FINAL ORDER
The approval of Flood Control Permit FW-18,487 is affirmed subject to the following additional permit condition: The mitigation project under Flood Control Permit FW-18,488 is required under this permit. The approval of Flood Control Permit FW-18,488 is affirmed.
FINDINGS OF FACT
1. [The issue is] whether permit applications #FW-18,487 and #FW-18,488 will result in unreasonably detrimental effects upon fish, wildlife, or botanical resources [in violation of the Flood Control Act (IC 14-28-1)].
2. This proceeding is controlled by IC 4-21.5 (the "Administrative Orders and Procedures Act" or "AOPA") and rules adopted by the Natural Resources Commission (the "Commission") to assist in the implementation of the AOPA. Pursuant to 312 IAC 3-1-1(b), an affected person who is aggrieved by a determination of the Department of Natural Resources may apply for administrative review of the determination under IC 4-21.5 and 312 IAC 3.
3. The Commission is the policy-making Board for the DNR. The Commission makes final determinations with regard to policy or other selected DNR matters and has the authority, in most instances, to affirm, modify, or reverse decisions made by DNR Administrative Law Judges ("ALJ"). For purposes of the Administrative Orders and Procedures Act, IC 4-21.5, the Commission is the ultimate authority for the DNR. See IC 4-21.5-3-9 and IC 14-34-2-2(b)(1).
4. When the Department issues a permit under the Flood Control Act, and administrative review of that decision is taken, the burden of going forward and the burden of persuasion (sometimes collectively referred to as the "burden of proof") rests with the party seeking to set aside the permit.Schafer and Nash v. DNR and Wagoner, 7 CADDNAR 17 (1993); Ind. Code 4-21.5-3-14. Also, Brown v. DNR and Peabody Coal Company, 6 CADDNAR 136 (1993).
5. The Claimants/Intervenors have the burden of proving that the permit issued by the Department to Centre Properties should be set aside.
6. [Within the Flood Control Act,] IC 14-28-1-22(e) provides in pertinent part:
(e) An applicant must receive a permit from the director for the work before beginning construction. The director shall issue a permit only if in the opinion of the director the applicant has clearly proven that the structure, obstruction, deposit, or excavation will not do any of the following:
(1) Adversely affect the efficiency of or unduly restrict the capacity of the floodway.
(2) Constitute an unreasonable hazard to the safety of life or property.
(3) Result in unreasonably detrimental effects upon fish, wildlife, or botanical resources.
(f) In deciding whether to issue a permit under this section, the director shall consider the cumulative effects of the structure, obstruction, deposit, or excavation. The director may incorporate in and make a part of an order of authorization conditions and restrictions that the director considers necessary for the purposes of this chapter.
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7. IC 14-28-1-20 provides:
A person may not do any of the following:
....(2) Except as authorized under section 26.5 of this chapter, erect, make, use, or maintain in or on any floodway, or suffer or permit the erection, making, use, or maintenance in or on any floodway, a structure, an obstruction, a deposit, or an excavation that will do any of the following:
(A) Adversely affect the efficiency of or unduly restrict the capacity of the floodway.
(B) By virtue of the nature, design, method of construction, state of maintenance, or physical condition do any of the following:
(i) Constitute an unreasonable hazard to the safety of life or property.
(ii) Result in unreasonably detrimental effects upon the fish, wildlife, or botanical resources.
8. 310 IAC 6-1-3(38) provides:
"Unreasonable detrimental effects upon fish, wildlife, or botanical resources" means damage to fish, wildlife, or botanical resources which is found likely to occur by the director based upon the opinion of a professional qualified to assess the damage and which:
(A) creates a condition where recovery of the affected resources is not likely to occur within an acceptable period; and
(B) cannot be mitigated through the implementation of a mitigation plan approved by the director."
9. 310 IAC 6-1-3(14) provides:
"Cumulative effects" means the impact which results from the incremental impact of the action when added to other past, present, and reasonably foreseeable future actions regardless of what person undertakes the other actions. Cumulative effects can result from individually minor but collectively significant actions taking place over a period of time. Each of the following elements is considered when assessing the impact of cumulative effects on a floodway:
(A) Adverse effects on the efficiency of, or undue restrictions to the capacity of, the floodway.
(B) Unreasonable hazards to the safety of life or property.
(C) Unreasonable detrimental effects upon fish, wildlife, or botanical resources.
