CADDNAR

[CITE: Patton and Sedgwick v. DNR, 12 CADDNAR 20 (2009)]

 

 

[VOLUME 12, PAGE 20]

 

 

Cause #: 07-168W

Caption: Patton and Sedgwick v. DNR

Administrative Law Judge: Lucas

Attorneys: Urberg; Wyndham

Date: March 26, 2009

 

 

FINAL ORDER FOR SUMMARY JUDGMENT

 

(1) A summary judgment on all issues is granted in favor of the DNR and against the Claimants as follows:

(A) The Applicants sought permits from the DNR under the Lakes Preservation Act and 312 IAC 11-1 through 312 IAC 11-5 for the placement of concrete seawalls along the shoreline of four adjacent properties along Lake James, a “public freshwater lake” located in Steuben County.

(B) The DNR denied those applications on the basis “the site is located in an area of special concern as defined in 312 IAC 11-2-2.  Pursuant to 312 IAC 11-4-2(c) if a new seawall is to be placed in an area of special concern, the seawall must be comprised of either glacial stone and/or bioengineered materials.”

(C) The Claimants sought administrative review of the denial from the Commission. 

(D) The Commission has jurisdiction over the subject matter and the persons of the Parties under IC 4-21.5 and rules adopted under 312 IAC 3-1 to assist with the implementation of IC 4-21.5.

(E) The adjoining shorelines of the four Applicants form an “area of special concern” as defined at 312 IAC 11-2-2.

(F) The DNR may, in conformance with 312 IAC 11-4-2(c), issue permits to the Applicants for new seawalls constructed of bioengineered materials or of glacial stone.

(G) 312 IAC 11-4 does not authorize the DNR to issue permits to place a concrete seawall in an area of special concern. 

(H) The Applicants are disqualified under 312 IAC 11-4 from receiving permits to place a concrete seawall along the shoreline of their four adjacent properties.

(I) The Applicants have not, based upon the placement of concrete seawalls by two other property owners along Lake James, shown the denial of their applications by the DNR was arbitrary.  The evidence is without probative value because there was no evidence the two property owners were granted DNR permits.  Even if they were granted permits, there was no evidence concerning the classification of areas where the two other seawalls were placed.  312 IAC 11-4 does not prohibit the placement of concrete seawalls in developed areas.

 

[VOLUME 12, PAGE 21]

 

(J) According to a schedule agreed by the parties and then ordered by the administrative law judge, the Claimants were provided an opportunity to establish qualification for licensure, under 312 IAC 11-5-3, for the purpose of addressing vexing erosion problems.  The period has expired by which the Claimants were to have established qualification.

(K) The administrative law judge entered a “Nonfinal Order for Summary Judgment” on March 2, 2009 which included the substance of the matters contained in this Final Order.  The Nonfinal Order provided the Parties until March 20, 2009 to file objections under IC 4-21.5-3-29 and 312 IAC 3-1-12, but no objections were filed.

 

(2) The Natural Resources Commission affirms the denials by the Department of Natural Resources with respect to permits sought by Patton for PL-20,763, Brandt for PL-20,764, Wilson for PL-20,765, and Baker for PL-20,766.   These affirmations are made without prejudice to each of the Claimants to initiate new permit applications, however, and they are made without prejudice to the DNR to grant the applications upon proper factual and legal foundations established by a Claimant under IC 14-26-2 and 312 IAC 11-1 through 312 IAC 11-5.

 

 

FINDINGS

 

1. Petitions for administrative review were initiated by Scott Patton (“Patton”) for PL-20,763, Sarah Brandt (“Brandt”) for PL-20,764, Doran Wilson (“Wilson”) for PL-20,765, and David Baker (“Baker”) for PL-20,766 with respect to denials by the Department of Natural Resources (the “DNR”) of permit applications for concrete seawalls on their four adjoining properties along Lake James in Steuben County, Indiana,.  Patton, Brandt, Wilson, and Baker are collectively the “Applicants”.   George Sedgwick (“Sedgwick”) joined the Applicants in seeking administrative review.  The Claimants and Sedgwick are collectively the “Claimants”.

