Floodway Construction Permit application G-12,771 shall be issued subject to the following conditions:
1. The property be restored in such a manner so there is no net loss of like-kind wetland because of the construction.
2. A 50-foot buffer strip (minimum) vegetated so as to prevent erosion shall be maintained around the perimeter of the existing lake.
3. There should be no in-channel excavation from April 1 to June 30 of any year in order to protect those species of fish which spawn in the stream.
4. All bare and disturbed areas should be revegetated to a suitable mixture of grasses and legumes (no fescue) at the close of construction to prevent erosion.
5. The permittee shall place in all deeds which transfer a portion or all of the floodway described in the permit a statement that the property in question is subject to the terms and conditions of Floodway Construction Permit G-12,771 issued by the Natural Resources Commission.
Floodway Construction Permit Application G-12,986 shall be issued subject to the following conditions:
1. A 50-foot buffer strip (minimum) vegetated so as to prevent erosion shall be maintained between the project area and the top of the bank of the creek.
2. No spoil shall be permanently deposited on the 50-foot buffer strip. If spoil is temporarily placed within the buffer strip, erosion control measures must be taken to prevent sediment form entering the creek.
3. All bare and disturbed areas should be revegetated to a suitable mixture of grasses and legumes (no fescue) at the close of construction to prevent erosion.
4. In the event trees are removed, no limbs or trunks will be left in the floodway.
5. Fish attractors, such as boulders or logs, should be placed in the lake.
6. At least 25% of the shoreline of the lake should be revegetated with trees, shrubs, and grasses which are attractive to native wildlife for a distance of 50 feet from the edge of the normal pool.
7. An island of sufficient size to provide nesting sites for native wildlife shall be created in the lake. The island shall be vegetated in a manner to encourage wildlife habitat. The island shall be constructed in such a way so the shoreline can become established as an emergent wetland.
8. The permittee shall place in all deeds which transfer a portion or all of the floodway described in the permit a statement that the property in question is subject to the terms and conditions of Floodway Construction Permit G-12,986 issued by the Natural Resources Commission.
9. The property be restored in such a manner so there is no net loss of like-kind wetland because of the construction.
FINDINGS OF FACT
1. The Department of Natural Resources ("DNR") is an agency within the meaning of IC 4-21.5.
2. IC 4-21.5 and IC 13-2 apply to these proceedings.
3. The DNR is the state agency charged with the regulation of construction projects, which take place in a floodway. See IC 13-2-22.
4. The Natural Resources Commission ("NRC") is the ultimate authority within the meaning of IC 4-21.5 with respect to approvals or denials of applications for floodway construction permits.
5. On July 17, 1990, Dr. David Yater ("Yater") filed floodway construction permit application G-12,771 ("Permit I") with the DNR.
6. On October 24, 1990, Yater filed floodway construction permit application G-12,986 ("Permit II") with the DNR.
7. Both applications involved construction in the floodway of Brandywine Creek near the CR 200N bridge in Hancock County in connection with the residential development of a tract of land by Yater.
8. On February 18, 1991, the DNR wrote letters involving both permits stating that the permits could not be granted because of the absence of a fish, wildlife, and botanical resources mitigation plan ("mitigation plans") and listed in detail the conditions that Yater should add to the permit applications. Yater was given 90 days to submit these plans. See Respondent's Exhibits B and C.
9. On March 25, 1991, the DNR Division of Water staff members recommended denial of both permits solely because of the absence of appropriate mitigation plans. See Stipulated Exhibits V and VIII.
10. On March 26, 1991, the DNR mailed out denial letters on both permits to Yater. Both denials were based solely on the absence of mitigation plans. See Stipulated Exhibits II and X.
11. On April 24, 1991, Yater filed petitions for administrative review of both permit denials.
12. Floodway construction permits are controlled by IC 13-2-22-13.
13. IC 13-2-22-13(b), (d), and (f) apply to these permits.
14. IC 13-2-22-13(b) reads as follows:
(b) 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, or botanical resources, and the same are declared to be and to constitute public nuisances.
15. IC 13-2-22-3(d) reads as follows: (d) Except as provided in subsection (e) a person desiring to:
(1) erect, make, use, or maintain a structure, obstruction, deposit, or excavation:
(2) suffer or permit a structure, obstruction, deposit, or excavation to be erected, made, used, or maintained; or
(3) (not relevant) in or on any floodway shall first file with the director a verified written application for a permit accompanied by nonrefundable fee of fifty dollars ($50). The application must set forth the material facts together with plans and specifications for the structure, obstruction, deposit, or excavation. The applicant must receive a permit from the director for the work
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before beginning construction. The director shall issue a permit only if in the opinion of the director the applicant has clearly proven that 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, or botanical resources. In deciding whether to issue permit under this subsection, the director shall consider the cumulative effects of the structure, obstruction, deposit, or excavation. Permit issued under this subsection is void if construction is not commenced within two (2) years after the issuance of the permit.
