CADDNAR

[CITE: Burke's Vinyl Seawalls & Reynolds v. DNR, 11 CADDNAR 345 (2008)]

 

[VOLUME 11, PAGE 345]

 

Cause #: 07-092W

Caption: Burke’s Vinyl Seawalls & Reynolds v. DNR

Administrative Law Judge: Lucas

Attorneys: pro se (Claimants); Wyndham (DNR)

Date: June 2, 2008

 

 

FINAL ORDER

 

The denial by the Department of Natural Resources of license application PL-20,661 to place a vinyl seawall at property commonly known as 11498 East South Avenue, Walkerton, and located along a portion of Koontz Lake in Starke County, Indiana, is affirmed.

 

 

FINDINGS OF FACT AND CONCLUSIONS OF LAW

 

A. Statement of the Case and Jurisdiction

 

1. This proceeding was initiated on April 25, 2007 with a petition for administrative review filed by Damon Burke, doing business as Burke’s Vinyl Seawalls (“Burke’s Vinyl Seawalls”), with the Natural Resources Commission (the “Commission”).  The petition seeks administrative review from the denial by the Department of Natural Resources (the “DNR”) of license PL-20,661 (the “subject license”) to place a 25-foot long vinyl pier under IC 14-26-2 (the “Lakes Preservation Act”) and under rules adopted at 312 IAC 11-1 through 312 IAC 11-5 to assist with implementation of the Lakes Preservation Act.  The petition averred in substantive part as follows:

 

The purpose of this document shall be to appeal the denial of application #PL-20661.  A permit request filed with the DNR for a retaining wall across 25’ of the property and 1’ landward of the shoreline at 11498 E. South Ave., Walkerton, IN.

 

This permit was denied because the shoreline is designated as an area of special concern by the DNR/State which in turn prohibits the installation of a seawall.  However, this permit request is for a RETAINING wall placed landward of the legal shoreline and will be located in the legal property owned by Cathy Reynolds.

 

The purpose of this structure is to allow Mrs. Reynolds safe access to her shoreline via her yard.  This shoreline is infested with muskrats and cannot be maintained safely.  In addition, there is an existing concrete wall in place along the shoreline being discussed here.  Unfortunately this bulkhead structure has degraded and is not being considered as an acting bulkhead by the DNR/State.  I understand that the concrete bulkhead’s condition was “borderline” and if the opinion would have been that the bulkhead was “ok”, a re-facing permit could have been issued.

 

[VOLUME 11, PAGE 346]

 

I believe that the spirit of Senate Enrolled Act no. 253 was to protect undeveloped lands from being developed and also to protect our wetlands.  In this I agree.  It appears however that the new act is affecting the owners of developed areas from maintaining their yards to a safe condition which allows access to the lake.  This is a residential area with houses and yards on either side.  [Emphasis added by Burke’s Vinyl Seawalls]

 

2. The area known as 11498 East South Avenue, Walkerton (the “property”) is located along Koontz Lake in Starke County.  “Koontz Lake” is a “public freshwater lake”, as defined at IC 14-26-2-3 and 312 IAC 11-2-17, and is subject to the Lakes Preservation Act and 312 IAC 11-1 through 312 IAC 11-5.

 

3. The proceeding is governed by IC 4-21.5 (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.  The Commission is the “ultimate authority” for the DNR under AOPA with respect to administrative review of an order arising from the Lakes Preservation Act.  IC 4-21.5-1-15 and IC 14-10-2-3.  Stephen L. Lucas was appointed under AOPA and 312 IAC 3-1 as the Commission’s administrative law judge.

 

4. The administrative law judge issued a “Notice of Prehearing Conference” on April 30, 2007 which included notice of the proceeding to the DNR as the regulatory authority.  The administrative law judge added Cathy Reynolds as an additional party on the basis she was an owner of the property on which the subject license was sought.  Her husband, Phil Reynolds, stated in open court on March 19, 2008 that he is the co-owner of the property, and he is now also added as a party.  Cathy Reynolds and Phil Reynolds are collectively referred to as the “Reynoldses”.  The Reynoldses and Burke’s Vinyl Seawalls are collectively referred to as the “Claimants”. 

