Authority: IC 14-28-1-5

Affected: IC 4-21.5-3-8; IC 5-3-1-6; IC 14-11-4; IC 14-28-1-28

Sec. 4. (a) This section establishes the criteria and procedures for seeking authorization for a commission floodway under IC 14-28-1-28.

(b) A commission floodway is an alternative to the processes used to designate a floodway under section 2 or 3 of this rule.

(c) A person seeking to use this section shall make an application for approval of a commission floodway on a departmental form delivered to the division. Before being deemed complete, the application shall establish the following:

1. (1) The boundary of the commission floodway must not exclude an area that would otherwise be designated as a floodway under IC 14-28-1 and this rule unless each of the following is satisfied:

   1. (A) With respect to any fill or structures within the excluded area, one (1) of the following must be demonstrated:

      1. (i) A license under 312 IAC 10-4 or a general license under 312 IAC 10-5 has been issued or will be issued contingent upon establishment of the commission floodway.
      2. (ii) Placement was done prior to the effective date of the statute requiring that a permit be obtained.
   2. (B) Fill raises all portions of the excluded area at least two (2) feet above the elevation of the regulatory flood.

   3. (C) "As built" plans certified by a registered professional engineer demonstrate both of the following:

      1. (i) Compliance with any licensing requirements under this article.
      2. (ii) All portions of the excluded area are raised at least two (2) feet above the regulatory flood.
2. (2) Specifications to demonstrate areas within the commission floodway will be adequately protected to minimize the possibility of erosion.
3. (3) A description of the boundaries of the commission floodway certified by a surveyor.
4. (4) An emergency evacuation plan approved by the department of homeland security office of emergency management with respect to any abode.

5. (5) Construction resulting from development of the commission floodway will not do any of the following:

   1. (A) Adversely affect the efficiency of, or unduly restrict the capacity of, the floodway.
   2. (B) Constitute an unreasonable hazard to the safety of life or property.
   3. (C) Result in unreasonably detrimental effects upon fish, wildlife, or botanical resources.
6. (6) Notice of the proposed commission floodway served upon adjacent property owners as anticipated by IC 14-11-4 and 312 IAC 2-3.

7. (7) Notice of the proposed commission floodway published at least two (2) times, seven (7) days apart, as follows:

   1. (A) In two (2) daily newspapers in Indianapolis as provided in IC 5-3-1-6.
   2. (B) In newspapers in the counties where all or part of the commission floodway is to be established as provided in IC 5-3-1-6.

(d) After the department has completed its review and analysis of the application, the deputy director for the bureau of water and resource regulation shall issue an order granting, denying, or conditioning the authorization for a commission floodway. The department may require as a condition of the order that an easement or similar encumbrance be placed in the record of title for the area covered by the commission floodway to ensure compliance with its terms, including conditions that must be met before an abode may be placed on the site pursuant to subsection (c)(4). Copies of the order, together with a statement of how administrative review of the order may be sought from the commission, shall be served upon the following:

1. (1) Each person served by the applicant pursuant to subsection (c)(6).
2. (2) Any person who has requested to be notified of the application pursuant to IC 4-21.5-3-8.
3. (3) The board of county commissioners or other county executive in any county where the commission floodway is located.
4. (4) The Federal Emergency Management Agency.

(e) The authorization of a commission floodway shall be effective upon the latest of the following occurrences:

1. (1) If no request for administrative review is filed in a timely fashion, the latter of the following:

   1. (A) Eighteen (18) days after the final service made under subsection (d)(1) through (d)(3).
   2. (B) Seven (7) days after the final newspaper publication under subsection (d)(4).
2. (2) If a request for administrative review is filed in a timely fashion, upon completion of the adjudication.
3. (3) The recordation of an easement or similar encumbrance as described in subsection (d).
4. (4) Written approval by the Federal Emergency Management Agency.

(Natural Resources Commission; 312 IAC 10-3-4; filed Jul 5, 2001, 9:12 a.m.: 24 IR 3390, eff Jan 1, 2002; readopted filed Jul 21, 2008, 12:00 p.m.: 20080813-IR-312080072RFA; readopted filed Sep 22, 2014, 12:34 p.m.: 20141022-IR-312140065RFA; readopted filed Sep 16, 2020, 8:17 a.m.: 20201014-IR-312200345RFA; errata filed Mar 18, 2026, 9:59 a.m.: 20260325-IR-312260094ACA)