16. IC 13-2-22-13(c) reads as follows: (e) The director may incorporate in and make a part of an order of authorization such conditions and restrictions as it may deem necessary for the purposes of this chapter. The director shall send a copy of each permit issued under subsection (d) to each river basin commission organized under IC 13-2-27 or IC 36-7-6 that is affected.
17. Upon translating the relevant portions of IC 13-2-22-13 into English, the legislature has prohibited persons like Yater from obstructing, depositing, or excavating in any floodway unless they obtain a permit from the director. If the applicant shows there will be no danger to persons or property, there will be no significant increase in the upstream or downstream flood stage, and no unreasonably detrimental effects on fish, wildlife, and botanical resources, the permit should be issued. The director may attach conditions to the permit in order to make sure the permit, as granted, complies with the law.
18. The DNR admits that construction in accordance with the permit applications would not be dangerous to persons or property and would not unduly restrict the floodway. See Stipulated Exhibits V and VIII.
19. Both permits were denied solely for the reason that mitigation plans were not provided or were not adequate.
20. Permit I would allow the excavation of a channel for access to an existing gravel pit. This channel would provide access to Brandywine Creek which flows through the pit from north to south.
21. Permit II would allow the mining of sand and gravel from floodway of the creek just north of CR 200N and would eventually create another pit or small lake. Some of the removed material would be used as fill around the perimeter of the lake.
22. One issue raised by Yater is easily disposed of.
23. In his petitions for administrative review (Stipulated Exhibits I and IX), Yater raises constitutional questions about the application of the fish, wildlife, and botanical resources provisions of IC 13-2-22.
24. These concerns cannot be addressed in the administrative forum and must wait for judicial review. See Sunshine Promotions, Inc. v. Ridlen, 483 N.E.2d 761 (Ind. Ct. App. 1985), in which the Court of Appeals held that administrative personnel (being part of the executive branch of government) had no authority to rule on the constitutionality of statutes and that such determinations are within the exclusive jurisdiction of the courts via declaratory judgment actions.[FOOTNOTE 1]
25. During the DNR analysis of Permit I, (Stipulated Exhibit C) the DNR Division of Fish and Wildlife specified five conditions that would have to be imposed in order to properly mitigate damages to fish and wildlife caused by the construction of the channel. Those conditions were:
(1) As the proposed channel will cut through a wetland slough, on-site mitigation will be needed. An emergent wetland should be created that is three (3) times the acreage of what will be destroyed by the channel.
(2) A 100-foot buffer strip containing natural vegetation should be maintained around the perimeter of the existing lake.
(3) There should be no in-channel excavation from April 1 through June 30 to protect these species of fish which may spawn in the stream.
(4) All bare and disturbed areas should be revegetated to a suitable mixture of grasses, legumes, and woody species (no fescue) at the close of construction to prevent erosion.
(5) It should be recorded in the deed of this property that the emergent wetland that will be created and the 100-foot buffer strip will remain in their natural states in perpetuity.
26. Likewise, in connection with the application for Permit II, eight conditions were required by the DNR in connection with the sand and gravel mining and lake creation. See Exhibit B. Those eight conditions are as follows:
(1) There should be a minimum of 100-foot wide buffer strip maintained between the project area and the top bank of the creek.
(2) No spoil should be deposited within this 100 foot wide strip.
(3) All bare and disturbed areas should be revegetated to a
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suitable mixture of grasses, legumes, and woody species (no fescue) at the close of construction to prevent erosion.
(4) There should be no tree removal.
(5) Fish attractors, such as boulders or logs, should be placed in the lake.
(6) At least 25 percent of the shoreline of the lake should be allowed to naturally revegetate into trees, shrubs and grasses for a distance of 100 feet from the edge of the normal pool.
(7) At least 25 percent of the lake should be no more than three feet deep so that this area can become established as an emergent wetland.
(8) It should be recorded in the deed of this property that the 100 foot buffer strip will remain in this its natural state in perpetuity.