 

5. The DNR and the Claimants are collectively referred to as the “Parties”.  The Parties have all participated actively in the proceeding.

 

6. The Commission has jurisdiction over the subject matter and jurisdiction over the persons of each of the Parties.

 

 

B. Hearing de Novo, Burden of Proof, and Issues for Administrative Review

 

7. Administrative review of a DNR licensure determination is conducted de novo.  Rather than deferring to the DNR determination, de novo review requires the administrative law judge to consider and apply proper weight to the evidence.  Crafton, et al. v Hopkins, 10 Caddnar 227 (2006) applying DNR v. United Refuse Co., Inc., 615 N.E.2d 100 (Ind. 1993).

 

[VOLUME 11, PAGE 347]

 

8. At each stage of a proceeding, a party requesting that an agency take action or asserting an affirmative defense has the burden of going forward and the burden of persuasion (sometimes collectively referred to as the burden of proof) with the evidence.  IC 4-21.5-3-14(c).  A person seeking the benefit of a license under the Lakes Preservation Act has the burden of proof for entitlement to the license.  Clauss v. DNR, 11 Caddnar 150, 151 (2007), and, generally, Ind. DNR and NRC v. Krantz Bros. Const., 581 N.E.2d 935 (Ind. App. 1991).

 

9. Findings under AOPA must be based upon evidence that is “substantial and reliable”.  IC 4-21.5-3-27(d) and Citizens Action Coalition of Ind. v. N. Ind. Pub. Serv. Co., 796 N.E.2d 1264 (Ind. App. 2003).  The standard of review under AOPA is “preponderance of the evidence”.  Indiana Dept. of Natural Resources v. United Refuge Company, Inc., 615 N.E.2d 100 (Ind. 1993) and Dowden v. Department of Natural Resources, 6 Caddnar 25 (2001). 

 

10. “Preponderance of the evidence” refers to evidence which, when considered and compared with that opposed to it, has more convincing force, and which produces in the mind of the trier of fact, a belief that what is sought is more likely true than not.  Bivens v. State, 642 N.E.2d 928 (Ind. 1994).  The trier of fact must be convinced from a consideration of all evidence that the issue for which a party has the burden is more probably true than not true.  Ken Schaefer Auto Auction v. Trustison, 198 N.E.2d 873 (Ind. App. 1964).

 

11. The hearing in this proceeding is conducted de novo.  As the license applicant and the agent for the license applicant, the Claimants have the burden of proof by a preponderance of the evidence.

 

12. A hearing was convened as scheduled in North Judson, Starke County, Indiana on March 19, 2008.  Evidence was presented by all Parties.  At the close of the hearing, the Parties were provided until April 18, 2008 with the opportunity to file and serve simultaneous post-hearing briefs.  The DNR timely filed the “Respondent Department of Natural Resources’ Post Hearing Brief”, but the Claimants elected not to file a post-hearing brief. 

 

13. The issues on which the Claimants seek administrative review are not clearly defined. The petition by Burke’s Vinyl Seawalls, referenced in Finding 1, gives some insight.  The Claimants’ seemingly pursued alternative issues at hearing.  The election by the Claimants not to file a post-hearing brief aggravates the ability to conduct administrative review.  Even so, the Claimants are believed to have acted in good faith.  Issues are articulated by the administrative law as best as can be discerned from the pleadings and the evidence.

 

 

C. Retaining Wall Landward of the Shoreline

 

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14. In the petition by Burke’s Vinyl Seawalls, an issue given emphasis was that the license application is for a retaining wall one foot landward of the shoreline or water line of Koontz Lake and located on the private land of the Reynoldses.  Implicit to the contention is that the proposed vinyl structure is not a seawall subject to DNR jurisdiction under the Lakes Preservation Act.

