CADDNAR

[CITE: A. Lusher v. DNR, 11 CADDNAR 124 (2007)]

 

[VOLUME 11, PAGE 124]

 

Cause #:04-123W

Caption: A. Lusher v. DNR

Administrative Law Judge: Lucas

Attorneys: Paulen; Knotek

Date: April 19, 2007

 

 

FINAL ORDER

 

(1) The denial of application PL-19390, for an after-the-fact license to place a steel sheet piling seawall on Simonton Lake in Elkhart County, is affirmed.

 

(2) Notice of Violation No. V-4037-PL is affirmed with the following sanctions ordered:

 

(A) A civil penalty is assessed against Arthur Lusher, Jr. and in favor of the Department of Natural Resources in the total amount of $50,000.

 

(B) In addition to the civil penalty, the following action is ordered for mitigation of the violation:

(1) Arthur Lusher, Jr. shall remove the 85-foot steel sheet piling seawall and all fill that was placed in association with the steel sheet piling seawall as depicted in drawing enclosed with the NOV.

(2) To minimize erosion, Arthur Lusher, Jr. shall stabilize and revegetate all bare and disturbed areas landward of the shoreline with a mixture of grasses (excluding all varieties of tall fescue) and legumes as soon as possible upon completion of removal.

(3) Arthur Lusher, Jr. shall complete migitation by September 1, 2007.

(4) Arthur Lusher, Jr. shall inform the DNR as soon as mitigation is completed.

 

(C) If the mitigation required under Part (2)(B) is performed in a timely fashion, the civil penalty shall be reduced to a total of $1,000.

 

 

FINDINGS OF FACT AND CONCLUSIONS OF LAW

 

 

A. Jurisdiction and Statement of the Case

 

1.      By letter filed on June 16, 2004, Arthur R. Lusher, Jr. (“A. Lusher”) filed with the Natural Resources Commission (the “Commission”) a request for administrative review of the denial by the Department of Natural Resources (the “DNR”) of an application for an after-the-fact license (the “after-the-fact license”) for construction on or within the shoreline of Simonton Lake,[1] a public freshwater lake under IC 14-26-2 (sometimes referred to as the “Lakes Preservation Act”) and rules adopted at 312 IAC 11-1 through 312 IAC 11-5 (the “Lakes Preservation Act rules”).

 

[VOLUME 11, PAGE 125]

 

2.      The denial of the application was described by the DNR’s Division of Water as follows:

 

APPLICATION #:             PL-19390

LAKE:                               Simonton Lake

APPLICANT:                    Arthur Lusher

                                          PO Box 4847

                                          Elkhart, IN 46514-0847

DESCRIPTION:                 A steel sheet piling seawall was constructed across 85’ of the applicant’s frontage.  The seawall was placed lakeward of the legal shoreline.  Details of the project are contained in information and plans received at the Division of Water on November 8, 2002, November 25, 2002, May 14, 2003, and December 1, 2003.

LOCATION:                      51212 County Road 109 North near Elkhart, Osolo Township, Elkhart County SW1/4, NW1/4, NE1/4, Section 16, T38N, R5E, Elkhart Quadrangle

                                          UTM Coordinates: Downstream 4622396 North, 586800 East

DENIED BY:                     James J Hebenstreit, P.E., Assistant Director

                                          Division of Water

DENIED ON:                     February 03, 2004

 

3.      The DNR identified its denial reasons as follows:

 

(1)   Direct and cumulative impacts on the natural resources and natural scenic beauty of the lake.

 

(2)   Pursuant to the Lakes Preservation Act, the DNR is responsible for regulating construction activities within Indiana’s public freshwater lakes; as such, the DNR is charged with preserving and protecting the water of the lakes for the use of Indiana’s citizens; the DNR holds and controls all public freshwater lakes in trust for the use of all the citizens of Indiana; the placement of fill in the lake prevents the public from use of this area.

 

(3)   Pursuant to 312 IAC 11-4-2, if a new seawall is to be placed in an “area of special concern”, the seawall must be comprised of glacial stone or bioengineered materials.

