1. Phil Herr ("Herr) initiated this proceeding when his attorney filed on March 8, 2001 a "Petition for Administrative Review." The proceeding seeks administrative review and to reverse a determination by the Department of Natural Resources (the "DNR") denying an application for a license to place a concrete seawall along a channel that is attached to Lake Wawasee in Kosciusko County.
2. The proceeding is governed by IC 4-21.5 (the "administrative orders and procedures act" or "AOPA") and rules adopted by the Natural Resources Commission (the "Commission") at 312 IAC 3-1 to assist in its implementation of AOPA. The Commission is the "ultimate authority" for the proceeding as the phrase is defined in AOPA.
3. Lake Wawasee is a "public freshwater lake," as the phrase is defined at IC 14-26-2-3. Lake Wawasee is subject to the regulatory jurisdiction of the DNR under IC 14-26-2 (the "Lakes Preservation Act") and to the jurisdiction of the Commission under AOPA.
4. The Commission has adopted rules to assist the Department in the administration of the Lakes Preservation Act. The rules are codified at 312 IAC 11.
5. Herr owns property along the channel where he wishes to place the concrete seawall. The channel is manmade and was constructed from Lake Wawasee sometime between 1937 and 1965 as part of the anticipated development of a residential subdivision. A continuous shoreline or water line is formed from the main body of Lake Wawasee and into the channel when the lake is at its legally established average normal level. The channel is part of Lake Wawasee and is subject to the jurisdiction of the Department under the Lakes Preservation Act. (FOOTNOTE 1)
6. The Department denied Herr's application to place a concrete seawall on the basis the site of the application on the channel constitutes an area of special concern. If a new seawall is to be placed in an area of special concern, the seawall must be comprised of bioengineered materials or glacial stone. 312 IAC 11-4-2(c).
7. "Area of special concern" is a defined phrase. The portion of the definition pertinent to this proceeding is found at 312 IAC 11-2-2(1) and provides an "area of special concern" is an "unaltered shoreline where bulkhead seawalls" are at least 200 feet apart.
8. "Unaltered shoreline" means a shoreline that does not include lawful permanent structures. 312 IAC 11-2-26.
9. Neither the term "structure" nor the term "permanent structure" is defined in the rule, but the Commission gives examples of the kind of permanent structures that require completion of the full license process and that do not qualify for a general license. These are set forth in 312 IAC 11-3-3(f):
(f) Examples of a structure that requires a written license under this section include the following:
(1) A marina.
10. The DNR urges the term "structure" in 312 IAC 11-2-26 should be limited to such items as piers, boat shelters, boat lifts, and boat hosts-and that channels should not be considered structures.
11. Herr seeks a broader application of the term and includes in its authority Hough v. Zehrner, 302 N.E.2d 881 (Ind. App. 1973) where the Indiana Appeals Court was called upon to determine what constitutes a structure for the purposes of a mechanic's lien. The Court there referred to Webster's Third New International Dictionary (1970): "Structure is defined as the '...action of building; construction,' giving the following from T.W. Arnold: 'demolish any building, highway, road, railroad, excavation, or other structure.'" Emphasis supplied by Herr.
12. Herr's application of the term "structure" is more persuasive. The DNR is correct in identifying bricks-and-mortar facilities as examples of structures, but the term is not so limited. 312 IAC 11-3-3(f) expresses the Commission's intent "structure" also includes the concepts of underwater beaches and boatwells. Neither of these kinds of structures require more than excavation or fill. Indeed, a channel is arguably a more substantial structure than is a boatwell-similar in concept but longer. The dictionary definition cited in Hough v. Zehrner is consistent with this result.
13. A manmade channel into a public freshwater lake is a structure. The channel on which Herr wishes to place a concrete seawall is a structure. The channel is not part of the "unaltered shoreline" of Lake Wawasee. The waters of the channel do not qualify as an "area of special concern" under 312 IAC 11-2-2(1) by which the placement of a concrete seawall would automatically be prohibited.
14. Even so, the channel is within Lake Wawasee and is subject to the Lakes Preservation Act. Construction along or lakeside of the channel's shoreline must comply with the Lakes Preservation Act and is subject to the licensing authority of the DNR for protection of the environmental and aesthetic integrity of Lake Wawasee.
FOOTNOTE 1. The Lakes Preservation Act currently requires a license under IC 14-26-2-9 and IC 14-26-2-12 for the construction of a channel into a public freshwater lake. As a condition precedent to granting a permit, the applicant must, in writing, acknowledge that all additional water area created is part of the lake. See particularly IC 14-26-2-9(b)(1). If the Lakes Preservation Act or antecedent statutes were in effect when the channel was constructed, the person applying to construct the channel was required to dedicate its waters to Lake Wawasee and to the jurisdication of the Lakes Preservation Act. If the channel were constructed before the effective date of the Lakes Preservation Act or its antecedent statutes, then IC 14-26-2-5(c)(2) brought the channel under jurisdiction: "The....public of Indiana has a vested right in the...preservation, protection, and [VOLUME 9, PAGE 13] enjoyment of all the public freshwater lakes of Indiana in their present state." The "present state" of Lake Wawasee would have included the channel on the effective date of the Lakes Preservation Act. In either event, the Lakes Preservation Act confers jurisdiction in the Department.