 

15. For most purposes, the DNR’s geographic jurisdiction under the Lakes Preservation Act is limited to the “shoreline or water line”, as described under IC 14-26-2-4, and lakeward within a public freshwater lake.  This principle has been applied to the construction of seawalls.  Illustrative is T. Lusher, Jr. v. DNR, 11 Caddnar 137, 143 (2007) which considered a seawall which was placed in 2003.  “Licensing requirements for the placement of a new seawall are provided at 312 IAC 11-4-2.  A written license [is required] 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.” 

 

16. In limited circumstances, the DNR’s jurisdiction under the Lakes Preservation Act extends landward of the shoreline or water line.  Illustrative is IC 14-26-27 which controls the construction of ditches or dams which may lower the water level of a public freshwater lake covering an area of at least ten acres.  In addition, the Commission has found the DNR has jurisdiction to “exercise control over construction activities in immediate proximity to the lake which have the potential for negatively impacting the lake, such as through sedimentation.”  Pipp v. Spitler, 11 Caddnar 39, 52 (2007) citing Gardner v. Department of Natural Resources and Taggert, et al., 7 Caddnar 192, 195 (1997). 

 

17. “Effective July 1, 2006, the Indiana General Assembly made several amendments to the Lakes Preservation Act, including expanding the DNR’s jurisdiction ten feet landward of the shoreline with regard to the construction of walls.  See IC 14-26-2-23(a)(2)(B) as amended by P.L. 152-2006, SEC. 3.”  Pipp v. Spitler at 52.

 

18. The legislative intent of the 2006 amendments is unambiguous.  The DNR now has jurisdiction over a structure, which if placed in the lake or along the shoreline or water line would function as a seawall, even if the structure is placed within ten feet landward of the shoreline or water line.  The Commission has jurisdiction over the vinyl structure which is anticipated by the subject license.[1]

 

[VOLUME 11, PAGE 349]

 

D. Seawall Placement in an Area of Special Concern

 

19. For the placement of seawalls along the shoreline of a public freshwater lake, the Commission has adopted a three-tiered approach in 312 IAC 11-1 through 312 IAC 11-5.  A “natural shoreline” or a “significant wetland” exhibits the most pristine characteristics, and in these areas seawall construction is limited to bioengineered materials.  An “area of special concern” exhibits an intermediate condition, and here a seawall may be constructed of bioengineered materials or of glacial stone.  A “developed area” exhibits the greatest disruption by human activities, and in a developed area a seawall may be constructed of bioengineered materials, glacial stone, riprap, or an approved bulkhead material.

 

20. For consideration in this proceeding is whether the property is located in an “area of special concern” or a “developed area”.  The DNR contends the site is an “area of special concern”, and the Claimants contend the site is a “developed area”.

 

21. An “area of special concern” is defined at 312 IAC 11-2-2 as follows:

 

   Sec. 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.

 

22. While evaluating the application for the subject license, the DNR concluded the property is an “area of special concern” based upon 312 IAC 11-2-2(1).  The DNR concluded that the property has an altered shoreline where bulkhead seawalls were at least 250 feet apart.

 

23. The Parties do not contest that the shoreline adjacent to the property has been altered.  As discussed subsequently in more detail, artifacts indicate a seawall or similar structure was once present.  Also, a portion of the Reynoldses’ yard is composed of fill.

 

24. “Bulkhead seawall” is defined at 312 IAC 11-2-5.  The definition provides in pertinent part:

 

Sec. 5. (a) “Bulkhead seawall” means a vertical, or near vertical, solid concrete, steel sheet piling, or vinyl piling structure, which has the purpose of shoreline protection.

(b) A timber wall may be deemed to be a bulkhead wall if the property owner proves to the satisfaction of the division of water that the wall functions as a bulkhead wall by providing evidence in the form of a written assessment from a registered professional engineer, licensed professional geologist, or soil scientist with expertise in shoreline protection or wave dynamics….

 

 

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25. A shoreline along a public freshwater lake qualifies as an “area of special concern”, if bulkhead seawalls are at least 250 feet apart, regardless of whether the shoreline has been affected by dredging, a neighboring glacial stone seawall, a beach, or a similar alteration.  T. Lusher, Jr. v. DNR, cited previously, at 145.