 

4.      The request for administrative review described in Finding 1 was assigned to a Commission administrative law judge and designated as Administrative Cause Number 04-123W (“this proceeding”).  A “Notice of Prehearing Conference”, with a copy of the request for administrative review attached, was forward to A. Lusher and to the DNR through its assistant chief legal counsel on June 21, 2004.  Service was successfully made in this proceeding upon both of these parties under IC 4-21.5 (sometimes referred to the “Administrative Orders and Procedures Act” or “AOPA”) and rules adopted by the Commission at 312 IAC 3-1 to assist with its implementation of AOPA.

 

[VOLUME 11, PAGE 126]

 

5.      For the same steel sheet piling seawall that was the subject of the application for the after-the-fact license, the DNR issued Notice of Violation No. V-4037-PL (the “NOV”) on May 25, 2004.  The site of the NOV and of the after-the-fact license is the “subject property”.

 

6.      The NOV provided in substantive part as follows:

 

TO:      Mr. Arthur Lusher

            P.O. Box 4847

            Elkhart, Indiana 46514-6251

 

            Mr. Kevin Mellot

            2612 South Main Street

            Goshen, Indiana 46526-5415

 

The [DNR’s] Division of Water hereby issues this enforcement action pursuant to Indiana Code 14-26-2 as follows:

 

Nature of Violation

 

On or about May 14, 2003, a representative of the [DNR] observed that a steel sheet piling seawall had been constructed across 85 feet of the lake frontage of 51212 County Road 109 without the prior written approval from Department of Natural Resources.  The seawall was constructed lakeward of the legal shoreline and the fill was placed in the lake.  On or about February 3, 2004 the Division of Water denied your after-the-fact permit application for the construction of 85 feet of steel sheet piling seawall.  The seawall and fill are located at 51212 County Road 109, in the Maple Grove Subdivision near Elkhart in Osolo Township, Elkhart County in the NE1/4 of Section 16, Township 38 North, Range 5 East (UTM North 4622396, UTM East 586800).  This activity was completed in violation of Indiana Code 14-26-2.

 

Finding

 

This site is located in an area of special concern.  Pursuant to IAC 312 11-4-2, a new seawall located in n [sic.] area of special concern must be comprised of either or both bioengineered material or glacial stone.  Pursuant to IC 14-26-2 a permit is required for the placement of a seawall within or along the legally established shoreline of a public freshwater lake.  The existing steel sheet piling seawall and fill were not authorized and have resulted in significant environmental harm to the natural resources and natural scenic beauty of the lake and violates Indiana Code 14-26-2.  The fill also encroaches on the waters of the lake thereby removing this area from the lake and use by the public and violates Indiana Code IC 14-26-2.

 

Action Appropriate to Mitigate the Violation

 

The [DNR] has determined that the following action is appropriate to mitigate the violation:

 

[VOLUME 11, PAGE 127]

 

1)                  [A. Lusher] and/or his authorized representative shall removed the 85 feet of steel sheet piling seawall and all fill that is lakeward of the lake’s legal shoreline as depicted on the enclosed drawing.

2)                  [A. Lusher] and/or his authorized representative shall stabilize and revegetate all bare and disturbed areas landward of the shoreline with a mixture of grasses (excluding all varieties of tall fescue) and legumes as soon as possible upon completion to prevent any erosion.

3)                  All work must be completed within 90 days of the receipt of this notice.

4)                  Contact our Violations Section at either our toll free number 1-877-928-3755 or (317) 232-1460 after restoration is completed.

 

For further information regarding the mitigation needed, time frames for accomplishing the mitigation or penalty assessment, please contact Mr. James Hebenstreit P.E., Assistant Director of the Division of Water at (317) 232-4165.

 

Civil Penalty Assessment/Permit Revocation

 

Pursuant to Indiana Code 14-25.5, a person who fails to mitigate a violation within the time set forth above is liable for a civil penalty.  The [DNR] may assess a penalty of not more than ten thousand dollars ($10,000) for a violation.  Each day during which a violation continues may be considered a separate violation for purposes of assessing a civil penalty.

 

Notice of Right to Appeal and Administrative Review

 

This [NOV] will become final thirty (30) days after receipt unless a party makes a timely request for administrative review under I.C. 4-21.5-3-6.