 

2. Lake James in Steuben County is a “public freshwater lake” under IC 14-26-2 (sometimes called the “Lakes Preservation Act”) and rules adopted by the Natural Resources Commission (the “Commission”), at 312 IAC 11-1 through 312 IAC 11-5, to assist with implementation of the Lakes Preservation Act.  Gerbers & Buhr, et al. v. Nix, et al., 9 Caddnar 132 (2004).

 

3. The DNR is the permitting agency for the Lakes Preservation Act and 312 IAC 11-1 through 312 IAC 11-5.  The Commission is the “ultimate authority” under IC 4-21.5 (sometimes referred to as the “Administrative Orders and Procedures Act” or “AOPA”) for the administrative review of DNR permitting decisions.  IC 14-10-2-3.  The Commission has adopted rules at 312 IAC 3-1 to assist with its implementation of AOPA.

 

4. The Claimants and the DNR are the “Parties”.

 

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

 

[VOLUME 12, PAGE 22]

 

6. The Claimants sought permits for new concrete seawalls at the “shoreline or water line” (as the phrase is applied under IC 14-26-2-4(1)) of Lake James, with a layer of glacial stone to be placed in front of the seawalls. 

 

7. With respect to each of the Applicants, the DNR’s stated reason for denial was because “the site is located in an area of special concern as defined in 312 IAC 11-2-2.  Pursuant to 312 IAC 11-4-2(c) if a new seawall is to be placed in an area of special concern, the seawall must be comprised of either glacial stone and/or bioengineered materials.”

 

8. At concurrent prehearing conferences held on September 13, 2007, the four proceedings for administrative review were consolidated.

 

9. The Claimants contend that they “live in an area of Lake James” which “is not suitable for any type of seawall other than concrete.”

 

10. On February 29, 2008, the “Respondent Department of Natural Resources’ Motion for Summary Judgment” and the “Respondent Department of Natural Resources’ Memorandum in Support of Respondent’s Motion for Summary Judgment” were filed.  The “Claimants’ Memorandum in Response to Respondent’s Motion for Summary Judgment” was filed on April 21, 2008.  The “Respondent Department of Natural Resources’ Reply to Claimant’s Response to Respondent’s Motion for Summary Judgment” and “Respondent Department of Natural Resources’ Amended Filing of Exhibits and Designation of Materials in Support of Respondent’s Motion for Summary Judgment” were filed on August 20, 2008.  On his own motion, the administrative law judge granted leave to the Claimants to answer the DNR’s August 20, 2008 Reply, but the Claimants elected not to file additional documents or pleadings.

 

11. The DNR states the standard for summary judgment beginning at page 2 of the “Respondent Department of Natural Resources’ Memorandum in Support of Respondent’s Motion for Summary Judgment”.  On the second page of the “Claimants’ Memorandum in Response to Respondent’s Motion for Summary Judgment”, they agree with the DNR’s statement.

 

12. As agreed by the Parties, summary judgment can be granted when the designated evidentiary material shows there is no genuine issue of material fat, and the moving party is entitled to judgment as a matter of law.  Indiana Trial Rule 56(C); Shell Oil Co. v. Lovold Co., 705 N.E.2d 981, 983-84 (Ind. 1988).  In evaluating a motion for summary judgment:

 

The court considers only those parts of the pleadings, depositions, answers to interrogatories, admissions, matters of judicial notice, and other matters which have been designated by the parties to the trial court for consideration….  All facts and reasonable inferences drawn from those facts are construed in favor of the non-moving party….  The moving party bears the burden of proving the absence of genuine issue of material fact….  If the movant sustains that burden, the opponent must set forth specific facts showing there is a [material fact in] dispute.

