Application FW-15-520 as submitted by the Mystic Bay Homeowner's Association is approved. The unexecuted portion of the application (the drainage pipe) should be constructed without further delay.
FINDINGS OF FACT
1. On May 20, 1993, Mystic Bay Homeowner's Association (MBHOA) submitted an application for an after-the-fact permit to the Department of Natural Resources (the "DNR").
2. The application sought approval of the creation/restoration of an earthen embankment between Mystic Bay lake and the White River (the "levee").
3. The levee was designed to minimize the effects of erosion in the area and small floods on the lake.
4. On January 10, 1994, the DNR issued a permit for the already constructed earthen embankment. The permit allowed an elevation of 719.5 mean sea level datum, as well as future installation of a drainage pipe. The pipe was designed to allow floodwaters in the lake to drain back into the river so as to relieve the effects of floods great enough to overtop the embankment and enter the lake.
5. On January 18, 1994, Steven M. Siebert filed an objection to the issuance of the permit. On January 26, 1994, Brant Cowser filed same. At the prehearing conference held on April 11, 1994, Jeffery B. Bailey tendered his objection and was added as a party by the Administrative Law Judge. The claimants are all homeowners in the area in question.
6. IC 4-21.5, IC 13-2, 310 IAC 0.6, and 310 IAC 6-1 apply to this proceeding.
7. The department is an agency as defined in IC 4-21.5-1-3.
8. As defined inIC 4-21.5-1-15, "ultimate authority" means the individual or panel in whom the final authority for an agency is vested.
9. Pursuant to IC 13-2-22, the Natural Resources Commission (the "Commission") is the ultimate authority for this type proceeding. Tim Rider was assigned this case as the Commission Administrative Law Judge (ALJ).
10. An evidentiary hearing before the ALJ was held on this matter on November 15, 1994, at the Indiana State Museum in Indianapolis.
11. All parties presented their evidence on this matter. Several witnesses classified as "experts" testified at the hearing.
12. Since the permit was issued prior to the claimants' objections, the burden of persuading the Court that the permit should not be issued is placed upon the claimants. (See Brown v. Dept. of Natural Resources and Peabody Coal Company, 6 Caddnar 136 (1993), citing a Commission decision dated May 20, 1992 for Amax Coal Company v. DNR and Jack Jarrett, 89-099R).
13. The overall issue presented by the claimants is whether or not the DNR erred in issuing the permit to the MBHOA. It has been maintained that the project did not meet the requirements contained in he applicable statutes.
14. Specifically, the claimants allege that the project will adversely affect the efficiency or capacity of the floodway in question and create an unreasonable hazard to the safety of life or property as iterated below.
15. Claimants contend and proved by eyewitness testimony that the levee has changed the flood pattern of the area. Previously, the lake would flood first causing the floodwaters to enter the area on that side. The levee has allowed the waters of the lake to remain low until the levee is overtopped, thereby causing floodwaters to enter the area first from the river. Further, the testimony indicated that floodwater is trapped in the area and does not recede when the river does as used to be the case.
16. Claimants argue that, based upon the above, the course of the West Fork of the White River has been changed, thereby adversely affecting the efficiency and capacity of the floodway. Such effect, they maintain, creates an unreasonable risk to their property.
17. Claimants sought to prove that the DNR erred in granting the permit because it relied on certain maps, blueprints, etceteras, to establish the historical elevation of the area to be 719.5 mean seal level datum (the same level as granted in the permit).
18. Claimants maintain that the historical elevation at the point in question was most likely nearer to 716.5. If this contention be
[VOLUME 7, PAGE 78]
true, the DNR made an incorrect assumption that the levee, as permitted, would do no worse than maintain the status quo in regard to flooding on the river.
19. The respondents counter that the impact of the project is within approvable parameters adopted by the Indiana legislature, and therefore, the permit must be issued.
20. They further contend that appropriate data were considered in approving this project, that the area in question was most likely at an elevation of 719.5, and that the drain pipe, if constructed as approved, will adequately alleviate any effects due to flood waters being impounded in the lake by allowing such waters to drain back into the river in a reasonable period of time.
21. IC 13-2-22-12 authorized DNR to issue a permit for construction in a floodway if, in the opinion of the director, an applicant has clearly proven that the construction meets the strict requirements contained therein.