 

26. Jeremy Price estimated the nearest functional bulkhead seawall east of the property was at a distance of approximately 181 feet.  The nearest functional seawall to the west of the property was a distance in excess of 250 feet.  This testimony is unrefuted.

 

27. The Claimants suggested structures at the property might themselves constitute a bulkhead seawall.  Phil Reynolds testified there were large slabs within the water along the shoreline of the property.  These are “too immensely large to have been moved from somewhere else,”[2] and they were present when the Reynoldses acquired the property three years ago.  The house was built in the 1940s, and Phil Reynolds does not know when the slabs were placed.  In describing the potential for the slabs constituting a former bulkhead seawall, Phil Reynolds testified, “We never saw it, but the evidence is there.”  He was asked on cross-examination, “Whatever was there has broken down and failed?”  Reynolds answered, “Yes.”

 

28. Other witnesses for both Parties also testified to evidence of materials suggesting a structure was once present along the shoreline of the property.  For example, Jeremy Price testified, “What is currently existing, I would not classify as a stone seawall.”  He reflected that the materials appeared to be stones that were “stacked vertically” and today “probably causes more erosion problems than it would be likely to alleviate.” 

 

29. No witness testified to observing a functioning bulkhead seawall at the property either currently or within memory.  Even assuming there was once a bulkhead seawall at the property, the remaining artifacts of the structure are insufficient to today constitute a bulkhead seawall.  The nearest bulkhead seawalls are those to which Price testified and which are described in Finding 26.

 

30. The property borders on an “area of special concern”. 

 

31. The ordinary standards for individual licenses for particular types of structures, such as marinas, seawalls, seawall refacings, underwater beaches, boatwells, and fish attractors, are set forth in 312 IAC 11-4. 

 

 

[VOLUME 11, PAGE 351]

 

32. More particularly, the placement of a seawall within an area of special concern is governed by 312 IAC 11-4-2 which provides in pertinent parts as follows:

 

Sec. 2. (a) A written license under IC 14-26-2 and this rule is required for the construction or placement of a seawall within or along the shoreline or water line of a public freshwater lake.

….

            (c) If a 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.

(2) Glacial stone.

….

            (e) For a new seawall comprised of glacial stone or riprap, the base of the wall must not extend more than four (4) feet lakeward of the shoreline or water line.

(f) The lakeward face of the new seawall must be located along the public freshwater lake’s shoreline or water line as determined by the [DNR].

(g) The lakeward extent of bioengineered material must be coordinated with the [DNR] before filing the license application.

(h) The director or a delegate may not issue a license for the placement of an impermeable material behind or beneath a new seawall.

(i) Filter cloth placed behind or beneath a new seawall must be properly anchored to prevent displacement or flotation.

(j) Erosion from disturbed areas landward of the shoreline or water line must be controlled to prevent its transport into the lake....

 

33. “Bioengineered” is defined at 312 IAC 11-2-3 to mean “the use of a combination of biological elements (plant materials) and structural or mechanical reinforcements for stabilization, revetment, or erosion control. Biological and mechanical elements must function together in an integrated and complementary manner.”

 

34. “Glacial stone” is defined at 312 IAC 11-2-11 to mean “a rounded stone that satisfies each of the following:

(1) Was produced by glacial activity.

(2) No individual stone weighs more than one hundred twenty (120) pounds.

(3) At least ninety percent (90%) of the material passes through a twelve (12) inch sieve.

(4) Not more than ten percent (10%) of the material passes through a six (6) inch sieve.”

 

35. Pursuant to 312 IAC 11-2-21, a “seawall” refers to “a manmade structure placed along the shoreline or water line of a public freshwater lake for the purpose of shoreline stabilization.”

 

 

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36. A seawall that is constructed of either bioengineered materials or glacial stone is not a bulkhead seawall.

 

37. The application for the subject license seeks to place a vinyl seawall in an “area of special concern.  A vinyl seawall is a “bulkhead seawall” and not within the category of authorized by the Commission for placement within an “area of special concern”.