 

In order to qualify for administrative review, a party must file a written request for appeal within thirty (30) days after receipt of this notice at the following address:

 

Director of Division of Hearings

Natural Resources commission

402 West Washington Street, Room W-272

Indianapolis, Indiana 46204

 

7.      On December 20, 2006, a hearing was conducted as scheduled in this proceeding (concurrently with Administrative Cause Number 04-133W) at Columbia City, Indiana.  At the opening of the hearing, the parties agreed that evidence would be received both as to the denial of the after-the-fact license and as to the NOV.

 

[VOLUME 11, PAGE 128]

 

8.      The Commission is the “ultimate authority” for the DNR under AOPA with respect to any administrative review for an order arising from the Lakes Preservation Act.  IC 4-21.5-1-15 and IC 14-10-2-3.  Included is administrative review of a notice of violation, issued under IC 14-25.5-4, which alleges a violation of the Lakes Preservation Act.  See, by illustration, IC 14-25.5-4-1(4)(C).

 

9.      In this proceeding, the Commission has jurisdiction under AOPA for administrative review of the denial of the after-the-fact license and of the NOV.  The Commission also has jurisdiction under AOPA over the persons of A. Lusher and the DNR.

 

B. History of Construction at the Subject Property and Surrounding Area

 

10.  A. Lusher testified he moved with his parents to the vicinity of the subject property when he was a child.  He recalled that his father, Arthur Lusher, Sr., obtained permits in 1957 and 1965 to deepen the bed of Simonton Lake along portions of the shoreline at the subject property.  A similar permit in 1964 authorized deepening of the lake and the removal of “minor projections of the land into the lake”.  See, also, three documents entitled “Permit or Approval to Alter the Shore Line or Bed of a Public Fresh Water Lake” that were included within Exhibit Joint II. 

 

11.  A. Lusher testified the dredging was performed using a “big crane” that was positioned on the land to “swung the bucket out, dug it out,…the dirt was dumped on the property adjacent, behind the lake.”[2]  The fill raised the level of the property landward of the shoreline so “you could build on it.”  Prior to this activity, “it was pretty much all swamp.”  Doing so created a defined shoreline and provided a channel.

 

12.  Timothy Lusher testified that his recollection was similar to the recollection of his brother, A. Lusher, with respect to the permiting and construction activities by their father, Arthur Lusher, Sr., in the late 1950s and 1960s, although Timothy Lusher is younger than A. Lusher, and he has less recollection of detail for this period.

 

13.  As a result of the dredging, there is today a near-shore channel or boat lane that is used regularly by the general public for navigation within Simonton Lake.

 

14.  Within 200 feet of the shoreline of most public freshwater lakes, including Simonton Lake, a person must not operate a motorboat in excess of idle speed.  IC 14-15-3-17.  “Idle speed” means the slowest possible speed, not exceeding five miles per hour, which maintains steerage so that the wake or wash created by a boat is minimal.  IC 14-8-2-129.

 

[VOLUME 11, PAGE 129]

 

15.  For the near-shore channel that is adjacent to the subject property, boats are subject to an idle speed limit.

 

16.  A. Lusher testified that his father operated a chicken and rabbit farm in a barn located near the subject property.  The barn was destroyed by a fire and not rebuilt.  The concrete floor and footers were broken and dragged to the shoreline.  The footers were approximately twelve inches wide by 14 to 16 inches deep, and the floor five to six inches thick.  “We placed them along the shoreline, as best we could, and stabilized them with pipes” on the lakeward side.  In some places, the concrete pieces were single, and in others they were “stacked two high”, and they were configured “parallel to the shoreline”.  He testified the concrete pieces reduced shoreline erosion, “but still the boats [using the channel] washed it out.”  The concrete pieces were placed along the entirety of his parents’ property, which today includes the subject property and the property owned by Timothy Lusher.

 

17.  A Lusher testified that he and his wife determined to contract with Kevin Mellot[3] to construct a steel sheet piling seawall along the shoreline of the subject property.  He subsequently contacted his brother, Timothy, and a contract was entered with Mellot that included his brother’s property as well.  A. Lusher testified that “After Kevin Mellot started this job he had said that we would need a permit.  At that particular time, he came across as though the DNR was very slow in issuing permits—approximately six months to ten months or so.  He said that we could put it in and we could issue— this was after he had already started this particular seawall, which was mine— that we could file an after-the-fact permit that he was sure would be granted, that he had been granted others in the past.”  A. Lusher testified he had Mellot proceed with construction after being informed a DNR license was required, without having the benefit of a license, because a “pretty good-sized drought” had caused Simonton Lake to be at a low elevation.  Where the seawall “was installed, it was all dry.  That made it so much more easier for him to install it.  It was dry on my property without tearing up my property.  That was the main and the only reason why.”  Construction took place in 2002.

