Application FW-15,480 issued to H. Anthony Miller is affirmed.
FINDINGS OF FACT
1. On September 9, 1993, Pam and Jim Roberts (the "Claimants") filed a petition of objection to FW-15,480 (the "application") issued to H. Anthony Miller by the department.
2. The application was submitted at the request of the department to mitigate wetlands destroyed by another project known as G-12,586.
3. The application gave Mr. Miller permission to create approximately four acres of mitigation wetland by constructing two low head levees in the floodway of the Shanton Ditch near Pierceton in Kosciusko County.
4. The claimants are affected parties and were notified in conformance with IC 14-3-16 and 310 IAC 0.6-3.
5. IC 4-21.5, IC 13-2-22, IC 14-3, and 310 IAC 0.6-1, and 310 IAC 0.6-3 apply to this proceeding
6. The Department of Natural Resources (the "department") is an agency as defined in IC 4-21.5-1-3.
7. As defined in IC 4-21.5-1-15, "ultimate authority" means the individual or panel in whom the final authority for an agency is vested.
8. Pursuant to IC 13-2-22, the Natural Resources Commission (NRC) is the ultimate authority for this type proceeding.
9. The claimant's raised two issues at hearing:
a. That the proposed wetland would increase the beaver and doer population in such a way as to damage their (the claimant's) property; and
b. That the area in question is not in a floodway, and therefore, the department has no authority to act upon a permit application.
10. Since the permit was issued prior to the claimant's objection, the burden of persuading the administrative law judge that the permit should not be issued is laced upon the claimants. (See Brown v. DNR and Peabody Coal Company, 6 Caddnar 136, citing an NRC decision dated May 20, 1992 for Amax Coal Company v. DNR and Jack Jarret, 89-099R.)
11. The claimants presented no evidence that this application would result in an unreasonable detrimental effect on the wildlife of the area. In fact, the evidence demonstrated a beneficial affect would probably result.
12. The claimants presented no evidence to indicate the area in question was not in the floodway of Shanton Ditch. In fact, expert testimony presented by the respondents indicated that the area was in the floodway, and therefore, under the jurisdiction of the DNR.
13. In summary, several experts in the areas of biology and engineering were called to testify by the respondents. No experts were called by the claimants. All the experts testified in favor of the application in question here.