CADDNAR
City of New Albany v. Ecosystems Connections Institute, LLC & DNR (22-048W), 16 CADDNAR 27
Administrative Cause Number: 21-027W
Administrative Law Judge: Elizabeth Gamboa
Petitioner Counsel: Nicholas Gahl, Jane Dall Wilson, & Matthew Olsen
Respondent Counsel: Rebecca McClain, Daniel McInerny, & Jackson Schroeder
Date: November 15, 2023
[See Editor’s note at end of this document regarding change in the decision’s original format.]
FINAL ORDER:
ECI’s Motion for Summary Judgment is GRANTED.
1. On June 25, 2021, City of New Albany (hereinafter “City”) filed a Petition for Administrative Review (hereinafter “Petition”) with the Natural Resources Commission (hereinafter “Commission”) alleging that the Department’s approval of Permit FW-30915-0 did not comply with the Flood Control Act. See Petition.
2. By filing the Petition, the City initiated a proceeding governed by Indiana Code 4-21.5-3, sometimes referred to as the Administrative Orders and Procedures Act (AOPA), and the administrative rules adopted by the Commission at 312 IAC 3-1 to assist with the implementation of AOPA. See IC 4-21.5-3-1, et seq.
3. The Commission is the ultimate authority of the Department in this matter. Ind. Code 14-10-2-3.
4. Substantively, this matter is governed by Ind. Code 14-28, also known as the Flood Control Act.
5. The Commission has jurisdiction over the subject matter and persons involved in this dispute.
6. Administrative Law Judge (ALJ) Dawn Wilson was appointed to preside over this matter pursuant to IC 14-10-2.
7. A Telephonic Prehearing Conference (PHC) was held as scheduled on July 22, 2021. By agreement of the parties, a Telephonic Status Conference (TSC) was scheduled for August 24, 2021 to give the parties time to discuss settlement options.
8. An additional TSC was scheduled for September 28, 2021 at the August 24, 2021 TSC.
9. On September 1, 2021, ALJ Wilson ordered the parties to file status reports that included a proposed case management plan by September 28, 2021. The ALJ also vacated the TSC scheduled for September 28, 2021.
10. By order dated September 30, 2021, ALJ Wilson approved the parties’ Joint Status Report and Proposed Case Management Plan submitted on September 22, 2021.
11. By notice dated December 7, 2021, ALJ Wilson informed the parties that the case was being reassigned due to her retirement from the Commission.
12. The City filed a Motion for Extension of Prehearing Case Management Order on January 26, 2022.
13. On February 16, 2022, ALJ Elizabeth Gamboa notified the parties that she had been appointed by the Commission to preside over the case. ALJ Gamboa granted the City’s motion to extend the case management order and scheduled a TSC to discuss a new case management order.
14. A TSC was held as scheduled on March 2, 2022, at which a final TSC was scheduled for June 27, 2022 and an administrative hearing was tentatively scheduled for July 21, 2022. The parties requested additional time to set additional deadlines by agreement.
15. A case management order was established by agreement of the parties on March 17, 2022. The parties agreed that a final prehearing conference would be held June 27, 2022 and, if necessary, an evidentiary hearing would be held July 20 and July 21, 2022.
16. The parties filed a Joint Motion for Extension of Case Management Order Deadlines on April 8, 2022, requesting a thirty-day extension of the case management order because the parties were actively engaged in settlement negotiations.
17. The case management order was extended as requested by the parties, giving the parties until July 18, 2022 to file dispositive motions.
18. By order dated May 16, 2022, the case management order was held in abeyance to give the parties time to explore settlement options. The parties were ordered to file status reports by June 15, 2022, and thereafter every thirty days until further order.
19. In joint status reports filed June 15, 2022, July 18, 2022, and August 15, 2022, the parties reported they were engaged in settlement negotiations.
20. In a joint status report filed September 15, 2022, the parties reported settlement was not possible and requested a status conference. A TSC was held October 6, 2022 after which the parties were ordered to file an agreed proposed case management order by November 11, 2022.
21. The City filed a Motion for Immediate and Emergency Stay of Activity to Remove Dam on October 13, 2022. A briefing schedule was established and a hearing on the Motion was held on November 22, 2022. The parties filed post-hearing briefs.
22. The City’s motion to stay was denied by order dated December 12, 2022.
23. ECI filed a Motion for Summary Judgment, Brief in Support of Motion for Summary Judgment and a Designation of Evidence on March 14, 2023.