 

18.  A. Lusher testified that his best recollection was he filed an application for an after-the-fact license before Mellot was finished with its construction.  A. Lusher testified the steel sheet piling seawall varied from one foot to one-and-one-half feet higher than the former broken concrete seawall.  He filled the area landward of the steel sheet piling seawall with pea gravel, and a small amount of topsoil to grow grass, to be level with the broken concrete seawall.

 

[VOLUME 11, PAGE 130]

 

C. Application of the Statutory and Regulatory Program

 

19.  Neil Ledet is a District Fisheries Biologist for the DNR’s Division of Fish and Wildlife whose geographic responsibilities include public freshwater lakes in Elkhart County.  He has been employed with the DNR since March 1976 and assigned to the District which includes Elkhart County since early 1982.

 

20.  Ledet is responsible for conducting lake and stream fish surveys for the counties in his District, including Simonton Lake in Elkhart County.  Since 1989, his responsibilities have also included reviewing applications for licenses that are required by the Lakes Preservation Act.

 

21.  The DNR has performed fish surveys on Simonton Lake since the middle-1980s.  These surveys indicate the predominant species are bluegill, red-ear sunfish, largemouth bass, yellow perch and other warm-water species typical of public freshwater lakes in northern Indiana.

 

22.  Ledet is the only person to testify who has expertise in fisheries biology.

 

23.  Ledet testified he has been to the A. Lusher property along the subject property at least three times pertaining to the after-the-fact license application and the NOV. 

 

24.  As defined in 312 IAC 11-2-21, “seawall” means a manmade structure placed along the shoreline or water line of a public freshwater lake for the purpose of shoreline stabilization.

 

25.  Licensing requirements for the placement of a new seawall are provided at 312 IAC 11-4-2.  A written license under the Lakes Preservation Act and the Lakes Preservation Act rules for the construction or placement of a seawall within or along the shoreline or water line of a public freshwater lake.  “(c) If the new seawall is to be placed in an area of special concern, the seawall must be comprised of either or both of the following: (1) Bioengineered materials.  Glacial stone.”

 

26.  Ledet testified that the DNR attempts to evaluate an application for an after-the-fact license in the same manner as an application made before construction activities take place, but “it does become more difficult because the site has been altered prior to our inspection.”

 

27.  Ledet asked A. Lusher for any documentation that A. Lusher could provide concerning the site conditions that existed along the shoreline of the subject property before the sheet steel seawall was constructed.  A. Lusher provided no such documentation.

 

[VOLUME 11, PAGE 131]

 

28.  The DNR is not legally prohibited from issuing an after-the-fact license for activities in or along waterways.  At the same time, an applicant must not gain an advantage in the licensure process because natural resources were destroyed and are less obviously ascertainable as a result of the unlicensed activities.  Shoaff Mullin, and DeVille v. Ft. Wayne Zoological Society and DNR, 8 Caddnar 157 (2000).[4] 

 

29.  Ledet testified that from the perspective of fisheries biologist, the placement of a steel sheet piling seawall is one of the most damaging alterations that can take place.  “It’s there forever,” and the site “can never really recover unless…the structures are removed.  Usually, it results in construction-wall backfilling.”  The placement of a steel sheet piling seawall “can result in the loss of native vegetation that occurred along the shoreline.  That vegetation, and even some of the woody material that might have been present, provides important habitat for fisheries in those lakes.”  Also, “if there’s a lot of wave action that continually bounces off the wall, it results in scouring of the lake…at the toe of that wall, re-suspending materials and releasing nutrients back into the water [and] contributing to water turbidity.”