10. In addition to statutory and regulatory requirements, the Department is guided in permitting decisions by Wetlands and Habitat Mitigation Guidelines ("Guidelines"). See Sierra Exhibit 6. On July 22, 1997, the NRC, as the official policy-making board for the DNR, made the decision to implement a non-rule policy document to establish Wetland and Habitat Mitigation Guidelines for projects requiring DNR approval or DNR comment. Id. These guidelines "establish a general framework for the assessment and determination of wetlands or habitat compensatory mitigation where a construction project is likely to reduce or degrade an existing wetland or habitat."
11. One of the key provisions of the Guidelines is sequencing. The sequence to follow during planning is the following: first, avoidance of disturbance; second, minimization of disturbance; and finally, "where these two alternatives do not dispose of the issue, compensatory mitigation for the loss of the natural resources." Guidelines at 2.
12. The Guidelines also establish
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mitigation ratios. The standard minimum mitigation ratio for forested wetlands is 4 acres of created or restored wetlands to 1 acre of destroyed or disturbed wetlands. Guidelines at 2. The standard minimum mitigation ratio may be increased or decreased under certain circumstances.
13. On December 23, 1998, the DNR issued certificates of approval to Centre Properties for construction in a floodway for applications FW-18, 487 and FW-18, 488.
14. The basis of the Claimants' petition for review is that the proposed permitted activities will result in unreasonably detrimental effects upon fish, wildlife and botanical resources. See Claimants More Definite Statement of the Issues (April 28, 1999).
15. At the hearing, testimony on behalf of the Intervenors was presented by their expert witnesses, Ms. Susan Thomas and Dr. James R. Gammon .
16. Ms. Thomas is a conservation biologist with a Bachelor of Science in Psychobiology and a Masters of Science in Zoology. Her professional experience includes 17 years of experience in conservation biology, including a three year tenure as the Sierra Club's Wetland Project. Her work experience includes biological research, conservation planning and restoration, and environmental education and advocacy. She reviewed documents submitted by Applicant in connection with its permit applications as well as documents contained in the Department's files.
17. At the request of Claimants/Intervenors, Ms. Thomas completed a Report on Projected Effects on Fish, Wildlife and Botanical Resources of Department of Natural Resources Permits FW-18,487 and FW-18,488. Sierra Exhibit 12. Thomas concluded in her report and testified at the hearing that the boxing and filling of Behner Brook as permitted under FW-18,487 would have unreasonably detrimental effects upon fish, wildlife, and botanical resources at the site. Id. She opined that Behner Brook's quality was good.
18. Thomas made two visits to the site at issue in which she made observations at the perimeter of the site, one in 1997 and one in March, 1999. She made one additional visit in May of 1999. During the four (4) hour visit in May 1999, Ms. Thomas made only general observations of both the project and the proposed mitigation sites. She did not measure systematically the functions and values performed by the Behner Brook or the proposed wetlands.
19. In the course of her evaluation, Thomas reviewed all of the documents and materials which Centre Properties provided to the Department and which Ms. Thomas felt were relevant and necessary. She also consulted with agency staff individuals at both the Department and at the Indiana Department of Environmental Management.
20. Thomas did not conduct a systematic survey of fish in Behner Brook during any of her site visits. Thomas did not conduct any specific study of macro-invertebrates in Behner Brook during any of her site visits.
21. Based on her experience as a biologist and as an outdoor educator, Ms. Thomas speculated as to what types of fish, wildlife and botanical resources one might expect to find in a stream such as Behner Brook.
22. Ms. Thomas' opinion that the project will result in unreasonable detrimental effects on the fish, wildlife, and botanical resources of Behner Brook is based, in part, on her belief that Centre Properties did not conduct an analysis of alternatives to the project as planned.
23. Ms. Thomas' acknowledged that there is no statutory requirement for an applicant to submit alternative analysis plans to the Department.
24. Ms. Thomas has no formal training in wetland delineation and has never personally designed a created wetland.
25. Claimant/Intervenors' second expert witness was Dr. James Gammon, Professor Emeritus of Zoology at DePauw University. Dr. Gammon is an expert in riverine ecosystems and the effects of development on biological resources, with a particular expertise in fish. Dr. Gammon visited the site once on May 3, 1999, pursuant to a discovery request. He reviewed documents submitted by Applicant in connection with its permit applications as well as documents contained in the Department's files.
