[NOTE: ON NOVEMBER 18, 1999, THE PARTIES ENTERED INTO AN AGREED ORDER.]
1. On or about December 23, 1996, the Department of Natural Resources ("department") approved permit FW-17,771, ("permit"), a permit to allow the Wells County Drainage Board ("board") to perform maintenance in a floodway project on Eight Mile Creek in Wells County. A public hearing on the permit was held on December 4, 1996 in Bluffton Indiana wherein Mr. Harden presented written objections to the permit. On January 3, 1997, Jim Harden ("Harden") petitioned this tribunal for administrative review of the permit. Harden objects to several aspects of the approved permit, including in his Petition for Administrative Review objections that "the project will: 1) have detrimental effects on the efficiency and capacity on the Eight Mile Floodway; 2) have a definite impact on wetlands in the area; and 3) have undesirable effects on fish, wildlife and botanical resources..."
2. A prehearing conference was held on April 22, 1997 wherein counsel for the department informed the administrative law judge that the permit had been improperly issued due to the fact that the Division of Fish and Wildlife's comments had not been considered by the Division of Water prior to issuance of the permit[FOOTNOTE 1]. On July 8, 1997, the department filed a Motion for Summary Judgment[FOOTNOTE 2]. On October 6, 1997, the claimant filed an opposition to the department's Motion for Summary Judgment[FOOTNOTE 3].
3. The department asserts in its Motion for Summary Judgment that there are no issues of material fact in this case and asserts that the department is entitled to judgement as a matter of law. In support of this argument, the department relies on the language of IC 36-9-27-53.5(d) and (h), which provide:
"(d) Not more than thirty (30) calendar days after the completion of an onsite field review under this section, the division shall provide the county surveyor with a written summary of review. The summary must contain the following:
..
(3) a list of conditions that:
(A) the department of natural resources would place on a permit to mitigate any unreasonable or detrimental effects that may occur as a result of the proposed work;
(B) the department of environmental management would place on a certification to comply with section 401 of the federal Clean Water Act...;
(C) both departments referred to in this subdivision would place on a permit or certification..."
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"(h) If the permit conditions disclosed under subsection (d)(3) concerning a project for the reconstruction or maintenance of a regulated drain are acceptable to the county surveyor and board, the conditions:
(1) are binding upon the department of natural resources; and
(2) may not be changed by the department of natural resources."
4. A summary of review was provided to the county surveyor by the department as shown in Exhibit B of the department's summary judgment motion. The department argues that while the fish and wildlife comments were not considered prior to providing the summary to the county surveyor, the department, by statute, is precluded from changing the conditions under IC 36-9-27-53.5 (h).
5. The issue that must be decided prior to a consideration of the merits in this case is a question of law, whether Mr. Harden is precluded from seeking administrative review of the permit when the department is statutorily precluded from changing the conditions outlined in the post-inspection letter to the county surveyor.
6. "Summary judgment is appropriate only if the designated evidentiary matter shows that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." IC 4-21.5-3-23(b). Summary judgment may be rendered upon fewer than all the issues or claims and "a summary judgment upon fewer than all the issues involved in a proceeding or with respect to fewer than all the claims or parties is not a final order." Id.
7. "The purpose of statutory construction is to determine and give effect to the intent of the legislature." Matter of Lawrence, 579 N.E. 2d 32, 38 ( Ind. 1991), and Berkey v. Kosciusko County Board of Zoning Appeals, 607 N.E. 2d 730, trans. den. (Ind. App. 1993), The statute must be examined as a whole, giving the words used their common and ordinary meaning. [Emphasis supplied] Lawrence at supra. "Words and phrases in a single section of a statute must be construed together with other parts of the same section and with the statute as a whole; they must be construed in harmony with the intent the legislature had in mind, in order that the spirit and purpose of the statute be carried out." Indiana State Highway Commission v. White, 291 N.E. 2d 550, 553, 259 Ind. 690 ( Ind. 1973).
8. The legislative intent of IC 36-9-27-53.5(h) is reasonably interpreted to be the desire to bind the department to conditions placed within a post-site inspection letter. The language of this section states that these conditions are "binding upon the department of natural resources" and "may not be changed by the department of natural resources."
9. While this intent is clearly to bind the department to that post-inspection letter of conditions, in reviewing the statute as a whole, IC 36-9-27-25 provides that "whenever a regulated drain that is subject to this chapter is included in a flood control project approved by the department of natural resources, the drain ceases to be subject to this chapter." This exemption of floodway project drains from IC 36-9-27 is consistent with IC 14-28 flood control authority. The drain at issue in this matter, as shown by the copy of the permit in Exhibit C of the department's motion, appears to be a drain included in a flood control project approved by the department. Therefore, the permit is controlled by IC 14-28.