 

30.  On cross-examination, Ledet was asked to compare the environmental impacts of a broken concrete seawall and those of a bulkhead steel sheet piling seawall.  He testified, “[T]he bulkhead steel sheet piling seawall is a permanent alteration that requires backfill [and] the loss of…vegetation associated with that.  Concrete placed along the shoreline still doesn’t necessarily remove all of the vegetation as a result of the filling, and it doesn’t provide the same type of wave impact from wave energy back on the wall. They are very different.”  He later testified, “We know that when you build a bulkhead seawall that fish species are greatly reduced compared to…areas that do not have bulkhead seawalls.”

 

31.  With respect to his inspection of the subject property dated May 14, 2003, Ledet reported: “Wetland vegetation is present in various quantities along this entire shoreline and did exist in larger amounts at the project site prior to the illegal work.”  Indiana Department of Natural Resources/Division of Water Application Tracking System, Beth L. Tallon, Environmental Scientist (Aug. 8, 2003) from Exhibit Joint II.

 

32.  Ledet testified he followed the Lakes Preservation Act rules in determining whether a license should be granted under the Lakes Preservation Act.  His examinations of the subject property after the placement of the new seawall revealed a limited surviving presence of wetland species, but he did not designate the site with the most restrictive regulatory classification of “significant wetland”.  Instead, he classified the portion of Simonton Lake which is adjacent to the subject property as “at least an ‘area of special concern’”.  He testified the Lakes Preservation Act rules prohibited the approval of a steel sheet piling seawall in an “area of special concern”.

 

[VOLUME 11, PAGE 132]

 

33.  As defined in 312 IAC 11-2-2, “area of special concern” means an area that contains at least one (1) of the following characteristics:

 

(1) An altered shoreline where bulkhead seawalls are at least two hundred fifty (250) feet apart.

(2) Bogs, fens, muck flats, sand flats, or marl beaches identified by the division of nature preserves in the Natural Community Classification System.

(3) More than six hundred twenty-five (625) square feet of contiguous emergent vegetation or rooted vegetation with floating leaves.

 

34.  Ledet testified he determined the portion of Simonton Lake adjacent to the subject property is an “area of special concern” because it qualified, under 312 IAC 11-2-2(1), as an “altered shoreline where bulkhead seawalls” are at least 250 feet apart.

 

35.  Ledet testified that, pursuant to 312 IAC 11-2-2(1), a site can qualify as an “area of special concern” even where manmade alterations have taken place.  By illustration, these could include dredging, a neighboring glacial stone seawall or a beach.  This interpretation is consistent with the language of subdivision (1) that identifies an “altered shoreline” as being qualified.

36.  The sheet steel piling seawall constructed along the subject property is approximately 85 feet long.

 

37.  On cross-examination, Ledet testified the nearest bulkhead seawall was located in, and near the mouth of, a manmade channel that is south of the property owned by Timothy Lusher.

 

38.  Timothy Lusher testified the nearest bulkhead seawall to his property was approximately 215 feet south of his property, and, similarly to the one that Timothy Lusher caused to be placed, was constructed of sheet steel piling.

 

39.  The bulkhead seawall south of the Timothy Lusher property described in Finding 37 and in Finding 38 is the same steel sheet piling seawall.  The parties agreed that this seawall is a bulkhead seawall.

 

40.  A. Lusher testified that the area south of his seawall was “open” and contained no seawall. 

 

41.  On cross-examination, Ledet testified there was a “wood timber wall” immediately north of the subject property.  A. Lusher also testified to the existence of this neighbor’s wooden seawall, although he indicated there was a drain between the two seawalls. 

 

[VOLUME 11, PAGE 133]

 

42.  A. Lusher and the DNR seemingly disagree as to whether the “wood timber wall” immediately north of the subject property constitutes a “bulkhead seawall” under the rules in effect during construction activities at issue in this proceeding.

 

43.  Simultaneously with the placement of the sheet steel piling seawall at the subject property, Timothy Lusher caused a 265-foot sheet steel piling seawall to be placed at property owned by Timothy Lusher.  The Timothy Lusher property is located generally south of the subject property.  Another property also intervenes between the subject property and the Timothy Lusher property.

 

44.  As defined in 312 IAC 11-2-5 and applicable to this proceeding, “bulkhead seawall” means an impervious, vertical, or near vertical shoreline protection structure.