27. Why the DNR did not issue permits with the above conditions incorporated into the permits pursuant to IC 13-2-22-13(f) remains one of the mysteries of life. While the DNR is certainly not required to prepare a mitigation plan for an applicant, if it does create a detailed plan, it could and should be used.
28. Even if the DNR was justified in not approving the permits because the applicant did not produce sufficient mitigation plan, this does not prevent the permits from being issued as a result of a timely petition for review under IC 4-21.5. Since an IC 4-21.5 proceeding is a trial de novo and the administrative law judge acts as a trial court sitting without a jury basing his decision solely on the evidence presented at the hearing (See Indiana Department of Natural Resources v. United Refuse Company, Inc. (Ind. Sup. Ct. 1993), 615 N.E.2d 100), the administrative law judge and NRC can find from the evidence presented at hearing that a permit, with conditions, could still be issued.
29. At the hearing, the DNR could not call as witnesses those persons who worked on the fish and wildlife portions of the permit as those persons no longer were employed by the state. As a result, the DNR's main witness was a well qualified individual, but with one who had very little contact with these projects, and whose personal knowledge of the area has mostly been obtained from driving near it while performing other duties.
30. Yater presented evidence from a highly qualified wildlife biologist now working for Eli Lilly who had been asked to analyze the projects and their effects on fish and wildlife.
31. The ideas of both of these experts were remarkably similar.
32. Mr. Yater's expert felt that buffer zones served a legitimate purpose. He testified that requiring a 100-foot buffer was excessive, and that a properly vegetated 50-foot buffer with rip rap would be quite adequate.[FOOTNOTE 2]
[NOTE: Finding 33 was omitted in orginal document.]
34. Yater's expert testified that no spoil should be permanently placed on the buffer strip, but that the temporary placement of spoil on the buffer strip was not a problem.
35. The DNR's expert stated that the storage of spoil can cause siltation problems and must be controlled, but did not dispute the testimony of Yater's witness.
36. One of Yater's plans was to plant corn and soybeans in part of the affected area. (The area in question was defined as "bottom land pasture" by Yater's expert.)
37. Yater's expert testified that corn and soybeans would not be good because the network of roots is not adequate enough or permanent enough to prevent erosion.
38. The DNR's expert agreed with Yater's expert in that regard, and added that the use of farming herbicides and pesticides in the floodway would be detrimental to fish and wildlife.
39. Yater's expert and the DNR's expert both agreed that bare areas and disturbed areas in the floodway should be revegetated. Neither went into great detail as to the appropriate revegetation, except to agree that erosion control was of primary importance.
40. The DNR's original non-condition four in Permit II sought to prevent tree removal.
41. Preventing any tree removal in a floodway by the surface and/or timber owner of a tract of property appears to go far beyond the DNR's authority. As long as the removal does not involve the disturbance of the floodway and felled brush is not allowed to remain as a "deposit" in the floodway, it would appear that a blanket prohibition against "logging" in a floodway is beyond that statutory authority of the DNR.
42. Additionally, Yater's expert testified persuasively that trees in the buffer strip are a bad idea; that they do not generally promote erosion control.
43. The DNR's comments on trees were minimal.
44. The DNR's comments to Permit II also stated that fish attractors should be placed in the lake.
45. The DNR's expert testified that, after excavation, the bottom of the pond is a uniform surface which is bad for fish. Rocks and tree limbs help the fish.
46. Yater's expert agreed that fish attractors are good.
47. The DNR comments to Permit II discuss allowing 25% of the shoreline of the lake to be allowed to naturally
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revegetate into trees, shrubs, and grasses for a distance of 100 feet from the pond.
48. Yater's expert did not comment negatively on this proposal, but did express the opinion that natural revegetation might not be best for wildlife, and that it should be revegetated specifically for a wildlife area.
49. The DNR's expert did not disagree with Yater's expert.
50. The DNR's comments to Permit II also included a statement that "at least 25% of the lake should be no more than three feet deep so that this area can become established as an emergent wetlands"
51. Yater's expert agreed that the creation of an emergent wetland would definitely enhance the fish and wildlife habitat of the area. He testified, however, that the creation of an island would be a better way of accomplishing the same goal, particularly in light of the fact that "spoil must go somewhere."
52. Yater's expert had some interesting observations about the site which were not rebutted in any substantial way by the DNR. Those observations include:
(a) Road construction (including I-70 has already done major damage to wildlife.
(b) There is a quality wetland north of the projects that needs to be protected; any wetland in the area of the permits is small and not particularly high quality.