 

 

E. Cumulative Effects

 

38. The Parties contest whether approval of the application would likely have adverse cumulative effects.

 

39. “Cumulative effects” are among the factors considered by the DNR in evaluating an application for a license under the Lakes Preservation Act.  As provided in IC 14-26-2-23(c):

In determining the merits of the application, the [DNR] may consider any factor, including cumulative effects of the proposed activity upon the following:
        (1) The shoreline, waterline, or bed of the lake.
        (2) The fish, wildlife, or botanical resources.
        (3) The public rights described in section 5 of this chapter.
        (4) The management of watercraft operations under IC 14-15.
        (5) The interests of a landowner having property rights abutting the lake or rights to access the lake.

 

40. A “cumulative effect” is defined at 312 IAC 11-2-6 as follows:

   Sec. 6. “Cumulative effect” means the impact on the environment that results from the incremental impact of the action when added to other past, present, and reasonably foreseeable future actions regardless of what person undertakes the other actions.  Cumulative effects can result from individually minor but collectively significant actions taking place over a period of time.

 

41. Jon Eggen testified that the DNR routinely reviews license applications on public freshwater lakes for their potential cumulative effects. 

 

42. Eggen testified one way that the subject license would have an adverse cumulative effect is by “the added negative impacts of loss of habitat and loss of structure.”  The vertical wall imposed by a vinyl seawall would damage habitat for wildlife, particularly reptiles and amphibians, because these animals require access to water and to land.

 

43. Eggen testified a second way that the subject license would have an adverse cumulative effect is by changing the shoreline classification, in the vicinity of the property, to a shoreline classification with less environmental protection.  Placing a bulkhead seawall would downgrade the shoreline classification for the area adjacent and east of the property from an “area of special concern” to a “developed area”.  If this adjacent shoreline area is reclassified from “area of special concern” to “developed area”, the reclassified shoreline becomes eligible for the placement of new bulkhead seawalls. 

 

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44. Price testified that between the property, and the next bulkhead seawall which is 181 feet east of the property, an application for a license to place a bulkhead seawall was recently denied because it was in an “area of special concern”.  If the DNR were to approve a bulkhead seawall on the property, the site of the recent denial would no longer be would be one where “bulkhead seawalls are at least two hundred fifty (250) feet apart”.  The site of the recent denial would be downgraded to a “developed area” and become eligible for a bulkhead seawall.  Price expressed the opinion that if the shoreline classification changed, “and that became eligible for bulkhead walls, we would expect to see over time, that entire shoreline filled with bulkhead walls.”

 

45. The placement of a vinyl seawall on the property would likely have adverse cumulative effects, immediately and in the foreseeable future.  An immediate loss of natural habitat and structure would be caused by the placement of the 25-foot long pier anticipated by the subject license.  More damaging is that an additional 181 feet of shoreline east of the property would be downgraded from an “area of concern” to a “developed area”.  The reasonable expectation is that a significant portion of this area would, in the foreseeable future, be filled with bulkhead seawalls.

 

46. An aggravating factor which militates against issuance of the subject license is the adverse cumulative effect which would likely result from the Claimants’ placement of a vinyl seawall along the property.

 

 

F. Licensure of Structures for Erosion Control

 

47. In addition to standards for the licensure of individual structures at 312 IAC 11-4, the Commission has adopted rules at 312 IAC 11-5 to provide for innovative practices, lawful nonconforming uses, and to allow for extraordinary remedies where extraordinary conditions exist.

 

48. Included within 312 IAC 11-5-3 are remedies available to control vexing erosion problems.  As pertinent to this proceeding, this rule section provides:

 

(a) If an applicant demonstrates to the satisfaction of the department that modifications to conditions required under this article would promote a purpose described in subsection… (c), the director or a delegate may issue a license under this section that incorporates those modifications. A person who wishes to secure a license under this section must confer with the department before filing an application.

 

 

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….

