[CITE: T. Lusher, Jr. v. DNR, 11 CADDNAR 137 (2007)]
[VOLUME 11, PAGE 137]
Cause
#: 04-133W
Caption:
T. Lusher, Jr. v. DNR
Administrative
Law Judge: Lucas
Attorneys:
Paulen; Knotek
Date:
April 19, 2007
FINAL ORDER
(1) The denial of application
PL-19,410, for an after-the-fact license to place a steel sheet
piling seawall on
(2) Notice of Violation No.
V-4038-PL is affirmed with the following sanctions ordered:
(A)
A civil penalty is assessed against Timothy Lusher and in favor of the
Department of Natural Resources in the total amount of $75,000.
(B)
In addition to the civil penalty, the following action is ordered for
mitigation of the violation:
(1)
Timothy Lusher shall remove the 265-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, Timothy Lusher 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)
Timothy Lusher shall complete mitigation by September 1, 2007.
(4)
Timothy Lusher 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. Timothy Lusher (“T. Lusher”)
filed a “Petition for Administrative Review” with the Natural Resources
Commission (the “Commission”) of Notice of Violation No. V-4038-PL (the “NOV”)
on June 30, 2004. The NOV alleged a
violation with respect to 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 138]
2. More particularly, the NOV
provided in substantive part as follows:
TO: Mr. Timothy Lusher
Mr. Kevin Mellot
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 265 feet of the lake frontage
of
Finding
This
site is located in an area of special concern.
Pursuant to IAC 312 11-4-2, a new seawall located in an 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:
1)
[T. Lusher] and/or
his authorized representative shall remove the 265 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)
[T. 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.
[VOLUME 11, PAGE 139]
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
3. The request for
administrative review described in Finding 1 was assigned to a Commission
administrative law judge and designated as Administrative Cause Number 04-133W
(“this proceeding”). A “Notice of
Prehearing Conference”, with a copy of the request for administrative review
attached, was forward to the attorneys for T. Lusher and to the attorney for
the DNR on July 2, 2004. Service was
successfully made in this proceeding upon both of the 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.
4. For the same steel sheet
piling seawall that was the subject of the NOV, T. Lusher filed an application
for an after-the-fact license (the “after-the-fact license”), and the DNR
denied the application. The site of the
NOV and of the after-the-fact license is the “subject property”.
[VOLUME 11, PAGE 140]
5. The denial of the application
was described by the DNR’s Division of Water as follows:
APPLICATION #: PL-19410
LAKE:
APPLICANT: Timothy
Lusher
DESCRIPTION: A
steel sheet piling seawall was constructed across 265’ 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 December 2, 2002, December 12, 2002, January 24, 2003, May 14,
2003, and December 1, 2003.
LOCATION: 51292
County Road 109 Maple Grove Subdivision 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
6. The DNR identified its
denial reasons as follows:
(1) Pursuant to IC 14-26-2, the
DNR is responsible for regulating construction activities within Indiana’s public
freshwater lakes; as such, the is charged with preserving and protecting the
waters of the lakes for the sue 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.
(2) 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.
(3) Direct and cumulative
impacts on the natural resources and natural scenic beauty of the lake.
7. On December 20, 2006, a
hearing was conducted as scheduled in this proceeding (concurrently with Administrative
Cause Number 04-123W) at
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).
[VOLUME 11, PAGE 141]
9. In this proceeding, the
Commission has jurisdiction under AOPA for administrative review of the NOV and
of the denial of the after-the-fact license.
The Commission also has jurisdiction under AOPA over the persons of T.
Lusher and the DNR.
B. History of Construction
at the Subject Property and Surrounding Area
10. Arthur Lusher, Jr. 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
11. Arthur Lusher, Jr. 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. T. Lusher testified that his recollection was similar
to the recollection of his brother, Arthur Lusher, Jr., with respect to the
permitting and construction activities by their father, Arthur Lusher, Sr., in
the late 1950s and 1960s, although T. Lusher is younger than Arthur Lusher, Jr.
and he has less detailed recollection 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
14. Within 200 feet of the shoreline of most public
freshwater lakes, including
15. For the near-shore channel that is adjacent to the
subject property, boats are subject to an idle speed limit.
[VOLUME 11, PAGE 142]
16. Arthur Lusher, Jr. 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 Arthur Lusher, Jr.
17. Arthur Lusher, Jr. 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, T. Lusher, and a contract was entered with Mellot that included the
subject property as well. Arthur Lusher,
Jr. 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.” Construction took place in 2002.