24. The Department filed DNR’s Response in Concurrence with ECI’s Motion for Summary Judgement on March 14, 2023.
25. On March 24, 2023, the city filed an objection to an amendment that the Department granted to FW-30915-0. No relief was sought in the objection and no action was taken by the Commission in response to the objection.
26. The City filed its Brief in Opposition to ECI’s Motion for Summary Judgment and its Designation of Evidence on April 12, 2023.
27. ECI filed a Reply in Support of Motion for Summary Judgment, a Motion to Strike the City’s Exhibit 1, and a Motion to Strike the City’s Exhibits 2-4 on April 27, 2023. ECI moved to strike the Exhibit 1, the Affidavit of Larry Summers on several grounds, and the City’s Exhibits 2-4 as untimely. ECI withdrew its timeliness objection to Exhibits 2-4, but maintained that Exhibit 2, the Affidavit of Jane Dall Wilson, should be struck.
28. The Department filed a Concurrence with ECI’s Reply on April 28, 2023.
29. The City was given to May 18, 2023 to respond to the motions to strike and ECI was granted to June 1, 2023 to file a reply to the City’s response to the motions to strike.
30. On May 18, 2023, the City filed a response to ECI’s motion to strike and requested a hearing on ECI’s motions to strike and motion for summary judgment.
31. ECI filed a reply on the motions to strike and an objection to the hearing on June 1, 2023.
32. The City’s motion for hearing was denied by order dated June 15, 2023.
33. On July 11, 2023, the City filed a notice of objection to the third amendment to FW-30915-0.[1]
34. An order on ECI’s motion to strike was issued August 14, 2023. ECI’s motion to strike the Summers Affidavit was granted and the motion to strike the Wilson Affidavit was denied.
Summary Judgment Standard
35. A party may move for summary judgment at any time after a proceeding is assigned to the administrative law judge. I.C. § 4-21.5-3-23.
36. Except with respect to service of process governed by I.C. § 4-21.5-3-1, and the final disposition of an administrative proceeding governed by I.C. § 4-21.5-3- 28 and 29, Trial Rule 56 of the Indiana Rules of Trial Procedure controls the consideration of a motion for summary judgment. I.C. § 4-21.5-3-23.
37. The ALJ will consider a summary judgment “as would a court that is considering a motion for summary judgment filed under Trial Rule 56 of the Indiana Rules of Trial Procedure.” I.C. § 4-21.5-3-23. Summary judgment shall be granted “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.” Ind. Trial rule 56(c); Frendeway & Bartuska v. Brase, 15 CADDNAR 121, 122 (2020).
38. The party moving for summary judgment bears the burden of establishing the party is entitled to summary judgment regardless of whether the party would have the burden of proof in an evidentiary hearing. Mueller-Brown v. Caracci, 13 CADDNAR 156, 157 (2013).
39. The burden of establishing there is no material factual issues is on the party moving for summary judgment. Morris v. Crain, 969 N.E.2d 119, 123 (Ind. Ct. App. 2012). Once the movant has met this burden, the opposing party must present sufficient evidence to show the existence of a genuine triable issue. Id.
40. “A party opposing the motion shall designate . . . each material issue of fact which that party asserts precludes entry of summary judgment and the evidence relevant thereto.” Ind. Trial Rule 56(C).
41. Summary judgment shall be granted “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.” Id.
42. Affidavits supporting or opposing a motion for summary judgment “shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein.” Trial Rule 56(E).
Undisputed material facts
43. The Department received a permit application on February 2, 2021 prepared by ECI. The project for which the permit was sought is described as removal of the Providence Mill Dam (Dam) in Silver Creek located in New Albany, Indiana. ECI Motion for Summary Judgment, Exhibit 1.
44. Silver Creek is listed as a Navigable Waterway in Floyd County “navigable from its junction with the Ohio River for 3.0 miles” in Information Bulletin 3, Navigable Waterways Roster, Fifth Amendment, (IB 3) DIN 20211020-IR-312210433NRA. According to research held by the Commission, Silver Creek was included in IB 3 based on a determination of navigability by the Army Corps of Engineers. Affidavit of Jane Dall Wilson, Petitioner’s Exhibit 2.
45. A “Statement of Affirmation” was included with the application and signed by Herb Manifold from ECI. The statement included a certification that the signer, to the best of the signer’s knowledge, possesses the authority to undertake the proposed construction and grants the Department the right to enter the project location for inspection of the work. Id.
