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County of Lake v. Fox Waterway Agency

Case Date: 11/20/2001
Court: 2nd District Appellate
Docket No: 2-00-1375 Rel

November 20, 2001

No. 2--00--1375

IN THE

APPELLATE COURT OF ILLINOIS

SECOND DISTRICT

THE COUNTY OF LAKE, by and
through its Lake County
Stormwater Management
Commission,

          Plaintiff-Appellee,

v.

FOX WATERWAY AGENCY,

                           Defendant-Appellant.

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)		 Appeal from the Circuit Court
of Lake County.





No. 00--OV--3827

Honorable
Michael J. Fritz,
Judge, Presiding.

JUSTICE RAPP delivered the opinion of the court:

Defendant, Fox Waterway Agency (FWA), appeals the denial ofits motion for summary judgment and the grant of summary judgmentfor plaintiff, the County of Lake, by and through its Lake CountyStormwater Management Commission. Defendant asserts that the trialcourt erred by finding that the Lake County Stormwater ManagementCommission (the Commission) has authority over a project that hasbeen under defendant's control. Defendant argues that, since theproject property is owned by the State of Illinois and because theproperty is not located in a designated floodway, the circuit courterred in finding that the Commission had the authority to requiredefendant to apply for and obtain a permit from the Commission. For reasons not directly asserted by the parties, we reversesummary judgment for plaintiff and grant summary judgment fordefendant.

I. FACTS

Grass Island is located in Grass Lake, which in turn islocated within the Chain O Lakes in Lake County. Over the past 25years, Grass Island has lost great amounts of its square area. InAugust 1999, defendant became engaged in "the geotube project,"designed to rebuild the island. The geotube project involves theuse of large fabric tubes into which dredge spoil from lake bottomsediment or materials is inserted. The tubes are laid end to endon top of each other, apparently in a square design, therebycreating an enclosure, into which additional dredge material isadded. When enough material has been added to bring the area up tothe specified grade levels, native vegetation is planted, and thearea becomes a refuge for birds and plants. The defendant's plansspecify that the island should reach an elevation of 738.50 feet. The floodplain elevation (or base flood elevation) on Grass Lake,as designated by the Federal Emergency Management Agency (FEMA), is741.8 feet. The normal summer water level on Grass Lake, as fixedand artificially maintained by the Illinois Department of NaturalResources (IDNR) by means of the use of locks and dams is 737.30feet. Prior to beginning the project, defendant obtained permitsfrom IDNR and the Chicago District of the United States Army Corpsof Engineers (ACOE). Defendant did not apply for a permit from theCommission.

The Commission notified defendant several times of its failureto obtain a permit in violation of its watershed developmentordinance (ordinance) (Lake County Watershed Development Ordinanceart. IV,