 

Employers Ins. of Wausau v. Recticel Foam Corp., 1999 WL 773555 (Ind. App. 1999).

 

[VOLUME 12, PAGE 23]

 

13. “A fact is ‘material’ for summary judgment purposes if it helps to prove or disprove an essential element of the plaintiff’s cause of action.”  Weida citing Graham v. Vasil Management Co., Inc., 618 N.E.2d 1349, (Ind. Ct. App. 1993).  “A factual issue is ‘genuine’ for purposes of summary judgment if the trier of fact is required to resolve an opposing party’s different versions of the underlying facts.” Id citing York v. Union Carbide Corp., 586 N.E.2d 861 (Ind. Ct. App. 1992).

 

14. A summary judgment may be rendered on fewer than all the issues.  IC 4-21.5-3-23(a).  If a motion is not rendered upon the whole case, the administrative law judge shall make an order under IC 4-21.5-3-23(c):

…specifying the facts that appear without substantial controversy, including the extent to which the amount of damages or other relief is not in controversy, and directing further proceedings in the action as are just.  Upon the hearing of the action, the facts specified are established in the judge’s order….

 

15. By rule, the Commission has adopted a three-tiered approach to help implement the Lakes Preservation Act relative to the placement of seawalls.  A “natural shoreline” or a “significant wetland” exhibits the most pristine characteristics.  In these areas new seawall construction is limited to bioengineered materials.  An “area of special concern” exhibits an intermediate condition, and here a new seawall may be constructed of bioengineered materials or of glacial stone.  312 IAC 11-4-2(c).  A “developed area” exhibits the greatest disruption by human activities, and in a developed area a new seawall may be constructed of bioengineered materials, glacial stone, riprap, or an approved bulkhead material. Burke’s Vinyl Seawalls & Reynolds v. DNR, 11 Caddnar 345, 349 (2008).  This regulatory approach seeks to preserve and protect public freshwater lakes for the enjoyment of all the public.  Portions of shorelines exhibiting “natural scenic beauty”, and which are least affected by manmade additions or alterations, are accorded greater protections than those more disrupted.  The approach is consistent with the Lakes Preservation Act and particularly IC 14-26-2-5.

 

16. A “seawall” is “a manmade structure placed along the shoreline or water line of a public freshwater lake for the purpose of shoreline stabilization.”  312 IAC 11-2-21.

 

17. 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.

 

[VOLUME 12, PAGE 24]

 

18. “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….

 

19. Joseph Mapes, the DNR’s Lake Inspector, performs site inspection where permits are sought under the Lakes Preservation Act and 312 IAC 11-1 through 312 IAC 11-5.  He routinely makes a threshold determination to classify the shoreline of each permit application as one of the following: (1) a natural shoreline; (2) a significant wetland; (3) an area of special concern; or (4) a developed area. 

 

20. Mapes made this inspection for the Applicants’ permit applications on June 22, 2007.  He determined each of the properties “fit under the classification of area of special concern” because “the shorelines contained the characteristic of an altered shoreline where bulkhead seawalls were at least two hundred fifty (250) feet apart.”  This determination “was used to support the basis for denial of the [A]pplicants’ permit applications for concrete seawalls”.  Affidavit of Joseph Mapes (September 30, 2008), attached to “Respondent Department of Natural Resources’ Amended Filing of Exhibits and Designation of Materials in Support of Respondent’s Motion for Summary Judgment”.

 

21. The Applicants provide no evidentiary material to dispute the Mapes Affidavit.  There is no genuine issue as to the location of the sites where the Applicants seek to place concrete seawalls.  These sites are in an “area of special concern” as defined under 312 IAC 11-2-2.

 

22. The Applicants assert in the “Claimants’ Response to Respondent’s Motion for Summary Judgment” that “the intent of the statutes in question are not met by denying the permits in this case.  The regulation of the waterways in this means is allegedly to preserve the lake in its more natural state.”  Statutory and regulatory intent are derived from principles of statutory construction.  These are matters of law not fact.