46. The removal of the Dam is the first phase of a planned two-phase project to reconnect Silver Creek to the Ohio River. Id. The second phase would be removal of Blackiston Mill Dam. Id.
47. Included within the Department’s permit application file is a statement from the United States Department of the Interior Fish and Wildlife Service regarding the impact removal of the Dam would have on the “Loop Island Wetlands” located downstream of the Dam. The letter states that “water velocities, water depths, and most importantly shear stress at the location of the Wetlands are expected to experience NO CHANGES between now and the removal of the Dam.” Id.
48. A public hearing to discuss the removal of the Dam was held March 31, 2021.
49. The permit was approved by the Department on June 9, 2021. Id.
50. David Knipe is Director of the Department’s Division of Water. He has served in that position since 2021. Before that, he served as the Engineering Section Manager for the Division of Water from 1999 to 2021. He served as Head of the Hydrology and Hydraulics Section of the Division for four years before becoming the Engineering Section Manager. Exhibit 2, Knipe Affidavit.
51. If a project for which a permit is sought under the Flood Control Act will result in a loss or decrease of effective cross-sectional flow area of the floodway, the applicant may be required to submit computer-generated modeling to determine the impact of the project. Id.
52. If such a project will result in an increase of the effective cross-sectional flow area and will therefore have no negative effects on the floodway during a regulatory flood event, no computer modeling is required. Id.
53. ECI was not required to submit hydraulic modeling associated with the removal of the Dam because removal of the Dam would increase, rather than decrease, the cross-sectional flow area of the floodway of Silver Creek. Id.
54. After FW-30195-0 was approved, Christopher B. Burke Engineering prepared a modeling report associated with the proposed Dam removal. The modeling analysis concluded that removal of the Dam would result in no increased surcharge upstream or downstream of the Dam. Id.
55. The Department’s interpretation of 312 IAC 10-2-3 is that if the proposed project will not increase surcharge in excess of .14 feet upstream of the project during a 100-year flood event, the project does not constitute an “unreasonable hazard to the safety of life or property.” Id.
56. The Dam removal project complies with the Department’s hydraulic requirements. Id.
57. Daniel Gautier has been employed by the Department Division of Fish and Wildlife as an Environmental Biologist for the past 20 years. He has been directly involved in the review of permit applications for construction in a floodway, particularly with respect to potential impacts to fish, wildlife, and botanical resources caused by proposed construction projects. His focus is whether the work proposed in a permit application will cause unreasonable detrimental impacts to fish, wildlife and botanical resources. Affidavit of Daniel Gautier (Gautier Affidavit), Exhibit 8.
58. Gautier conducted the fish, wildlife, and botanical impact review of ECI’s application. As part of his review, he solicited input from other members of the Department’s Division of Fish and Wildlife. Id.
59. Gautier noted that there would be erosion and sedimentation during deconstruction, but those impacts would not be unreasonably detrimental. Id.
60. Gautier determined the following:
· No potential wetlands would be affected;
· There will be no impact to fish or mussels and their habitat;
· There will be no impact to the habitat of endangered species;
· No contaminants were observed;
· The river/stream affected by the project (Silver Creek) is not on the list of natural, scenic, or recreational rivers in Indiana;
· Silver Creek is not on IDEM’s list of impaired biotic communities.
61. Effects to silver maple saplings/whips will not be unreasonably detrimental. A condition of the permit requiring revegetating bare and disturbed areas would cure any concerns about the effects to silver maple saplings/whips. Id.
62. Erosion and sedimentation during deconstruction of the dam would occur, but those impacts would not be unreasonably detrimental and should be minimized with implementation of erosion and sediment control conditions in the permit. Id.
63. Matt Mead, a Water Resources Engineer employed by Christopher B. Burke Engineering, LLC, prepared hydraulic analysis of the proposed removal of the Dam after the permit was granted. He determined removing the Dam would not result in an increase of surface water elevations upstream of the Dam but would decrease flood elevations of up to -0.15 feet during a 100-year flood event and would result in no increase in regulatory flood elevations downstream of the Dam. Exhibit 4.
64. Mead determined that under no modeled scenario does the Dam removal result in an increase in regulatory flood elevations. Id.
