[CITE: John Nelson v. DNR, 2
CADDNAR 17 (1986)]
[VOLUME 2, PAGE 17]
Cause #: 84-118W
Caption: John Nelson v. DNR
Administrative Law Judge: Lucas
Attorneys: Knight; McInerny, DAG
Date: December 12, 1986
Order
The
Application for Approval to Alter Shore Line or Bed of a Public Fresh Water
Lake by John L. Nelson dated September 4, 1983 with respect to Jimmerson Lake in Steuben County, Indiana is denied.
FINDINGS OF FACT
1.
The Provisions of the administrative adjudication act (IC 4-22-1) govern this
action.
2.
The department of natural resources (the "Department") is an agency
as the term is defined in IC 4-22-1. The natural resources commission (the
"commission") is the ultimate authority of the Department with
respect to the subject matter of this administrative action.
3. The
Commission has jurisdiction over the subject matter and the parties to this
action.
4.
As stipulated by the parties, John L. Nelson is the fee owner of property on Jimmerson Lake in Jamestown Township, Steuben County,
Indiana, being more particularly identified as Lots 28 and 29 in Oak Shores
Subdivision (hereinafter the "Nelson property").
5. Jimmerson Lake is a "public Freshwater lake" as
the phrase is defined in IC 13-2-11.1-1.
6.
IC 13-2-11.1-2 provides as follows:
"(a)
The natural resources scenic beauty of Indiana are a
public right, and the public of Indiana has vested right in the preservation,
protection, and enjoyment of all the public freshwater lakes of Indiana, in
their present state, and the use of such waters for recreational purposes.
"(b)
The state has full powwer and control of all of the
public freshwater lakes in Indiana both meandered and unmeandered;
it holds and controls all of such lakes in trust for the use of all its
citizens for recreational purposes."
"(c)
no person owning lands bordering a public freshwater
lake has the exclusive right to the use of waters of any such lake or any part
thereof."
7.
IC 13-2-11.1-5 provides as follows: "Upon application by the owner of land
abutting a public freshwater lake, the [D]epartment
may issue a permit to change the shoreline or alter the bed of a public
freshwater lake after investigating the merits of a written application;
however, as a condition precedent to granting such a permit, the applicant
must, in writing, acknowledge that all additional water area so created is part
of the lake and dedicate it to the general public use. The application must be
accompanied by a non-refundable fee of twenty-five dollars."
8.
John Nelson is the owner of property abutting Jimmerson
Lake. John Nelson is subject to IC 13-2-11.1 where seeking to change the
shoreline or alter the bed of Jimmerson Lake.
9.
On a Departmental form dated September 4, 1983, John L. Nelson made a written
"Application for Approval to Alter Shore Line or Bed of a Public Fresh
Water lake" as anticipated under IC 13-2-11.1. The application sought
approval to dredge an area 20 feet wide and 50 to 80 feet long to gain access
to a channel on Jimmerson Lake.
10.
Located along the entirety of the Nelson property and within the boundaries of Jimmerson Lake is a wetland. The wetland is comprised
primarily of cattails, but has a deep water fringe of spatterdock and water
lily and a shallow fringe of cattails and sedges with a transition into marsh
grasses on the shoreline.
11.
A wetland is real property that has, at least intermittently, water-saturated
soils. A wetland is a natural resource.[FOOTNOTE i]
12.
A wetland provides an environment where wildlife, including fish, can raise
their young and can seek shelter.
13.
The wetland located along the Nelson property and within Jimmerson
Lake holds special significance. In past years, development on Jimmerson Lake has removed much of the vegetation along its
shoreline, making the need for preservation of the
[VOLUME 2, PAGE 18]
remaining wetland areas critical. The
wetland helps protect the lake from runoffs occurring from a nearby county
road, because it filters particulate matter and because the wetland absorbs and
ties up many pollutants washing off the road.
14.
The dredging described in the Nelson application and set forth in Finding 9
would transverse the approximate center of the wetland forming a line roughly
perpendicular to the shoreline of Jimmerson Lake.
Disturbance would result not only to the dredged area, but to the entirety of
the wetland. The ability of the wetland to provide shelter for wildlife would
be reduced. The ability of the wetland to filter particulate matter and other
pollutants would be diminished.
15.
The policy of the Department is to determine the wetlands which have a positive
effect upon the natural resources of an area, and, where practicable, to
preserve and protect those wetlands.[FOOTNOTE ii]
16.
The wetland located within Jimmerson Lake and along
the Nelson property has a positive effect upon the natural resources of the
area.
17.
If the application sought by John L. Nelson as described in Finding 9 were
granted, the policy of the Department with respect to wetlands would be
thwarted.
18.
At its meeting of May 31, 1984, The Natural Resources Commission sought to
implement its wetlands policy in making an initial determination to deny the
Nelson application. That policy is appropriate to the implementation of IC
13-2-11.1 as applicable to Nelson's application and should be affirmed.
FOOTNOTES
i. To the same effect is Wayne McClue and Jean McClue
v. Department of Natural Resources, Administrative Cause Number 85-011W.
ii. See McClue cited previously.