26. Dr. Gammon
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completed a Report of Projected Effects on Fish, Wildlife and Botanical Resources in Behner Brook, Heath Ditch and Adjacent Wetlands of the 96th Street and Allisonville Road Development Project of Centre Properties dated Oct. 21, 1999.
27. The site visit lasted four or five hours during which he observed most of the course of Behner Brook within the boundaries of the project site, as well as the Heath Ditch mitigation area.
28. During the site visit, Dr. Gammon made visual observations as to what was in, or near the stream. Dr. Gammon found Behner Brook to be of a lesser quality than Ms. Thomas testified it to be.
29. Dr. Gammon performed an informational investigation, not a biological investigation, of the site. Dr. Gammon did not conduct either a fish or macroinvertebrate study while reviewing the site. He testified that the in-stream habitat of Behner Brook should be sufficient to support species of fish characteristic of small streams.
30. The basis of this testimony was speculative, in that no study of the Behner Brook habitation was done, neither was an evaluation made of whether the created Heath Ditch wetland could or could not replace any lost functions or values from the Behner Brook project.
31. Dr. Gammon concluded in his report that the boxing and filling of Behner Brook as permitted under FW-18,487 would degrade and destroy fish, wildlife, and botanical resource habitat at the site, a point conceded by the DNR and Centre Properties.
32. Although physical habitat might be lost in the actual 405 feet of culvert, fish and other aquatic life would be able to pass through the boxed culvert.
33. The enclosure of Behner Brook in 405 feet of boxed culvert will not greatly effect the stream's water chemistry.
34. Impurities from runoff water flowing over impermeable road and development surfaces outside the floodway will flow into Behner Brook.
35. Heath ditch naturally has its own varying levels of water flow.
36. Kent Hanauer, an environmental biologist for the Department's Division of Fish and Wildlife, testified on behalf of the Department. Mr. Hanauer has a Bachelor of Science in biology with an emphasis on aquatic biology in fisheries.
37. As an environmental biologist, Hanuaer reviews permit applications for the Department and determines whether a proposed project will impact fish, wildlife, and botanical resources and whether those impacts can be minimized or mitigated.
38. He has evaluated approximately 1,200 contruction in the floodway permit applications for the Department. In the course of his employment with the Department, Mr. Hanauer has taken several wetlands related training courses.
39. Mr. Hanauer is an expert in fisheries, wildlife, wetlands, and the mitigation of impacts, with personal knowledge of the jurisdiction and procedure relating to the Indiana Flood Control Act.
40. Mr. Hanauer visited the site on four occasions, the earliest occurring in 1995. As far back as his 1995 site review, Mr. Hanauer assessed Behner Brook as being low to moderate quality. During his review of the permit application for the Centre Properties project, Mr. Hanauer relied on Centre Properties' construction plans, his observations at the site, and his conversations with a District Wildlife biologist, Mark Bennet who had expertise in wildlife biology in particular.
41. The Department initially denied Centre Properties project because it determined that the original proposed length of the boxed culvert, approximately 1,100 feet, would pose unreasonable detrimental effects on fish, wildlife, and botanical resources.
42. The proposal to construct a 405 foot culvert avoided unnecessary impacts to fish, wildlife and botanical resources. The size of the culvert was reduced from approximately 1,100 feet, which was requested in a prior application to the DNR, specifically to avoid habitat and wetland losses at Behner Brook.
43. After the culvert enclosure was reduced from 1,100 to 405 feet, and off site mitigation was proposed, the DNR granted Centre Properties' application.
44. The sole purpose of application FW-18, 488 is to provide mitigation for the impacts associated with application FW-18, 487. Application FW-18, 488 sought the approval of the DNR to create a wetland on approximately 5.2 acres of the project
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site adjacent to Heath Ditch. The proposed wetland will be a forested wetland to compensate for the loss of forested wetlands along Behner Brook. The mitigation ratio for this wetland will be 4.1:1, or 4.1 acres of created or restored wetlands to 1 acre of destroyed or disturbed wetlands.
45. As a component of the mitigation for impacts to fish, wildlife and botanical resources as a result of the construction, the application contains the following features:
a. Existing wetlands at the upstream and downstream portions of the culvert will be preserved.
b. The upstream wetland will be enhanced by the creation of an additional .44 acres of wetlands, and the downstream wetlands will be enhanced by the creation of an additional .22 acres of wetlands.
c. Plunge dams, also know as plunge pools, will be constructed at both the upstream and downstream ends of the upstream wetland, and at the upstream and downstream ends of the downstream wetland.
d. Riprap will be placed at both the inlet and outlet of the culvert to provide energy dissipation. See Centre Properties Exhibits CC 1 - CC 10.