65. In Mead’s professional opinion, the removal of the Dam complies with all the Department’s hydraulic requirements.
66. Jerry Sweeten is the Senior Restoration Ecologist and an owner of ECI. He holds a Bachelor of Science in Biology and Environmental Studies, a master’s degree in Natural Resources with a teaching minor in Environmental Education and a Ph.D. in Aquatic Ecology. Sweeten has studied and documented the effects of dam removal on the aquatic habitat streams, using the Index of Biotic Integrity with the Qualitative Habitat Evaluation Index. He has prepared several reports on removal of low head dams in Indiana and Michigan. Exhibits 9 -12.
67. Sweeten determined the substrate of Silver Creek is not good habitat for freshwater mussels, and he found no evidence of live mussels or shell material during his survey of Silver Creek. Exhibit 9, Exhibit 11.
68. Sweeten opined removal of the Dam would have the following impacts:
a) After Dam removal, the sediment currently trapped behind the Dam will fill the plunge pool downstream of the Dam and the stream bottom will return to normal riffle, pool run morphometry which will benefit Silver Creek. See Exhibit 12.
b) There will be no adverse sedimentation downstream of the Dam after removal and there will be no adverse affects on the Loop Island Wetlands located downstream of the Dam;
c) Removal of the Dam will result in an increase in fish species richness and abundance upstream of the Dam; and
d) Current safety hazard associated with the Dam would be eliminated.
Exhibits 9, 11 and 12.
69. The ownership of the Dam was contested at the Motion for Stay hearing held on November 22, 2022. Petitioner’s Exhibit 4. There is no evidence ownership of the Dam has been judicially determined.
70. ECI argues that the Department’s approval of the permit was proper because removing the Dam will not adversely affect the efficiency of or unduly restrict the capacity of the floodway, will not result in an unreasonable hazard to the safety of life or property, and will not result in unreasonably detrimental effects upon fish, wildlife or botanical resources.
71. The Department concurs with ECI’s arguments.
72. The City counters FW-30915-0 should not have been approved for several reasons. The City argues ECI lacks authority to apply for, and execute on, the permit because it does not have an ownership interest or authorization from the owner to do so. The City also argues that it has “the most cognizable interest” in the Dam, and owners whose deeds show ownership to the center of Silver Creek would be negatively impacted by the removal of the Dam.
73. The City further argues that removal of the Dam may negatively impact the ability of local wildlife to access water and will eliminate the impoundment upstream of the Dam, issues which, according to the City, have not been considered. The City further argues ECI has no authority to enter the property to remove the Dam.
74. The City also argues that Silver Creek is not a navigable waterway at the Dam, or, if Silver Creek is navigable, that ECI failed to meet the requirements of the Navigable Waterways Act, I.C. § 14-29-1.
75. It is not clear whether the City contests the Department’s determination the project will not adversely affect the efficiency of or unduly restrict the capacity of the floodway. The City’s Brief in Opposition to ECI’s Motion for Summary Judgment contains the following heading: “the City does not contest the restricted capacity of the floodway factor under the limited regulatory inquiry.” However, the City argues in the Brief “that the values shown in Tables 2, 3, 4 and 5 of the Modeling Report do not accurately depict the water surface elevation differences between the existing and proposed conditions because the Dam is inundated in each of the modeled conditions.” Brief in Opposition to Motion for Summary Judgment, page 19.
76. The City further argues there are questions of fact as to whether the removal of the Dam presents a hazard to wildlife and whether the removal of the Dam presents a hazard to safety of life or property.
Conclusions of Law
77. A person desiring to “erect, make, use, or maintain a structure, an obstruction, a deposit, or an excavation; or suffer or permit a structure, an obstruction, a deposit, or an excavation to be erected, made, used or maintained in or on a floodway” must obtain a permit issued by the Department. IC § 14-28-1-22(c).
78. The permit shall be granted if the Department determines “the applicant has clearly proven” the proposed activity will not: 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. IC § 14-28-1-22(h).
79. The Commission has adopted rules pursuant to I.C. § 4-22 to assist with the implementation of I.C. § 14-28-1. 312 IAC 10-1.
80. The term “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 elevation of at least fifteen-hundredths (0.15) of a foot as determined by comparing the regulatory flood elevation under the project condition to that under the base condition.” 312 IAC 10-2-3.
81. A “regulatory flood” is “a flood having a one percent (1%) probability of being equaled or exceeded in a year as calculated by a method and procedure that is approved by the commission. The regulatory flood is equivalent to the base flood or the 100-year frequency flood.” 312 IAC 10-2-35.
82. “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.”