 

23. David Baker, a resident of Lake James, “has observed at least two sea walls since the date of Claimants’ permit applications were denied which appear to be new construction….  Those sea walls being on the east shore of Snow Lake near Sprague Addition and Jimmerson Channel near the Nevada Mills Dam.”  Affidavit of David Baker, Exhibit “A” attached to “Claimants’ Response to Respondent’s Motion for Summary Judgment”.  The Claimants urged in their Response that “This shows an arbitrary enforcement of the regulations by the Respondent.”

 

[VOLUME 12, PAGE 25]

 

24. Assuming Baker’s Affidavit is factual, and also that the seawalls are as he believes “new”, a material fact is not established.  First, the Affidavit does not show the DNR granted a permit for either of the two referenced seawalls.  Second, the rules anticipate a new concrete seawall can be permitted in a developed area.  The Affidavit does not provide a factual basis on which to determine the two seawalls were other than properly permitted.  This aspect of Baker’s Affidavit is without probative value.

 

25. George W. Sedgwick is an Indiana resident who has been engaged in the installation of concrete seawalls for 40 years.  He is familiar with the sites on which the Applicants seek permits to place concrete seawalls.  Sedgwick has observed damage and erosion to these sites and “based on his knowledge and experience believes that said erosion will not be prevented with a glacial stone or bio engineered sea wall but rather by a concrete sea wall.”  Affidavit of George W. Sedgwick, Exhibit “B” attached to “Claimants’ Response to Respondent’s Motion for Summary Judgment”.

 

26. David Baker has observed yearly erosion of his shoreline and the shorelines of the other Claimants due to winter seasonal ice.  The erosion and severe damage occur on the Applicants’ properties despite having glacial stone seawalls.

 

27. 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.

 

28. 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.

….

 

(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.

 

[VOLUME 12, PAGE 26]

 

(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.

 

29. A person who demonstrates vexing erosion problems, and who satisfies the requirements of 312 IAC 11-5-3, can secure a permit to place a concrete seawall within an area of special concern.  Burke’s Vinyl Seawalls & Reynolds v. DNR at 353.  Although insufficient to satisfy 312 IAC 11-5-3, the Sedgwick Affidavit and the Baker Affidavit are sufficient to preclude summary judgment in favor of the DNR concerning its application.

 

30. In accordance with IC 4-21.5-3-23(b), the administrative law judge entered an “Order for Partial Summary Judgment” on September 22, 2008 that no genuine issue of material facts with respect to the following issues or claims:

(A) The Applicants sought permits from the DNR under the Lakes Preservation Act and 312 IAC 11-1 through 312 IAC 11-5 for the placement of concrete seawalls along the shoreline of four adjacent properties along Lake James, a “public freshwater lake” located in Steuben County.

(B) The DNR denied those applications on the basis “the site is located in an area of special concern as defined in 312 IAC 11-2-2.  Pursuant to 312 IAC 11-4-2(c) if a new seawall is to be placed in an area of special concern, the seawall must be comprised of either glacial stone and/or bioengineered materials.”

(C) The Claimants sought administrative review of the denial from the Commission. 

(D) The Commission has jurisdiction over the subject matter and the persons of the Parties under IC 4-21.5 and rules adopted under 312 IAC 3-1 to assist with the implementation of IC 4-21.5.

(E) The adjoining shorelines of the four Applicants form an “area of special concern” as defined at 312 IAC 11-2-2.

(F) The DNR may, in conformance with 312 IAC 11-4-2(c), issue permits to the Applicants for new seawalls constructed of bioengineered materials or of glacial stone.

(G) 312 IAC 11-4 does not authorize the DNR to issue permits to place a concrete seawall in an area of special concern. 

(H) The Applicants are disqualified under 312 IAC 11-4 from receiving permits to place a concrete seawall along the shoreline of their four adjacent properties.