10. The Administrative Orders and Procedures Act of IC 4-21.5 applies to the issuance of flood control permits. See IC 14-28-1-30. The provisions for administrative review under IC 4-21.5 are available to specific
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persons in regard to floodway permits. IC 4-21.5-3-7 sets forth the standards for administrative review and it provides:
"Sec. 7. (a) ...To qualify for review of any other order described in section 4, 5, or 6 of this chapter, a person must petition for review in writing that describes the following:
(1) States facts demonstrating that:
(A) the petitioner is a person to whom the order is specifically directed;
(B) the petitioner is aggrieved or adversely affected by the order; or
(C) the petitioner is entitled to review under any law."
11. Pursuant to 312 IAC 3-1-3(1), the filing of that petition for administrative review under IC 4-21.5-3-7 initiates a proceeding before the Natural Resources Commission. The Natural Resources Commission is statutorily created as a body by IC 14-10-1-1[FOOTNOTE 4], and is not the Department of Natural Resources. One of the commission's duties is to act as "ultimate authority" for the department under IC 14-10-2-3. In this role as "ultimate authority", the commission is responsible for providing the administrative review of the department's non-final orders. This review is governed by IC 4-21.5 and 312 IAC 3. The filing of a petition for administrative review of a non-final order serves to stop the department order from becoming a final order until the ultimate authority for the agency decides the administrative case. See IC 4-21.5-1-6. Pursuant to IC 4-21.5-3-27 and IC 4-21.5-3-29, the administrative law judge's "order disposing of the proceeding becomes a final order when affirmed", modified or dissolved by the ultimate authority[FOOTNOTE 5]. Therefore, a final agency order is decided when the ultimate authority rules on the merits of the petition for administrative review.
12. The issue comes down to a question of statutory construction; does IC 36-9-27-53.5 serve to bind IC 4-21.5-3-7(a) parties to the post-inspection conditions set forth in the department's letter to the county surveyor or are those parties allowed to seek administrative review of the permit.
13. IC 36-9-27-53.5 addresses two entities, the department and the county drainage board in the permit application process. It does not address the parties allowed administrative review under IC 4-21.5-3-7. Neither does IC 36-9-27-53.5 address the Natural Resources Commission and its actions. It is reasonable to interpret this statutory intent of IC 36-9-27-53.5 is to address the permit application review process only, a separate process from the administrative review process. Had the legislature intended a different interpretation, it would clearly have enunciated that intent. IC 36-9-27-53.5 does not bind those persons who are not parties to that permit application review process, and as such, does not serve to preclude administrative review of the final permit from those parties.
14. Since the Administrative Orders and Procedures Act ("AOPA"), of IC 4-21.5 is intended to provide relief to persons through the administrative review process, and IC 14-28-1-30 establishes the application of IC 4-21.5 to flood control project permits, the claimant in this case is entitled to administrative review of this permit under
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IC 4-21.5. The Natural Resources Commission is responsible for providing that administrative review of the department's non-final agency order. To allow a different interpretation would disallow administrative review to potentially affected parties in cases where permits are issued for county drainage projects in a floodway.
15. Additional guidance is provided in IC 14-11-4 which covers the "Procedures Governing Certain Licenses" within the jurisdiction of the department. Included in these licenses are those permits[FOOTNOTE 6] issued under IC 14-28-1 (flood control project permits). IC 14-11-4-5 provides that notice of these applications for license must be provided to "at least one" of the adjacent property owners, and notice "shall" be provided to those persons "who have requested notification that (A) affects the specific real property to which the application relates; or (B) is the same type as the application." This notice is intended to provide information to persons who might be affected by the approval of these permits. It is illogical to determine that the legislative intent of this section was to serve any other purpose than to apprise potentially affected parties about those permit applications in order that those parties could seek protection of their interests if needed.
16. After the permit was approved, the department realized it made a mistake by not including the comments of the Division of Fish and Wildlife. Claimant asserts that the conditions required by the Indiana Department of Environmental Management ("IDEM") are not made conditions of the permit as set forth in the conditional letter sent by the department on May 20, 1996. The administrative law judge notes that the conditions provided by the Indiana Department of Environmental Management in that post-inspection letter were not included in the final permit as argued by Claimant in his motion in opposition. A question of fact appears to exist as to whether those IDEM conditions should have been made a part of the approved permit.
17. Claimant raises questions of fact in regard to whether the permit will have detrimental effects on the efficiency and capacity of the floodway, and those questions preclude the grant of summary judgment. Therefore, the department's motion for summary judgment is denied.
FOOTNOTES
1. See April 29, 1997 Report of Prehearing Conference.
2. On August 4, 1997 requested an extension of time until October 6, 1997 to respond to the Department's Motion For Summary Judgement. The Department had no objection to such an extension. Counsel for the Wells County Drainage Board objected to the extension on August 15, 1997
3. Due to the transfer of the initial administrative law judge on this case to another state agency, a new administrative law judge was assigned this case and a Notice of ALJ Substitution was issued on November 6, 1997.
4. Formerly IC 14-3-3-3.
5. This review by the commission is not required if the administrative law judge is the ultimate authority for the department under IC 14-34-2-2.
6. See IC 14-11-4-3.