Natural Resources Com'n of Indiana Dept. of Natural Resources v. Porter County Drainage Bd., 64S04-9108-CV-623

• Decision Date: 13 August 1991
• Docket Number: No. 64S04-9108-CV-623,64S04-9108-CV-623
• Parties: NATURAL RESOURCES COMMISSION OF the INDIANA DEPARTMENT OF NATURAL RESOURCES, Appellant (Plaintiff Below), v. PORTER COUNTY DRAINAGE BOARD, Appellee (Defendant Below).
• Court: Indiana Supreme Court

Page 587

576 N.E.2d 587

NATURAL RESOURCES COMMISSION OF the INDIANA DEPARTMENT OF

NATURAL RESOURCES, Appellant (Plaintiff Below), v. PORTER COUNTY DRAINAGE BOARD, Appellee (Defendant Below).

No. 64S04-9108-CV-623.

Supreme Court of Indiana.

Aug. 13, 1991.

Linley E. Pearson, Atty. Gen., Daniel P. McInerny, Deputy Atty. Gen., Indianapolis, for appellant.

Herbert K. Douglas, Douglas, Douglas & Hurley, Valparaiso, for appellee.

ON CIVIL PETITION FOR TRANSFER

SHEPARD, Chief Justice.

The Porter County Drainage Board has designated part of Salt Creek as a regulated drain. We hold that such a designation does not allow the board to bypass the statute requiring a permit from the Indiana Department of Natural Resources for construction projects affecting Indiana's rivers and streams. Ind.Code Sec. 13-2-22-1 to -21 (West 1990 & Supp.1990).

Salt Creek is a Lake Michigan tributary 24.5 miles long. The Porter County Drainage Board has designated 8.5 miles of the creek as "Parker Drain." ¹ Salt Creek itself is a spawning run, imprinting and stocking site for salmon and steelhead trout. Parker Drain, as a portion of the creek, plays an integral role in the breeding process of these fish.

On July 14, 1989, Lieutenant David Bateman, a conservation officer from the Indiana Department of Natural Resources (DNR), observed a dredging operation 2.5 miles south of Valparaiso in Salt Creek's floodway. Returning three days later, Lieutenant Bateman found that trees and brush had been cleared from the north or east side of the creek. The spoil had been deposited on the bank, uncovered and uncontained. Lieutenant Bateman saw some construction equipment along the creek, including a bulldozer and a dragline. The equipment was being operated by Bill Durflinger, who received his instructions from the Porter County Drainage Board. Lieutenant Bateman informed Durflinger that state law required a DNR permit for such work and directed Durflinger to cease operations until he obtained a permit. Lieutenant Bateman also mentioned that DNR would probably not issue a permit at that time, given the moratorium on construction in Lake Michigan tributaries due to the migration of salmon and trout.

Although several meetings were held in an effort to resolve the dispute, the drainage board refused to terminate the project. The DNR then sought injunctive relief in the Porter Circuit Court, seeking to enjoin construction until the board obtained a permit. The trial court denied the application, holding that the board did not need a DNR permit because the statute requiring permits exempts certain drains. The Court of Appeals reversed the trial court's denial of injunctive relief, concluding that the permit exception did not apply where the drain is merely an inclusive part of the stream. Natural Resources Comm'n v. Porter County Drainage Bd. (1990), Ind.App., 555 N.E.2d 1387. The Indiana Flood Control Act, Ind.Code Sec. 13-2-22-1 to -21 (West 1990 & Supp.1990), governs activities within the floodways of Indiana rivers and streams. It provides that no one may conduct a construction or excavation project within a floodway without first receiving a permit from DNR. Ind.Code Sec. 13-2-22-13(d) (West Supp.1990). There is an exception to the permit requirement stating:

However, authorization and approval of the director is not required for:

(1) a reconstruction or maintenance project (as defined in IC 36-9-27) on a stream or regulated drain in an agricultural (or rural) area where the total length of the stream or drain is ten (10) miles or less ...;

Ind.Code Sec. 13-2-22-13(d)(C)(1). The issue here is whether work on Parker Drain falls within this exception.

Indiana Code Sec. 13-2-22-13(d)(C)(1) is ambiguous in that it provides no guidance on how to measure the length of a stream or drain. The parties' differing interpretations gave rise to this lawsuit. DNR interprets Indiana Code Sec. 13-2-22-13(d) as applying to streams or regulated drains that are ten miles or less in length from the stream or drain's headwater to its mouth. Because Parker Drain is simply a portion of the 24.5 mile Salt Creek, says the DNR, the exception does not apply. The drainage board, on the other hand, contends that Parker Drain, designated by the board as 8.5 miles long, is plainly a "regulated drain in an agricultural (or rural) area where the total length of the stream or drain is ten (10) miles or less."

The General Assembly has declared that the object of the Indiana Flood Control Act is to prevent flooding and preserve Indiana's water resources:

It is hereby declared (a) that the loss of lives and property caused by floods, and the damage resulting therefrom, is a matter of deep concern to the state affecting the life, health and convenience of the people and the protection of property; that to prevent and limit floods all flood control works and structures, the alteration of natural or present water courses of all rivers and streams in the state should be regulated, supervised and coordinated in design, construction and operation according to sound and accepted engineering practices so as to best control and minimize the extent of floods and reduce the height and violence thereof; (b) that the channels and that portion of the flood plains of rivers and streams, which are the floodways, should not be inhabited and should be kept free and clear of interference or obstructions which will cause any undue restriction of the capacity of the floodways; (c) that the water resources of the state, which have been diminishing, should be accumulated, preserved and protected to prevent any loss or waste beyond the...