use that floodway until FEMA revises its map.

2. IC 13-2-22-11 provides in part that the Department of Natural Resources must adopt a comprehensive plan or master plan for flood control for all areas of the state subject to floods.

3. The Indiana Flood Control Act authorizes the agency to cooperate in "all matters of flood control", which would include floodway mapping, with any agency of the United States government. See IC 13-2-22-12.

4. Cooperation with the United States government through FEMA allows the State of Indiana to obtain, approve and/or accept flood insurance through National Flood Insurance Program.

5. To qualify for the sale of National Flood Insurance, state and local communities must agree to regulate floodways in a manner which meets or exceeds the specifications found in the Code of Federal Regulations.

6. The Indiana Flood Control Act authorizes the Department of Natural Resources to delineate the floodway in a manner which secures the availability of flood insurance for the local community.

7. The method and procedure whereby the agency cooperates with FEMA to establish an agreed upon floodway delineation is consistent with the agency's promulgated definition of "regulatory flood": "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 (100) year period, as calculated by a method and procedure which is acceptable to and approved by the commission. This flood is equivalent to a flood having a probability of occurrence of one percent (1%) in any given year. 310 IAC 6-1-3(6).

8. The placement of fill in the floodway for the sole purpose of raising the elevation out of the floodway so residence can be constructed is a violation of Indiana Flood Control Act.

9. The Department of Natural Resources' construction of the Indiana Flood Control Act is correct:
(b) . . .floodways should not be inhabited and should be kept free and clear of interference or obstructions which will cause any undue restriction of the capacity of the floodways. . . . IC 13-2-22-2.

10. It is unlawful to erect, use or maintain in or on any floodway a permanent structure for use as an abode or place of residence. IC 13-2-22-13(a) .

JUDGMENT


1. The Court has jurisdiction over the parties and the subject matter herein.

2. The Court, in a judicial review proceeding, cannot reweigh evidence or judge the credibility of witnesses. The Court must accept facts as found by the administrative body.

3. An administrative agency's interpretation of a statute which it is charge with enforcing is entitled to great weight; an incorrect interpretation, however, is entitled to no weight.

4. Upon review of the proceedings herein, the Court further finds:

A. Respondent's denial of Petitioner David G. Yater's applications for permits to place fill in a floodway for the purpose of constructing residences in or on a floodway was not arbitrary, capricious, an abuse of discretion or otherwise not in accordance with the law;
(B) Respondent's denial of Petitioner David G. Yater's applications for permits is not contrary to constitutional right, power, privilege or immunity;
(C) Respondent's denial of Petitioner David G. Yater's applications for permits is not in excess of statutory jurisdiction, authority or limitations or short of statutory right;
(D) Respondent's denial of Petitioner David G. Yater's applications for permits is not without observance of procedure required by law; and,
(E) Respondent's denial of Petitioner David G. Yater's applications for permits is supported by substantial evidence.

5. The Final Order of the Natural Resources Commission dated October 19, 1994, is upheld.

ORDERED this 21st day of February, 1996.