 

(c) If a purpose of the license is to control erosion and stabilize the shoreline or waterline, the department may issue a license where supported by a written assessment from a registered engineer, geologist, or soil scientist (with expertise in bank stabilization and erosion control practices) that the proposal is the only viable method for controlling erosion and stabilizing the shoreline or waterline. The written assessment must evaluate the following:

(1) The composition of existing shoreline terrain.

(2) Impacts due to wind and wave action.

(3) The severity of erosion and need for bank stabilization.

(4) The suitability of materials to armor and provide bank stabilization.

 

(d) The applicant for a license under this section must also demonstrate the proposal would not affect the:

(1) public safety;

(2) natural resources;

(3) natural scenic beauty; or

(4) water level;

of the lake in a manner otherwise prohibited by IC 14-26-2.

 

49. The preponderance of the evidence is that the Reynoldses have an erosion problem at the subject property.  A seawall by its nature is an erosion control mechanism.  The unrefuted evidence is that a vinyl seawall could be placed to afford protection from erosion.

 

50. In order to qualify for relief under 312 IAC 11-5-3, however, the Claimants must show by a preponderance of the evidence that they meet each of its requirements.

 

51. Subsection (a) requires that to qualify for relief under 312 IAC 11-5-3, a person “must confer with the department before filing an application.”  The unrefuted evidence is that the Claimants did not comply with this requirement.[3]

 

52. Shane L. McBurnett, an Indiana professional soil scientist, testified for the Claimants that neither a glacial stone seawall nor a bioengineered seawall would control the erosion problem at the property.  He testified that a properly placed bulkhead seawall would be effective. 

 

53. McBurnett is an expert qualified to evaluate the factors set forth in 312 IAC 11-5-3(c).  His testimony addressed all the factors of subsection (c) sufficiently for the Claimants to meet the burden of going forward to show satisfaction with subsection (c), at least as to the use of a bulkhead seawall.  No expert qualified under subsection (c) disputed McBurnett’s testimony that a seawall of bioengineered materials would be inadequate to control the erosion problem at the property.

 

 

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54. McBurnett’s persuasiveness as to the use of a glacial stone seawall at the property was diminished somewhat by his testimony.  He was asked on cross-examination, “Are you disagreeing with the rule adopted by the Natural Resources Commission that any areas of special concern should be glacial rock[4] and bioengineered products?”  McBurnett answered: “I don’t agree with glacial rock because there’s no such thing as glacial rock.  That term is not used in any book.  It’s either glacial outwash or igneous rock, metamorphic rock, mixed rock or sedimentary rock, but glacial rock is not a term to be used.  If they’re assuming glacial rock is something you get out of a gravel pit, it’s mostly rounded, and I would not agree with rounded rock at all.”

 

55. The conceptual approval of seawalls constructed of glacial stone was a consequence of rulemaking by the Commission in its quasi-legislative capacity, following a hearing process under IC 4-22-2, where experts and laypersons could express perspectives on the merit or absence of merit of this regulatory approach.  The rule cannot properly be nullified in an adjudicatory proceeding based on the opinion of one expert.  If the rule is substantively defective, the remedy is to modify the rule.

 

56. McBurnett did not testify to familiarity with the Lakes Preservation Act or with 312 IAC 11-1 through 312 IAC 11-5.  These establish a regulatory design where “seawall,” “bulkhead seawall,” and “glacial stone” have meanings.  McBurnett’s testimony that “glacial rock” has no meaning and is not used in any book is in error, although one interpretation might be he meant the term is not used in professional journals.  A rule definition is not limited to terms used in professional journals.  DNR witnesses augmented the concept of what they believe is an effective glacial stone seawall by referencing recommended design techniques, including testimony by Jon Eggen pertaining to a 3:1 slope for the top layer of glacial stone and for the use of mesh.  McBurnett’s testimony did not reveal whether he was unaware of design techniques or whether he denied their validity.

 

57. The record is unclear whether McBurnett discounted the efficacy of a glacial stone seawall because he believes the Commission’s rules are misdirected, because he is unfamiliar with the full context of the regulatory program, or both.  In any event, the persuasiveness of the testimony is somewhat diminished.