312 IAC 10-2-5.
83. “Unreasonable hazard to the safety of life or property means a condition that is likely to: 1) be caused by the design or construction of the project; and result during a regulatory flood in either: (A) the loss of human life; or (B) damage to public or private property to which the license applicant has neither ownership nor a flood easement.” 312 IAC 10-2-40.
84. “Unreasonable detrimental effects upon fish, wildlife, or botanical resource” is defined as “damage to fish, wildlife, or botanical resources that is found likely to occur by the director based upon the opinion of a professional qualified to assess the damage and: 1) creates a condition where recovery of the affected resources is not likely to occur within an acceptable period; and 2) cannot be mitigated through the implementation of a mitigation plan approved by the director.” 312 IAC 10-2-39.
Will the Removal of the Dam Adversely Affect the Efficiency of or Unduly Restrict the Capacity of the Floodway?
85. To the extent the City contests this element of the permit, the City argues the Burke Report does not accurately depict the water surface elevation differences between the existing and proposed conditions because the Dam is inundated in each of the modeling conditions.
86. The undisputed evidence is that no modeling was required because the removal of the Dam would increase, rather than decrease, the cross-sectional flow area of the floodway of Silver Creek. Knipe Affidavit. The City does not dispute Knipe’s testimony in this regard. Further, the Burke report, submitted after the permit was approved, could not have been considered by the Department in reaching this determination.
87. As the removal of the Dam will not cause an increase in surcharge, the project will not adversely affect the efficiency of, or unduly restrict the capacity of, the floodway. 312 IAC 10-2-3.
Will Removal of Dam Pose an Unreasonable Hazard to the Safety of Life or Property as Described in 312 IAC 10-2-40?
88. The City argues a question of fact is raised on this issue because removing the Dam will, in general, damage property ECI does not own. The City further argues that the differences in water surface elevation will create an unreasonable hazard to property near the Dam. City’s brief in opposition, page 21.
89. 312 IAC 10-2-40 is concerned with the effects removing the Dam would have during a regulatory flood event.
90. The City’s argument involves general damage to property ECI does not own. However, the City has not presented evidentiary material creating an issue of fact on the issue of whether removal of the Dam would result in a condition that is likely to result in the loss of human life or damage to public or private property not owned by ECI during a regulatory flood event.
91. Likewise, the City’s argument that properties surrounding the Dam could generally be affected due to changes in water surface levels caused by removal of the Dam is not an inquiry relevant to the Department’s review under 312 IAC 10-2-40 because it does not involve loss during a regulatory flood event.
Will Removal of the Dam Cause Unreasonable Detrimental Effects upon Fish, Wildlife, or Botanical Resources?
92. The Department’s determination of whether the project will result in unreasonable detrimental effects upon fish, wildlife, or botanical resource is based on the opinion of a professional qualified to assess the effects the proposed project will have on fish, wildlife and botanical resources.
93. The City argues that no consideration appears to have been given to the issue of whether the removal of the Dam will impact local wildlife’s ability to access water because removal of the Dam will eliminate impoundment upstream of the Dam.
94. The undisputed evidence is that the effects the project could have on fish, wildlife or botanical resources was examined by the Department and it was determined that the effects would not be unreasonable.
95. The City has not presented evidence to dispute ECI’s evidence on this issue.
Does the Question of Ownership of the Dam Impact the Validity of the Permit?
96. The City argues that the permit should not have been granted because ECI has no ownership interest in the Dam and no authority to enter the property surrounding the Dam as needed to remove it. According to the City’s argument, it has ownership interests in the Dam and, because the City objects to the project, the permit should be denied.
97. Under Ind. Code § 14-28-1-22, the Department shall issue a permit if the conditions stated therein are met. This statute does not require the owner of the property on which the project will occur to apply for the permit. As previously discussed, the permit application meets the requirements of this statute.
98. Further, for the purposes of applications issued by the Department under the Flood Control Act, the word “owner” is defined as the person:
(1) listed on the tax assessment rolls as being responsible for the payment of real
property taxes imposed on the property; and
(2) in whose name title to real property is shown.
I.C. § 14-11-4-1.
99. The City has not presented evidence that it is listed on the tax assessment rolls or that title to the Dam is listed in the City’s name. Therefore, it is not an owner as defined by statute.