 

45.  Effective June 1, 2005, 312 IAC 11-2-5 was amended to its current language.  Pursuant to 312 IAC 11-2-5(a), “bulkhead seawall” now means a vertical, or near vertical, solid concrete, steel sheet piling, or vinyl piling structure, which has the purpose of shoreline protection.  Pursuant to 312 IAC 11-2-5(b), a timber seawall may now also qualify as a “bulkhead seawall”, if constructed before January 1, 1991, and if the property owner establishes a series of criteria in a written assessment by a registered professional engineer, licensed professional geologist or soil scientist with expertise in shoreline protection and wave dynamics.

 

46.  The 2005 amendments eliminated the rule requirement that a structure be “impervious” in order to qualify as a bulkhead seawall.  Instead, amended 312 IAC 11-2-5 requires that a structure be constructed of solid concrete, steel sheet piling, vinyl piling, or, in limited circumstances, timber.

 

47.  On cross-examination, Ledet testified that under the pre-2005 definition, “impervious” meant “solid, where water doesn’t flow freely from one side to the other.”  Within this definition, he considered a seawall constructed of poured concrete, steel sheet piling, vinyl piling, or, in limited circumstances, timber, to be a bulkhead seawall.  He did not consider a seawall constructed of engineered stone, stacked rubber tires, wood cribbed and rocks, hog wire fencing and sandbags or vertical concrete pipe to qualify as a “bulkhead seawall”.

 

48.  The evidence is inconclusive as to whether the wood timber seawall, located immediately north of the subject property, was impervious so as to satisfy the pre-2005 definition (or, for that matter, whether it would satisfy the criteria for a timber seawall for the post-2005 definition).  For the purposes of this proceeding, the assumption is made most favorable to A. Lusher that the wood timber seawall qualifies as a bulkhead seawall.  Even so, there is a distance well in excess of 250 feet between the wood timber seawall and the sheet steel seawall that was located 215 feet south of the property where Timothy Lusher placed a new seawall.

 

[VOLUME 11, PAGE 134]

 

49.  Ledet testified that, prior to review of the after-the-fact license application, he had performed fish surveys within Simonton Lake and adjacent to the subject property.  He recalled observing broken concrete pieces along the shoreline, but these were not what he considered to be a “bulkhead seawall”.  He testified a seawall constructed of broken or stacked concrete could provide shoreline protection, but this type of seawall was not approved for rules which became effective in March 1999.[5]  Ledet did not know when the concrete pieces were placed along the shoreline of the subject property.

 

50.  Neither the former seawall on the subject property nor the former seawall on the Timothy Lusher property qualifies as a bulkhead seawall.  They were not impervious but rather in the nature of riprap and had greater structural commonality to a glacial stone seawall than to a sheet steel seawall or a concrete seawall.  The former seawalls were more sieve than fortress, and the erosion problems experienced by A. Lusher illustrated they were an ineffective sieve.  Wave action in rebound from the former seawall would be at least somewhat dispersed by the irregular surface of the wall.

 

51.  By contrast, the new sheet steel seawall is a substantial barrier.  The new seawall is practically if not absolutely impervious.  The new seawall is substantially higher.  Wave action in rebound from the new seawall is likely to be less dispersed than from the irregular concrete pieces that constituted the former seawall.  From the perspective of fisheries biology, the placement of a steel sheet piling seawall resulted in significant environmental harm.  The structure is permanent, and the area cannot recover unless the sheet steel seawall is removed.  Placement of a sheet steel seawall, rather than the use of bioengineered materials or glacial stone, contravened and thwarted the purpose of the Commission’s regulatory program.  The new steel sheet piling seawall and fill have resulted in significant environmental harm to the natural resources and natural scenic beauty of Simonton Lake in violation of the Lakes Preservation Act. 

 

52.  Ledet testified that filling the lake also reduces the area that would be available for public use.  The placement of fill could violate the public trust that is protected under the Lakes Preservation Act, although he conceded the A. Lusher “fill area was relatively small compared to some other wall that may have been built ten or 15 feet out into the lake.”  On cross-examination, he reflected that the DNR determined had A. Lusher’s steel sheet piling seawall was approximately six inches lakeward of the previous crushed concrete seawall.

 

[VOLUME 11, PAGE 135]

 

53.  The evidence supports a finding that the construction of the sheet steel seawall encroaches on the public waters of Simonton Lake and is a violation of the public trust doctrine.  The area of encroachment is nominal and would not, in itself, support the NOV or preclude approval of the after-the-fact license.