18. T. Lusher testified the initial contacts
with Mellot for a sheet steel piling seawall were made by his brother. T. Lusher filed the after-the-fact
application with the DNR after being advised by Mellot that an application was
required and that Mellot “helped a little bit to explain how to do it.” T. Lusher testified the steel sheet piling
seawall varied from seven to eleven inches higher than the former seawall of
“chunks of cement” and that it was placed immediately lakeward of the existing
seawall.
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
[VOLUME 11, PAGE 143]
20. Ledet is responsible for
conducting lake and stream fish surveys for the counties in his District,
including
21. The DNR has performed fish
surveys on
22. Ledet is the only person to
testify who has expertise in fisheries biology.
23. Ledet testified he has been
to 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 T. Lusher for any documentation that T.
Lusher could provide concerning the site conditions that existed along the
shoreline of the subject property before the sheet steel seawall was
constructed. T. Lusher provided no such
documentation.
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.
[VOLUME 11, PAGE 144]
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.”
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
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.
[VOLUME 11,
PAGE 145]
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 265 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 subject property.
38. T. Lusher testified the nearest bulkhead
seawall was approximately 215 feet south of the subject property, and,
similarly to the one that T. Lusher caused to be placed, was constructed of
sheet steel piling.
39. The bulkhead seawall south of the subject
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. Arthur Lusher testified that the area
south of his seawall and north of the subject seawall was “open” and contained
no seawall.
41. On cross-examination, Ledet testified
there was a “wood timber wall” immediately north of the property owned by
Arthur Lusher, Jr. Arthur Lusher, Jr.
also testified to the existence of this neighbor’s wooden seawall, although he
indicated there was a drain between the two seawalls.
42. T. Lusher and the DNR seemingly disagree
as to whether the “wood timber wall” immediately north of Arthur Lusher, Jr.’s
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, Arthur Lusher, Jr. caused an
85-foot long sheet steel piling seawall to be placed at property owned by
Arthur Lusher, Jr. The Arthur Lusher,
Jr. property is located generally north of the subject property. Another property also intervenes between the Arthur
Lusher, Jr. property and the subject property.
[VOLUME 11, PAGE 146]
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 Arthur Lusher, Jr.
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 T. 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 subject property.
49. Ledet testified that, prior to review of
the after-the-fact license application, he had performed fish surveys within
[VOLUME 11, PAGE 147]
50. Neither the former seawall on the subject
property nor the former seawall on the Arthur Lusher, Jr. 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 T.
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
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 T. 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 T. Lusher’s steel
sheet piling seawall was approximately six inches lakeward of the previous
crushed concrete seawall.
53. The evidence supports a finding that the construction
of the sheet steel seawall encroaches on the public waters of
54. A. Lusher has not shown by a preponderance of the
evidence that the after-the-fact license was wrongfully denied by the DNR.
[VOLUME 11, PAGE 148]
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 T. 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 T. Lusher have not been shown to
pose danger to persons or property, but they have caused significant harm to
the environment.
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.”
[VOLUME 11, PAGE 149]
65. An unlicensed 265-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 T. 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 T. 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 $750 daily in the total amount of
$75,000.
71. In addition to the civil penalty, the following action
is appropriate for mitigation of the violation:
(1)
T. Lusher should remove the 265-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, T. 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)
T. 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.
[1]
[2] The court reporter has not been
requested to prepare a transcript of testimony at hearing. If a witness is shown as being quoted in these
findings, the statement is as nearly verbatim as could be determined by the
administrative law judge. If a
transcript is subsequently prepared that indicates different wording, the
transcript shall be considered the official record and a quotation as
paraphrasing of witness testimony.
[3] Although named in the NOV, Kevin Mellot did not seek administrative review and did not participate in this proceeding. This Final Order shall not be construed to relieve any claim for relief either of the parties may have against Mellot.
[4] As provided in IC 4-21.5-3-32, an agency is required to index final orders and may rely upon indexed orders as precedent. Caddnar was adopted by the Commission in November 1988 as the index of agency decisions anticipated in AOPA. Barbee Villa Condominium Owners Assoc. v. Shrock, 10 Caddnar 23 (2005). Amendments made to AOPA in 1997 also direct the Commission to address agency precedents cited by the parties where a proceeding is governed by IC 25. IC 4-21.5-3-27(c). Application of these statutory directives supports consistency and predictability for the Commission’s administrative decisions under the Lakes Preservation Act.
[5] The propriety of the former seawall is not at issue in this proceeding but appears to have qualified under 312 IAC 11 as a lawful nonconforming use.