46. Hanauer testimony supports the fact that the project as states will have some negative impact on the fish, wildlife, and botanical resources of Behner Brook, but the effects will not be unreasonably detrimental.
47. The effects at Behner Brook Will not be unreasonably detrimental in part because of compensatory mitigation at Heath Ditch under FW-18,488.
48. The wetlands in the areas surrounding Heath Ditch are similar in value and function - riparian wooded wetlands - to those that will be impacted by the project at Behner Brook.
49. The mitigation plans at Heath Ditch include an eight-year monitoring plan to insure proper development of the proposed wetland mitigation for Behner Brook. See Centre Exhibit FF, IDEM § 401 Water Quality Certification.
50. Plunge pools will be used to oxygenate stream waters depleted as a result of algae originating in an upstream pond on the brook. The proposed plunge pools at the upstream and downstream ends of the Behner Brook construction will provide aeration for improved oxygen content in the water, and will provide additional habitat.
51. Mitigation at Behner Brook will also include planting trees to provide forested wetlands. Graded and contoured areas adjacent to the upstream and downstream Behner Brook wetlands will be vegetated to provide a buffer for the wetlands.
52. The proposed grading and contouring adjacent to the Behner Brook wetlands will have no long-term impacts on the quality of those wetlands.
53. The mitigation sites at Behner Brook and Heath Ditch will be protected by a conservation easement, which will protect the habitat at that site, including fish, wildlife and botanical resources. This easement is designed to insure continued protection "in perpetuity." See Centre Exhibit FF.
54. In the event that mitigation is unsuccessful, the DNR may enforce the Flood Control Act through the imposition of violations and civil penalties against Centre Properties.
55. Given the mitigation efforts associated with permits FW-18,487 and FW-18,488, the effect on fish, wildlife and botanical resources will be "minimal and reasonable".
56. Dr. Gary Finni, witness for Centre Properties, is a Ph.D. in Aquatic Entomology with a Masters in entomology and Bachelors degree in biology. His doctoral studies include research on the aquatic entomology of Indiana rivers and streams. See Centre Exhibit GG.
57. Dr. Finni, employed by BHE Environmental, conducted a sampling of aquatic macroinvertebrates in October, 1999, at Behner Brook. He took four samples for the purpose of a rapid biological assessment. Finni testified that this assessment is a procedure to collect and
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process samples of organisms from the field and compare the information with "information about the normal water quality requirements of those organisms, along with the numerical abundance of the organisms..." in order to understand the sampling area.
58. The rapid biological assessment is accepted by the scientific community including state and federal regulatory agencies as a viable scientific method.
59. As a result of the rapid biological assessment testing at four sites along Behner Brook, Dr. Finni collected one hundred organisms in two hours. USEPA recommends 250 organisms collected in fifteen minutes.
60. Three species of flies are indicative of good water quality - mayflies, caddis flies and stone flies. Dr. Finni collected none of these in any of his four rapid biological assessment samples from Behner Brook.
61. The three main groups of organisms which would indicate a good quality stream were completely absent at all four sample locations. The species collected in general occurred at very low abundances.
62. Caddis flies were completely absent from the Behner Brook samples even though they constitute a large component of the White River benthic invertebrate fauna, one-half mile proximate to the sampling sites.
63. The lack of a healthy macroinvertebrate community in Behner Brook is likely the result of the "flashy" nature of the stream. Because of its urban location and the impacts of unrelated upstream residential development and impoundments, the stream is subject to periods of high flow, followed by periods of low flow or even no flow at all. Such conditions are expected to be a regular occurrence in this stream. As a result of these conditions, the stream is not expected to be able to support macroinvertebrates indicative of a quality habitat.
64. Dr. Finni rated the stream's quality at two and one-half to three on a scale of ten, based upon his study of the macroinvertebrates in Behner Brook.
65. Petitioners' own witness, Dr. James Gammon, rated it as a four on a scale of one to ten.
66. Dr. Finni stated that the concrete culvert would not prove toxic to fish, wildlife and botanical resources, that it would not impede movement of wildlife, and that it would not have an unreasonably detrimental effect on the fish, wildlife and botanical resources of Behner Brook.