100. Undertaking a construction project on someone else’s property may subject to the permittee to damages assessed in a civil lawsuit. However, when FW-30915-0 was approved, there was no requirement in I.C. § 14-28-1-22 that the applicant establish ownership of the property on which the project would be undertaken.[2]
101. The Commission has no authority to impose a requirement to I.C. § 14-28 that did not
exist when the permit was approved.
102. Further, the Commission’s authority is limited to that provided by the legislature. The Commission has no authority to determine ownership of property. That issue is left to the circuit and superior courts of the county. There is no evidence that ownership of the Dam has been determined by a county circuit or superior court or any other court of relevant jurisdiction.
Navigability of Silver Creek:
103. The City also argues Silver Creek is not a navigable waterway because the determination Silver Creek is navigable is not based on a judicial determination.
104. The question of whether Silver Creek is a navigable waterway was raised in the hearing on the City’s Motion to Stay without objection. The City’s argument in this regard will therefore be addressed.
105. “Navigable” is defined in 312 IAC 1-1-24 as a
waterway that has been declared to be navigable or a public highway by one (1) or more of the following:
(1) A court.
(2) The Indiana General Assembly
(3) The United States Army Corp of Engineers.
(4) The Federal Energy Regulatory Commission.
(5) A board of county commissioners under IC 14-29-1-2.
(6) The commission following a completed proceeding under IC 4-21.5.
106. The City argues that the determination of navigability of Silver Creek was determined by the Army Corp of Engineers. See Wilson Affidavit. Therefore, by definition, Silver Creek is a navigable waterway.
107. In its Brief in Opposition of ECI’s Motion for Summary Judgment, the City, for the first time, argues that assuming navigability of Silver Creek at the Dam, ECI’s permitting process is not complete because the Department did not conduct the review required under I.C. § 14-29-1, the Navigable Waterways Act (NWA).
108. ECI argues that the City has waived this argument by raising for the first time in its response to the motion for summary judgment.
109. The City’s petition requested review of FW-30915-0 under § 14-28-1, the Flood Control Act. The City has not requested amendment of it petition pursuant to I.C. § 4-21.5-7 to include a request for review of the permit under the Navigable Waterways Act (NWA).
110. An administrative complaint “need not ‘enumerate precisely every event to which a hearing examiner may finally attach significance.’” Indiana Office of Environmental Adjudication v. Kunz, 714 N.E.2d 1190, 1194 (Ind. Ct. App. 1999), quoting L.G. Balfour Co. v. Federal Trade Comm’n 442 F.2d 1, 19 (7th Cir. 1971). “Rather, the purpose of the administrative complaint is to give the responding party notice of the charges against him.” Id.
111. In the context of the present administrative appeal, the Respondents should have been provided, at minimum, notice of the additional legal basis asserted by the City in its Petition.
112. Under NWA, a person may not place fill, or erect a permanent structure in; remove water from; or remove material from, a navigable waterway without a permit from the Department. I.C. § 14-29-1-8. If a permit for the activity has been granted pursuant to I.C. § 14-28-1, a separate permit under the NWA is not required; however, the permit issued under I.C. § 14-28-1 for activity in a navigable waterway must apply the requirement of I.C. § 14-29-1-8.[3]
113. Respondents were not put on notice that the City is also seeking review of the permit until almost three years after the Petitioner for review was filed.
114. If, as the City argues, the NWA imposes additional conditions on the review of the permit, Respondents were entitled to notice of this legal theory before this late stage in the proceedings.
115. The City’s argument the requirements of the NWA have not been examined is therefore waived.
[EDITOR’S NOTE: The original format of the Administrative Law Judge’s Findings of Fact, Conclusions of Law, and Final Order has been modified to correspond with CADDNAR format. The Final Order, has been relocated to the “Final Order” section at the beginning of this document.]
[1] The City also filed a Petition for Administrative Review and Request for Stay of Permit FW-30915-3 in a separate action which has been assigned Administrative Cause No. 23-041W.
[2] The following provision was added to I.C. § 14-28-1-22 by the Indiana legislature, effective July 1, 2023:
(e) A person who files a permit application under this section must provide:
(1) documentation of the person’s ownership of the site where the proposed work will be performed; or
(2) an affidavit from the owner of the site where the proposed work will be performed expressly authorizing the performance of the proposed work on that site.
[3] IC 14-29-1-8(c) provides:
The department shall issue a permit under this section if the issuance of the permit will not
do any of the following:
(1) Unreasonably impair the navigability of the waterway.
(2) Cause significant harm to the environment.
(3) Pose an unreasonable hazard to life or property.