(I) The Applicants have not, based upon the placement of concrete seawalls by two other property owners along Lake James, shown the denial of their applications by the DN R was arbitrary.  The evidence is without probative value because there was no evidence the two property owners were granted DNR permits and because there was no evidence concerning the classification of areas where the two other seawalls were placed.  312 IAC 11-4 does not prohibit the placement of concrete seawalls in developed areas.

 

[VOLUME 12, PAGE 27]

 

31. The administrative law judge found, in the “Order for Partial Summary Judgment” entered on September 22, 2008, genuine issues of material facts as to whether the Applicants were, under 312 IAC 11-5-3, entitled to permits for the purpose of addressing vexing erosion problems.  A telephone status conference was scheduled for November 5, 2008 to provide direction for making a disposition of these issues.

 

32. The telephone status conference was conducted as scheduled.  A “Report of Telephone Status Conference and Notice of Telephone Status Conference” was entered on November 6 to memorialize the discussions and orders entered during the conference held on November 5, 2008.  The Report stated in pertinent part as follows:

 

The administrative law judge referenced the “Order for Partial Summary Judgment” of September 22, 2008 in which he found “there are genuine issues of material fact as to whether the Applicants are, under 312 IAC 11-5-3, entitled to permits for the purpose of addressing vexing erosion problems.”  He found the Claimants provided affidavits which urged that only a concrete seawall would resolve their erosions problems, but because the affidavits were not shown to be based upon the opinions of qualified experts, there was not a basis to render a summary judgment in their favor.  The administrative law judge reflected that the Claimants could pursue the potential for relief based upon 312 IAC 11-5-3, or they could decline to pursue the remedy, in which event the administrative law judge would convert the partial summary judgment to a full summary judgment, as a nonfinal order, subject to additional administrative review by the AOPA Committee and then to judicial review.

 

Konrad Urberg responded that the Claimants wished to pursue relief under 312 IAC 11-5-3.  He indicated the Claimants had not retained an expert, qualified under the rule, to perform an analysis concerning the necessity for a concrete seawall, but they sought a reasonable period to do so.

 

Eric Wyndham reflected this remedy was only available based upon a party’s written request, and the Claimants had made no such request.  The administrative law judge responded they had asserted the necessity for a concrete seawall in the Affidavits filed in response to the DNR’s motion for summary judgment.  Because a proceeding under IC 4-21.5 is considered de novo, the Commission has previously determined failure to make a request, in advance of a license application, could be curable on administrative review.  Burke's Vinyl Seawalls & Reynolds v. DNR, 11 CADDNAR 345, Footnote 3 (2008).  The administrative law judge said in the Burke’s Vinyl Seawalls case, the expert testimony was found factually insufficient to support the need for a concrete seawall—effectively mooting the issue.  Also, in Burke’s Vinyl Seawalls, the timing was insufficient to allow the applicants to obtain the expert opinion and to share the opinion with DNR’s experts prior to adjudication.  The administrative law judge expressed the perspective that the opportunity for consultation between experts was an important element of the rule.  Setting a schedule for the Claimants to seek an expert opinion, to share the opinion with the DNR’s expert in an effort to seek an accord, and then to provide for full administrative review if an accord could not be achieved, would best serve administrative efficiency, as well as the environmental and social purposes of 312 IAC 11-5-3.

 

[VOLUME 12, PAGE 28]

 

The parties then agreed upon and were ordered to comply with the following schedule:

 

(1) The Claimants shall consult with an expert, qualified under 312 IAC 11-5-3(c), to determine whether a concrete seawall is the only viable method for controlling erosion and stabilizing the shoreline or waterline for the sites at issue.  If a qualified expert determines the concrete seawall is the only viable method, the opinion shall be set forth in writing and sent by the Claimants’ attorney to the DNR’s attorney by February 5, 2009.  The Claimants’ attorney shall also file a document with the administrative law judge to inform him the expert opinion has been forwarded to the DNR (although the substance of the opinion need not be included in the filing).

