by Thomas P. Healy
Thanks to the efforts of the Friends of White River (FOWR), the banks along a stretch of riparian corridor in Warfleigh and Broad Ripple will retain vegetation originally slated for removal.
This summer, FOWR signed a settlement agreement [PDF} with the City of Indianapolis Department of Public Works (DPW), the Indiana Department of Natural Resources (DNR), and the U.S. Army Corps of Engineers (USACE). The agreement modified the provisions of a floodway construction permit issued in 2015 by DNR to DPW for vegetation removal. [PDF] As the local partner with USACE in the Indianapolis North Flood Damage Reduction Project, the City of Indianapolis is responsible for obtaining such permits so that the project can be brought into compliance with USACE standards for levee safety and stability.
“Our concern was the statement in the DNR permit that an undetermined amount of trees would be removed down to the shoreline,” says FOWR executive director Kevin Hardie. DNR issued the permit in June 2015. It stated that “all vegetation within 15′ of the face of the wall or toe of the levee will be removed with clearing to the edge of the river in isolated locations.”
“Under the terms of the agreement, we reduced the total amount of trees cut,” Hardie said.
PUSHING FOR ANSWERS
To assist in the effort FOWR retained the Conservation Law Center (CLC), a Bloomington-based nonprofit that provides legal counsel to nonprofits to help solve conservation problems. CLC president and director Bill Weeks said that once CLC was retained by FOWR and reviewed DNR’s permit there was a question of whether the City’s application met the standard for obtaining a permit. “According to state statute, an applicant is not permitted to do unreasonable harm to fish, wildlife, and botanical resources in the floodplain,” he explained.
DPW applied for the permit in August 2014 and DNR held two public hearings. A second hearing was required because of complaints that DNR provided insufficient notice to affected property owners. At both hearings, the majority of public testimony opposed the complete removal of vegetation from the riverbanks.
Weeks attended and left dissatisfied. “The frustrating thing is you can say what you want to say at those hearings, and what happens? Nothing. DNR doesn’t say anything. The City doesn’t say anything. USACE doesn’t bother to show up. You don’t get answers to your questions.”
FOWR retained CLC shortly after the second DNR hearing and in late June 2015, CLC filed a petition [PDF] with the Indiana Natural Resources Commission seeking a stay of effectiveness of the permit. Weeks said that move prevented DPW from undertaking any action on vegetation management.
As with most administrative appeals, mediation was mandated; in December 2015, a daylong session involved all parties. A two-hour presentation by USACE outlined its vegetation management strategy. “It was the very first time the USACE had ever been specific in the least with what they planned to do,” Weeks said. He and his clients agreed that the bottom line was to preserve as much of the forested riverine corridor as possible. “We set forth a template for a settlement,” Weeks said, noting that it’s difficult to prevail when challenging a governmental agency’s decision. “The presumption is that they’ve followed the law, so you’ve got to overcome a hurdle to get either their administrative judge or a court to say they didn’t follow the law.”
In the end, FOWR thought it was better to specifically document the USACE’s plan for the corridor and hold them accountable than to take the matter to court. After the mediation, FOWR distributed a press release hailing the victory.
But the celebration was a bit premature. Since USACE was being asked to diverge from its normal vegetation management standards, it needed to submit documentation up the chain of command for review. Carol Labashosky, a public affairs specialist in the USACE’s Louisville office, said the request was looked at nationally in terms of pubic safety. “Every levee system across the country is unique,” she said. “When USACE takes a relook, it’s rigorous.”
That review process took several months, and it wasn’t until August 2016 that the Louisville office received approval of the “Vegetation Variance Request for the Indianapolis White River North LFDRP, Phases IIIA & IIIC.” [PDF] This document contained the details FOWR was seeking but, according to Weeks, “It was different in some respects and we needed to evaluate it.” In the end, all parties agreed and signed the document. “As these things go, both sides gave something. No party got all it wanted,” Weeks said.
DOING MORE WITH LESS
According to Jacob Sinkhorn, USACE project engineer for the North Indy project, the Corps’ guidelines for landscape planting and vegetation management for all levees and floodwall projects are spelled out in a Technical Letter, ETL 1110-2-583.
“The clearing on the project deviates from what is required in the ETL,” he said in a conference call from his Louisville office. “The Request for Vegetation Variance is the report we created to show we could maintain levee safety though doing less clearing than the ETL requires,” he said.
The report detailed variations in six areas (called “reaches”) in Broad Ripple and Warfleigh. “Table 1 gives you a general outline of all reaches and approximately how many feet we avoid clearing,” Sinkhorn said. “To clarify what we’re doing, the ETL is a general guidance, and any time you have general guidance you’re going to find some things that don’t make sense. We determined that if you clear the full amount that ETL says, you’re doing more than required—the vegetation free zone is excessively wide. What we want to do is clear enough vegetation to make the levee safe but not excessively more than what is needed.”
Other provisions of the settlement include DPW establishment of a new public access point for watercraft in Friedmann Park, near Kessler Boulevard and Illinois Street. The City has also agreed to maintain a river access point in Broad Ripple near the Indianapolis Art Center. DPW will also install public access signage at both locations and increase its stormwater education public outreach efforts to deter illegal dumping for its negative impacts on waterways.
“We say all the time, the more people we can bring to the river, the more people you have to advocate for the river,” says FOWR president Dan Valleskey. He added that FOWR representatives will be able to walk the project site with USACE and review progress. “It’s a tool for USACE to keep us happy and a show of good faith,” he said. “If they try to pull something, it gives us a chance to say ‘Wait a minute!’”