The approval and issuance by the Department of Natural Resources of floodway construction permit FW-16,147.
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, and IC 13-2 apply to these proceedings.
3. The DNR is the state agency responsible for regulating floodways within the State of Indiana.
4. The Natural Resources Commission ("NRC") is the ultimate authority within the meaning of IC 4-21.5 with respect to the issuance of a permit under the Flood Control Act IC 13-2-22 ("FCA").
5. During the late spring of 1994, Grace Fellowship Church ("Permittee") submitted an application to the DNR which would allow the permittee to place fill in the floodway of White Lick Creek in Hendricks County, Indiana, for the purpose of constructing a church and parking lot.
6. On November 9, 1994, the DNR approved the permit, designated as Permit FW-16,147 ("Permit") and introduced into evidence as Exhibit A.
7. On November 20, 1994, Robert Black ("Black") a neighbor, filed a request for review of the approval of the permit on behalf of himself and several other neighbors in the area.
8. Two persons objecting to the permit testified at the hearing. The witnesses also introduced a number of photographs of water standing in the yards of several area residents.
9. The general nature of the residents' testimony, mostly uncontradicted, is that a serious drainage problem currently exists in the area and that further development along the creek will cause increased flooding and standing water.
10. Black also objected to a finding by the DNR that there would be minimal danger to fish, wildlife, and botanical resources. Black contends the DNR should not allow any such damage.
11. The permit contains condition four which states that the permittee is not relieved of any responsibility to obtain other licenses or permits including permits from the local planning agency and drainage board.
12. The DNR presented evidence from a hydraulic engineer who has worked for DNR for 15 years and who has done analyses of floodway construction permits for the last four years.
13. The engineer testified this permit was first approved in 1989, but the permittee failed to commence construction within two years and the permit expired.
14. The engineer also testified that much of the proposed fill is in the floodplain and not the floodway hence not regulated by DNR.
15. Only a small portion of the proposed fill will go in the floodway and it will block less than two percent of the cross-sectional area at the point of maximum fill. Additionally, the point of maximum fill is within the "shadow" of a bridge so that the flow is already constructed and the fill would not further constrict the floodway.
16. Floodway construction permits are governed by IC 13-2-22-13.
17. IC 13-2-22-13 requires the approval of a floodway construction permit for projects no involving residences anytime the applicant shows the following three conditions are met:
a. The floodway is not unduly constricted;
b. There is no increased danger to person or property; and
c. The project does not result in unreasonably detrimental effects to fish, wildlife, or botanical resources.
18. The DNR cannot regulate in any manner the area outside the floodway.
19. With respect to the limited construction that takes place in the floodway, the evidence here shows that the flood stage will not be increased at all, and there will be no significant harm to fish, wildlife, or botanical resources.
20. The decision to issue the permit should be affirmed.