 

54.  A. Lusher has not shown by a preponderance of the evidence that the after-the-fact license was wrongfully denied by the DNR.

 

55.  The DNR has shown by a preponderance of the evidence that the NOV was properly issued.

 

 

D. Sanctions for NOV

 

56.   As indicated in the NOV, a civil penalty should be assessed against A. Lusher under IC 14-25.5.

 

57.  “In addition to other penalties prescribed by” the Lakes Preservation Act, the director [of the DNR] may impose a civil penalty under IC 14-25.5-4.”  IC 14-26-2-22.

 

58.  As provided in IC 14-25.5-4-4, a “civil penalty” assessed under IC 25.5-4-3 “is subject to IC 4-21.5-3-6 and becomes effective without a proceeding under IC 4-21.5-3 unless a person requests administrative review within thirty (30) days after receipt of the notice of assessment.”

 

59.  As provided in IC 14-25.5-4-3 and applicable to this proceeding, the DNR “may assess a civil penalty of not more than ten thousand dollars ($10,000) for a violation” of the Lakes Preservation Act.  Each day during which a violation continues may be considered a separate violation for purposes of assessing a civil penalty.

 

60.  In considering what civil penalty to assess, the Commission must properly consider the totality of the circumstances.  The seriousness of the violation should be considered, as well as any aggravating or mitigating factors.  DNR and I & M v. Pheasant Ridge Development. Co., Inc., 10 Caddnar 187 (2006).

 

61.  The maximum civil penalty must be reserved for the most serious violations.

 

62.  In considering the seriousness of a violation, the Commission shall determine whether there is posed an imminent danger to persons, property, or the environment. 

 

63.  The violations by A. Lusher have not been shown to pose danger to persons or property, but they have caused significant harm to the environment. 

 

[VOLUME 11, PAGE 136]

 

64.  A DNR fisheries biologist testified that the construction of the steel sheet piling seawall is one of the most damaging alterations that can take place within a public freshwater lake.  “It’s there forever,” and the site “can never really recover unless” the seawall and backfill are removed.  The placement of a steel sheet piling seawall “can result in the loss of native vegetation that occurred along the shoreline.  That vegetation, and even some of the woody material that might have been present, provides important habitat for fisheries in those lakes.”  Also, “if there’s a lot of wave action that continually bounces off the wall, it results in scouring of the lake…at the toe of that wall, re-suspending materials and releasing nutrients back into the water [and] contributing to water turbidity.”

 

65.  An unlicensed 85-foot steel sheet seawall has been in existence at the subject property since 2002.

 

66.  For the violation resulting from improper and unlicensed construction of the steel sheet piling seawall, a significant civil penalty must properly be assessed against A. Lusher.

 

67.  As aggravating factors, the Commission shall properly consider whether the violation was deliberate, continuing in nature, or of extended duration.

 

68.  The violation was deliberate, but there is also a reasonable inference A. Lusher was encouraged and even pressured by his contractor to commit the violation.  The violation was of a continuing nature.  The duration was essentially concurrent with the administrative adjudication, so duration is not considered an aggravating factor.

 

69.  Mitigating factors include that a person sought in good faith to abate the violation.  Because the violation at issue here results in an adverse condition but one that is relatively stable, mitigation may properly be viewed as a prospective opportunity.

 

70.  Of a maximum $10,000 daily civil penalty for violation, the circumstances support a civil penalty of $500 daily in the total amount of $50,000.

 

71.  In addition to the civil penalty, the following action is appropriate for mitigation of the violation:

(1) A. Lusher should remove the 85-foot steel sheet piling seawall and all fill that was placed in association with the steel sheet piling seawall as depicted in drawing enclosed with the NOV.

(2) To minimize erosion, A. Lusher should stabilize and revegetate all bare and disturbed areas landward of the shoreline with a mixture of grasses (excluding all varieties of tall fescue) and legumes as soon as possible upon completion of removal.

(3) Mitigation should be completed by September 1, 2007.

(4) A. Lusher should inform the DNR as soon as mitigation is completed.

 

72.  If the mitigation required under Finding 71 is performed in a timely fashion, the civil penalty should be reduced to a total of $1,000.