 

58. James Hebenstreit, an Indiana licensed professional engineer, testified for the DNR.  He is an expert qualified to evaluate the factors set forth in 312 IAC 11-5-3(c).  Hebenstreit testified on direct examination that he has seen “a large number of glacial stone seawalls that are effective.  I think they require a little more maintenance, but I believe in many settings they are an adequate way to protect a shoreline from erosion.”  He testified during cross-examination by Burke’s Vinyl Seawalls, “I would say just from the general location of that property, I would think that glacial stone would work in that environment….  With that location, I wouldn’t expect wave action to be that significant of a factor.”

 

 

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59. There has been no effort in the memory of any witness to control erosion at the property with a glacial stone seawall.  Although there is evidence a structure once existed, the original nature of the structure can only be guessed.  Whatever structure once existed has been derelict within memory.

 

60. For an area where the rules authorize the use of a new bulkhead seawall, concrete or steel sheet piling may be used.  312 IAC 11-4-2(d)(4) and 312 IAC 11-4-2(d)(5).  The Commission rule does not approve a bulkhead seawall constructed of vinyl.

 

61. In his written analysis, McBurnett supports the use of a “bulkhead” seawall and not uniquely the use of a bulkhead seawall constructed of vinyl.  Stipulated Exhibit VIII.  To approve the subject license under the current rule, the evidence must support a finding that only a vinyl seawall would suffice.  There is no evidence to support this proposition.  A vinyl seawall may be no more intrusive than a concrete seawall or a steel sheet piling seawall, but a rule amendment would be needed to generally authorize the use of vinyl for bulkhead seawalls.

 

62. Although additional experience at the property might result in a different factual conclusion, the preponderance of the evidence does not currently support a finding the Claimants have met the burden of proof to establish that a bulkhead seawall is required under 312 IAC 11-5-3(c).[5]  There is no evidence to support a finding that a bulkhead seawall constructed of vinyl, as sought in the subject license, is required instead of a bulkhead seawall constructed of concrete or steel sheet piling.

 

63. With respect to the requirements of 312 IAC 11-5-3(d)(1), the Claimants have established a vinyl seawall could be placed which would satisfy public safety.

 

 

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64. With respect to the requirements of 312 IAC 11-5-3(d)(2), the Claimants have not established that a vinyl seawall could be placed which does not adversely affect the natural resources in violation of the Lakes Preservation Act.  Essential elements of natural resources are fish, wildlife, or botanical resources. 

 

65. The only persons who testified with expertise concerning fish, wildlife, or botanical resources are experienced professionals for the DNR.  Jeremy Price has a Master of Science in fisheries science and a Bachelor of Science in fisheries and aquatic science.  Jon Eggen has a Bachelor of Science in aquatic ecology.  Both Price and Eggen testified to harm by bulkhead seawalls to fish and fisheries habitat and to wildlife species, particularly reptiles and amphibians.  This harm results from the impervious nature of bulkhead seawalls and from scouring caused by the deflection of waves off their traditionally flat surfaces.  The Claimants seek a vinyl seawall with a variegated surface, which may mitigate the amount of scouring, but the harm resulting from the impervious nature of a vinyl bulkhead seawall would be unabated. 

 

66. The relatively short length (approximately 25 feet) of the proposed seawall might pose a degree of harm which would, standing alone, be acceptable.  When considered in light of the adverse cumulative effects found in Finding 45 and Finding 46, the degree of harm to natural resources is unacceptable under 312 IAC 11-5-3(d)(2).

 

67. With respect to the requirements of 312 IAC 11-5-3(d)(3), the Claimants have established the degree of harm to the natural scenic beauty of Koontz Lake would not be so great as to preclude the issuance of a license for the placement of a vinyl seawall.

 

68. With respect to the requirements of 312 IAC 11-5-3(d)(4), the Claimants have established a vinyl seawall could be placed which would not affect the water level of Koontz Lake.

 

69. The Claimants have not met every element of the burden of proof required to establish entitlement to a license for erosion control under 312 IAC 11-5-3.