 

(2) The DNR’s attorney shall forward the written opinion to an expert within the DNR and provide a response to the Claimants’ attorney by March 5, 2009.  The DNR’s attorney shall also file a document with the administrative law judge to inform him the response has been forwarded to the Claimants’ attorney (although the substance of the response need not be included in the filing).

 

(3) The experts for the parties shall consult to determine whether they can achieve an agreement as to the necessity for a concrete seawall, and, if so, as to any terms and conditions on the placement of the concrete seawall that might minimize its environmental impact.

 

33. On March 2, 2009, the “Department’s Motion to Convert Partial Summary Judgment to Full Summary Judgment” was filed.  The motion recited elements of the “Report of Telephone Status Conference and Notice of Telephone Status Conference” described in Finding 32 and stated the Claimants have not provided the opinion of a qualified expert which determined a concrete seawall is the only viable method for controlling erosion and for stabilizing the shoreline or water line for the sites at issue.  The DNR also reflected that the administrative law judge stated he would convert the “Order for Partial Summary Judgment” into a nonfinal order ripe for disposition by the AOPA Committee if the Claimants did not pursue a claim for relief under 312 IAC 11-5-3.

 

34. The statements in the “Department’s Motion to Convert Partial Summary Judgment to Full Summary Judgment” appear from the record to be true and accurate, and the motion should be granted.

 

35. A summary judgment on all issues should be granted in favor of the DNR and against the Claimants as follows:

 

[VOLUME 12, PAGE 29]

 

(A) The Applicants sought permits from the DNR under the Lakes Preservation Act and 312 IAC 11-1 through 312 IAC 11-5 for the placement of concrete seawalls along the shoreline of four adjacent properties along Lake James, a “public freshwater lake” located in Steuben County.

(B) The DNR denied those applications on the basis “the site is located in an area of special concern as defined in 312 IAC 11-2-2.  Pursuant to 312 IAC 11-4-2(c) if a new seawall is to be placed in an area of special concern, the seawall must be comprised of either glacial stone and/or bioengineered materials.”

(C) The Claimants sought administrative review of the denial from the Commission. 

(D) The Commission has jurisdiction over the subject matter and the persons of the Parties under IC 4-21.5 and rules adopted under 312 IAC 3-1 to assist with the implementation of IC 4-21.5.

(E) The adjoining shorelines of the four Applicants form an “area of special concern” as defined at 312 IAC 11-2-2.

(F) The DNR may, in conformance with 312 IAC 11-4-2(c), issue permits to the Applicants for new seawalls constructed of bioengineered materials or of glacial stone.

(G) 312 IAC 11-4 does not authorize the DNR to issue permits to place a concrete seawall in an area of special concern. 

(H) The Applicants are disqualified under 312 IAC 11-4 from receiving permits to place a concrete seawall along the shoreline of their four adjacent properties.

(I) The Applicants have not, based upon the placement of concrete seawalls by two other property owners along Lake James, shown the denial of their applications by the DNR was arbitrary.  The evidence is without probative value because there was no evidence the two property owners were granted DNR permits.  Even if they were granted permits, there was no evidence concerning the classification of areas where the two other seawalls were placed.  312 IAC 11-4 does not prohibit the placement of concrete seawalls in developed areas.

(J) According to a schedule agreed by the parties and then ordered by the administrative law judge, the Claimants were provided an opportunity to establish qualification for licensure, under 312 IAC 11-5-3, for the purpose of addressing vexing erosion problems.  The period has expired by which the Claimants were to have established qualification.

 

36. Relief sought in the petitions for administrative review initiated by Patton for PL-20,763, Brandt for PL-20,764, Wilson for PL-20,765, and Baker for PL-20,766 should be denied.   The denials issued by the DNR should be affirmed with respect to each of these permit applications.