67. Dr. Finni classified Behner Brook as an intermittent stream, the contributions of weather conditions and construction in the vicinity notwithstanding.
68. Dr. Reeves, an environmental consultant for BHE Environmental, testified on behalf of Centre Properties. He has a Ph.D. in Wildlife and Wetland Ecology and a Bachelors degree in Wildlife Ecology and Resource Management.
69. Dr. Reeves, an expert in the design implementation, operation, and management of created wetlands, has done jurisdictional method delineations, designed compensatory mitigation wetlands, conducted surveys for threatened and endangered flora and fauna, and developed an endangered species management plan for a military installation. He has designed or monitored a total of eleven created wetlands. He has performed functional evaluations of hundreds of wetlands.
70. Dr. Reeves performed a wetland delineation at the proposed mitigation site at Heath Ditch and found that the proposed location did not meet even one of three criteria for a wetland, established by the US Army Corps of Engineers. These indicators include: 1) predominance of hydrofidic vegetation; 2) hydric soils; and 3) a positive indicator or conclusive hydrology data indicating presence of wetland hydrology.
71. Dr. Reeves found the proposed mitigation site to be of old field habitat, most likely earlier cleared for agricultural purposes or as a result of gravel mining. Based on Dr. Reeve's testimony, the proposed area is appropriate and adequate for the compensatory mitigation wetland, and that the decision to mitigate the entire acreage at the forested ratio is a conservative approach.
72. Dr. Reeves performed a functional assessment of the jurisdictional wetland areas at Behner Brook and for the proposed mitigation wetland. This assessment estimates the ecological values performed by a particular wetland, based on wildlife and vegetation characteristics. Dr. Reeves employed the Ohio Wetland
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Assessment Method, developed by Ohio EPA. The method uses objective criteria to award points based on unusual features, species present, and other factors.
73. Further assessments were performed on the Behner Brook and Heath Ditch wetlands, evaluating pre-permit and post-permit conditions, treating the Behner Brook area as two separate parcels so as to obtain more accurate assessments. Dr. Reeves scored the southern section of Behner Brook as a 30 - very high moderate - falling to 29 1/2 post-permit. The northern portion of Behner Brook scored at 21 1/2, rising to 22 1/2 post-permit, a moderate low result. Heath Ditch as created would score 27, possibly rising to 35 1/2 twenty years into the future.
74. The Heath Ditch mitigation parcel is expected to obtain a higher score than the higher quality Behner Brook parcel. The proposed relocation of hydric soils into the created wetland will have several beneficial effects, including creation of a persistent seed bank of wetland plants and the more rapid colonization of the active microbial community from a seed source than from having seed brought in.
75. The use of wetland topsoil from an existing wetland is a fairly standard practice in mitigation procedures, is used around the country with good results, and is viewed favorably by the regulatory community.
76. There should be suitable hydrology for the success of the proposed Heath Ditch mitigation wetland. This site is in the floodway of both the White River and Heath Ditch. Water sources for the wetland will include rainfall, groundwater, flood waters from Heath Ditch, and flood waters from the White River.
77. Dr. Reeves' testimony supports a finding that the hydrology at Heath Ditch is sufficient to maintain the hydric soils and allow successful development of a wetland. The activities proposed under the permits at issue would not result in an unreasonable detriment to fish, wildlife and botanical resources on the site. He futher stated that the permit plus mitigation would result in an added benefit from a floristic quality standpoint, as old field habitat was replaced by viable wetland.
78. Potential sedimentation of the proposed Heath Ditch mitigation wetland from White River flooding is not anticipated, as sedimentation has not adversely affected other wetlands in the immediate vicinity of the proposed wetland.
79. The proposed Heath Ditch mitigation wetland should not adversely affect normal water flows in Heath Ditch because the wetland is designed so that only flood flows from Heath Ditch will enter the wetland.
80. The proposed Heath Ditch mitigation wetland constitutes "in-kind" mitigation for the Behner Brook wetlands.
81. The proposed Heath Ditch mitigation wetland is sufficiently proximate to the Behner Brook wetlands for mitigation purposes.
82. The mitigation ratio of 4:1 to replace the Behner Brook wetlands is consistent with DNR habitat and wetlands mitigation guidelines. The 4:1 mitigation ratio could even be considered conservative because a 4:1 ratio is recommended for the replacement of forested wetlands, but not all of the impacted wetlands at Behner Brook are forested. In addition, the degraded nature of Behner Brook could be used to justify a lesser ratio. See Sierra Exhibit 6.