22. Several applicable terms are defined in 310 IAC 6-1 (the "rule") as follows: adversely affect the efficiency of, or unduly restrict the capacity of, the floodway is defined as an increase in the elevation of the regulatory flood of at least 0.15 of a foot as determined by comparing the regulatory flood elevation under the project condition to that under the base condition (Sec. 3(1)). Floodway is defined as the channel of a river or stream and those portions of the flood plains adjoining the channel which are reasonably required to efficiently carry and discharge the peak flood flow of the regulatory flood of any river or stream. (Sec. 3(13)). Regulatory flood is defined as a flood having a peak discharge which can be expected to be equaled or exceeded on the average of once in a 100 year period, as calculated by a method which is acceptable to and approved by the commission. This flood is equivalent to a flood having a probability of occurrence of 1% in any given year. The term is also referred to as the 100-year frequency flood. (Sec 3(18)). Project condition is defined as the condition of the flood plain with existing structures, obstructions, deposits, excavations, and the project. (Sec. 3(17)). Base condition is defined as the condition of the flood plain on January 1, 1973, but without any unauthorized dam or levee. If an activity after December 31, 1972, lowered the regulatory flood profile, the flood plain under the lower profile is the base condition. (Sec. 3(2)).
23. The elevation of the regulatory flood in the area in question is 728.8 N.G.V.D. . This figure was offered by a DNR expert witness as being delineated on the Federal Emergency Management Agency (FEMA) map of the area.
24. The claimants advance the theory that the FEMA map is wrong and should not be followed. The DNR maintains that it is required to rely upon the FEMA flood insurance study map when delineating floodways, and that the claimant's remedy in this regard is to request a revision from FEMA.
25. The Commission has ruled that the DNR position is correct. In Yater v. Department of Natural Resources, 6 Caddnar 168 (1994), it held that Federal law required the states to use the FEMA maps or risk the loss of Federal flood insurance for its citizens. The executive of a state is in no position to risk such a loss.
26. Given that the 728.8 figure is to be accepted, it is clear that all the homes in question are clearly in the floodway of the West Fork of the White River and expert testimony indicates that a levee reaching a height of 719.5 would not measurably increase the 100-year flood level.
27. In cases such as this, the technical aspects of the case hinge on expert testimony. The ALJ not being an engineer must listen to experts and evaluate their testimony for forthrightness, preparedness, and credibility. The ALJ has no way of measuring the accuracy of their methodology unless it is attacked by experts for the other side.
28. In this case, the respondents called several experts. They included George Bowman, P.E., of the DNR, Division of Water; Robert Stegner, P.E., who is retired and worked on this permit application to include the concept of the drain pipe; and Victor H. Wenning, P.E., who is currently employed by a civil engineering firm and was formerly the chief of the regulations branch of the DNR's Division of Water.
29. The overall testimony of the respondent's experts supported the position that the permit, as issued, conformed to Indiana law in all respects.
30. The claimants called several witnesses who testified as to their observations of the area over a period of years. The testimony was forthright and accurately portrayed
[VOLUME 7, PAG 79]
the situation on the ground but NONE of these witnesses were educated or experienced in the profession of civil engineering so as to qualify as an expert.
31. The issues raised by the claimants, except for the FEMA map alleged inaccuracy which has already been spoken to by the Commission, are technical in nature and testimony of experts in the field must be given great weight in examination of same.
32. In regard to the alleged adverse effect on the efficiency or capacity of the floodway, Mr. Bowman testified that he did not run the computer model (HEC-2) which is used to determine how much a project would raise the 100-year flood level (728.8). A raise of 0.15 foot is necessary to constitute an "adverse effect".
33. When questioned as to why the model was not used, Mr. Bowman stated that in applying his vast experience in cases of this type, he concluded that there was no chance that the levee could have an effect as great as 0.15 feet.
34. Mr. Wenning agreed with Mr. Wenning agreed with Mr. Bowman's assessment. Further, Mr. Wenning testified that he ran tests and drew the conclusion that the levee could not raise the 100-year flood level more than 0.06 feet.
35. In his testimony, Mr. Wenning addressed the concern of the residents that they were now being flooded first from the river instead of the lake. Their concerns that this seems to indicate that the river is up and the flooding will be worse due to the levee.
36. Mr. Wenning agreed that the flooding pattern had changed. This change is a result of the levee protecting the lakeward side of their property. That is, before the levee the lake would fill up and flood the residents first. Then any continuing rise would raise the river.
37. According to Mr. Wenning, his calculations show that in the aggregate, the levee actually delays flooding from four to twelve hours on the properties involved.
38. The expert testimony shows that the levee cannot be construed as an "unreasonable hazard to the safety of life or property." Indeed, the levee may be beneficial to the residents in regard to protection of property.
39. Finally, the residents testified that impoundment of water on their property is a real problem. The experts agree and point out that the installation of the drainage pipe (referred to as a relief pipe) will allow the lake to draw down rapidly after a flood event by re-routing the flood waters back into the river. Draw down would be on the order of a 718.2 level after two days and a 716.5 level after four days.
40. Such a draw down would certainly relieve water impoundments from the lake.
41. The weight of the evidence presented leads to the conclusion that the application in question should be approved and the permit issued.