(c) Residential development can be both a blessing and a curse to wildlife. Development will alter habitat, but one item that attracts buyers is the presence of fish and wildlife. Many owners will go out of their way to encourage wildlife to remain.
(d) The biggest threats to wildlife, especially during nesting season, are dogs and cats. The creation of an island with emergent wetlands provides wildlife with a relatively secure nesting site.
53. The DNR comments in connection with permit I point out five conditions that should be included if the permit were granted.
54. Two of the areas of concern were the 100-foot buffer strip and the revegetation of disturbed areas.
55. Another statement dealt with the creation of an emergent wetland that "is three (3) times the acreage of what will be destroyed by the channel."
56. The DNR's expert admitted that this is a policy statement and there is no specific foundation in the Indiana Code or 310 IAC for the "three times" requirement.
57. The state, in protecting and preserving the state's fish and wildlife, has a legitimate interest in "no net loss" of wetlands.
58. Since permit I and Permit II involve areas near each other, the "no net loss" of wetlands for Permit I could be merged into the conditions for Permit II.
59. Another comment would restrict in-channel excavation from April 1 through June 30 to protect fish during spawning season.
60. Not a lot of evidence was introduced on this topic at the hearing.
61. Yater's expert agreed some protection of fish during this time period was appropriate, but felt that excavation could safely take place as long as there were no cuts made into the lake during this time.
62. The last requirement in both of the DNR's reports talks about recording in the deed of the property that the emergent wetlands (Permit I only) and buffer strips (both permits) will remain in their natural states in perpetuity.
63. Again, at the hearing, very little evidence was presented about this topic.
64. Permits issued pursuant to IC 13-2-22-13 have an expiration date to commence construction. They do not, however, have by law any termination date. Assuming construction commences within the time provided by law, a permit remains in effect on the floodway area specified in the permit until revoked or amended.[FOOTNOTE 3]
65. Any owner of the floodway property, present or future, is bound by the terms of the permit.
66. This issue represents one of the contemporary problems for abstract companies, title insurance companies, lending institutions, real estate brokers, and real estate lawyers.
67. The problem that arises is that the only way of knowing whether or not a particular piece of property near a floodway is covered by a permit issued in accordance with IC 13-2-22 is to check with the DNR. There may not be a local record.
68. Yater vigorously points out there is no statutory authority for requiring recordation.
69. The DNR contends that preservation of the state's water resources gives the DNR the power to require recordation of the buffer strips as easements.
70. The Black's Law Dictionary (5th Edition) definition of easement involves "[a] right of use over the property of another" and normally "for the benefit of adjoining lands".
71. The DNR does not necessarily have a legitimate interest in creating an easement. Indeed, what the DNR is trying to do is more in the nature of a restrictive covenant or zoning restriction than an easement.
72. The DNR does have, however, some duty and responsibility to see that buyers are aware that such a permit exists
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and may restrict the use of the property. As a practical matter, it is highly desirable to create a scheme by which banks, realtors, etc., are put on notice that a DNR permit exists on this property. "The simplest, least expensive way to do this is to require all deeds granted subsequent to the permit approval for property in the floodway which is covered by the permit to contain a clause stating that the permit applies to the property.
73. The parties spend some time discussing whether or not "cumulative effects" must be considered in connection with the impact on fish and wildlife. In light of the testimony of both experts , this is a non-issue.
74. Yater contends that the denial of his permits is arbitrary and capricious. That is not the correct standard to apply. That may be the correct test for judicial review, but since this is a hearing de novo, the standard to be applied is whether or not the permits should be issued based on a preponderance of the evidence introduced at the hearing. See United Refuse, supra.
75. The answer to that question in these cases is that the permits should be issued as long as appropriate mitigation conditions incorporated pursuant to IC 13-2-22-13(f) are attached.
FOOTNOTES
1. Yater also claims the "property" is his exclusive domain. Yater is correct as to the land, trees, and plants. He is incorrect, however, as to fish and wildlife which belong to the people of the State of Indiana and are held in trust by the DNR. See State of Indiana ex rel Patrick Ralston v. Lake County Superior Court, Room Number Three, (1989) 546 N.E.2d 1212.
2. Yater introduced evidence of floodway construction permit X-9958 obtained in 1987 by Yater. There are four conditions including a 50-foot buffer in connection with sand and gravel excavation just north-of this site.
3. In fact, in 1991, the NRC imposed a $30,000 fine on a permittee for violating the terms of a 1964 Flood Control Act permit issued for a six acre site. See DNR v. Banner, 5 Caddnar 176.