83. Claimants / Intervenors established through cross examination that FW-18,487 does not require as a condition to the permit that the mitigation plan for Heaths Ditch, FW-18,488, be accomplished. This finding does not require that FW-18,487 be set aside, but supports the need for modification to that permit.
84. The FW-18,487 permit should include the requirement that FW-18,488 mitigation shall be performed as an additional condition.
85. The weight of the evidence presented at hearing is in favor of the issuance of Permits FW-18,487 with modification as decribed, and issuance of FW-18-488.
86. The evidence presented shows that any negative impacts caused on Behner Brook by the project as stated, can be mitigated by the created wetland area at Heath Ditch, as well as by the mitigation plans at Behner Brook site itself.
87. In light of all of these factors, the project, as permitted by the Department under Permit FW-18,487 with the condition that FW-18,488 mitigation plan be performed, and under permit FW-18,488, will not result in unreasonably
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detrimental effects on Behner Brook or result in significant environmental harm.88. After hearing the evidence, reviewing the briefs, and examining the exhibits, the trier of fact concludes the permit applications should be approved but modified as previously discussed.
CONCLUSIONS OF LAW
1. This proceeding is controlled by IC 4-21.5 (the "Administrative Orders and Procedures Act" or "AOPA") and rules adopted by the Natural Resources Commission (the "Commission") to assist in the implementation of the AOPA. Pursuant to 312 IAC 3-1-1(b), an affected person who is aggrieved by a determination of the Department of Natural Resources may apply for administrative review of the determination under IC 4-21.5 and 312 IAC 3.
2. The Natural Resources Commission is the policy-making Board for the DNR. The Commission makes final determinations with regard to policy or other selected DNR matters and has the authority, in most instances, to affirm, modify, or reverse decisions made by DNR Administrative Law Judges ("ALJ"). For purposes of the Administrative Orders and Procedures Act, IC 4-21.5, the Commission is the ultimate authority for the DNR. See IC 4-21.5-3-9 and IC 14-34-2-2(b)(1).
3. The Department has jurisdiction over the floodways of Indiana under the Flood Control Act at IC 14-28-1 et seq.
4. Floodway, for the purposes of the Flood Control Act is defined as: the channel of a river or stream; and the parts of the flood plain adjoining the channel that are reasonably required to efficiently carry and discharge the flood water or flood flow of a river or stream. See IC 14-8-2-102.
5. Under the Flood Control Act, a party wishing to make a deposit or an excavation in a floodway, must obtain a permit from the Department. See IC 14-28-1-22(c). Under IC 14-28-1-22(e)(3) the Director shall issue a floodway construction permit upon clear proof that the deposit or excavation will not, among other things, result in unreasonably detrimental effects upon fish, wildlife, or botanical resources.
6. As provided in 310 IAC 6-1-3(38):
"'Unreasonable detrimental effects upon fish, wildlife, or botanical resources' means damage to fish, wildlife, or botanical resources which is found likely to occur by the director based upon the opinion of a professional qualified to assess the damage and which:
(A) creates a condition where recovery of the affected resources is not likely to occur within an acceptable period; and
(B) cannot be mitigated through the implementation of a mitigation plan approved by the director."
7. The law does not require a project to have no impact, but rather requires that a project have no unreasonably detrimental effects on fish, wildlife, and botanical resources. See IC 13-28-1-22(e).
8. The DNR's review and approval of Permits FW-18,487 and FW-18,488 was consistent with the DNR's Wetlands and Habitat Mitigation Guidelines implemented by the NRC in 1997. The guidelines serve as a non-rule policy document. The guidelines are not binding on the DNR in assessing and evaluating permit applications, and have no force and effect of law.
9. When the DNR issues a permit and administrative review is taken, the burden of proof rests with the party seeking to set aside the permit. IC 4-21.5-3-14; Schafer and Nash v. DNR and Wagoner, 7 CADDNAR 17 (1993) and Brown v. DNR and Peabody Coal Co., 6 CADDNAR 136 (1993).
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10. The Claimants/Intervenors have the burden of proving the permits issued by the DNR should be set aside. Claimants have failed to meet their burden of proof that the projects as permitted would have an unreasonably detrimental effect upon the fish, wildlife and botanical resources of Behner Brook and Heath Ditch.