[CITE: Wayne McClue, et. ux. v. DNR, 3 CADDNAR 5
(1986)]
[VOLUME 3, PAGE 5]
Cause #: 85-011W
Caption: Wayne McClue, et. ux. v. DNR
Administrative Law Judge:
Lucas
Attorneys: pro se (McClue); Long, DAG
Date: January 20, 1986
Order:
The
recommended findings of ALJ are approved and adopted. . . .The application by Wayne
McClue for approval to change a shoreline or the bed
of a public freshwater lake is remanded to the Division of Water with
instructions to prepare a permit in accordance with the findings of fact. The
permit should be tendered to the Natural Resources Commission for a final determination
as soon as practicable.
FINDINGS OF FACT
1.
The provisions of the administrative adjudication act (IC 4-22-1) govern this
action.
2.
The Department of Natural Resources (hereinafter the Department) is an "agency"
as the term is defined in IC 4-22-1.
2. [Misnumbered in original Findings of Fact] The Natural
Resources Commission (hereinafter 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.
Wayne McClue and Jeanne McClue,
husband and wife (hereinafter the McClues), are
individually or jointly the fee owners of property on Snow Lake in Steuben
County, Indiana, being more particularly identified as part of the northeast
quarter of the northwest quarter of the northeast quarter of section 21, township
38 north, range 13 east (hereinafter the McClue
property).
5.
The shoreline of Snow Lake is at an elevation of 964.96 feet.
6.
Snow Lake is a lake of natural origin and is a lesser body of water in a chain
of lakes including Lake James, Steuben County.
7.
Snow Lake has been used by the public with the acquiescence of a riparian owner
and is not located in a county having a population not less than four hundred
thousand (400,000) nor more than six hundred fifty
thousand (650,000).
8.
Snow Lake is a "public freshwater lake" as the phrase is defined in IC
13-2-11.1-2.
9.
IC 13-2-11.1-2 provides as follows:
"(A)
the Natural Resources and the Natural 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 power 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 owing lands bordering a public freshwater lake
has the exclusive right to the use of waters of any such lake or any party
thereof."
10.
IC 13-2-11.1-5 provides as follows: "Upon application by the owner of land
abutting a public freshwater lake, the Department 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 nonrefundable fee
of twenty-five dollars. ($25.00).
11.
The McClues are owners of property abutting Snow
Lake. The McClues are subject to IC 13-2-11.1 where
seeking to change the shoreline or to alter the bed of Snow Lake; and, they
have standing to apply for a permit under IC 13-2-11.1-5 for the portion of
Snow Lake abutting the McClue property.
12.
The McClues are riparian owners of lands abutting
Snow Lake.
13.
[Proposed finding 13 was deleted in accordance with an objection filed by
counsel for the Department and after the ALJ stated he did not oppose its
deletion. The McClues did not comment on the
deletion.]
14.
[Due to a clerical error, there is no finding 14.]
15.
On a Departmental form dated October 13, 1983, Wayne McClue
made a written "Application for Approval to Change Shore Line
[VOLUME 3, PAGE 6]
or Bed of a Public Lakes"
as anticipated by IC 13-2-11.1. The application sought approval for a boat well
to facilitate a boat landing to solid ground and indicated that dredging would
be required to effectuate that purpose.
16.
After making the October 31, 1983 application, the McClues
submitted plans for a boat ramp in lieu of a boat well. During the hearing, the
McClues amended the Application to reflect the
change. For the purpose of these Findings of Fact, the application seeks a boat
ramp and not a boat well.
[Finding
17 was deleted by the Natural Resources Commission under the same terms as
applied with respect to Finding 13.]
18.
The boat ramp anticipated by the amended application proposes an excavation
which is twenty-six feet wide, which extends two feet below the shoreline
elevation of Snow Lake and which terminates 30 feet lakeward
of the shoreline.
19.
The proposed ramp is located at the northeastern end of the McClue
property shoreline along Snow Lake, including a description of the proposed
boat ramp.
20.
The project anticipated by the amended application involves dredging at the
same location as is set forth in the original application of October 31, 1983. Dredging
is needed for the construction of a boat ramp just as dredging is needed for
the construction of a boat well.
21.
A wetland is real property that has, at least intermittently, water-saturated
soils.
22.
A wetland is a natural resource.
23.
Jurisdiction of the Department under IC 13-2-11.1 is limited to those wetlands
located within the shoreline of a public freshwater lake.
24.
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.
25.
Immediately contiguous to the shoreline of the McClue
property is a floating mat, beneath which are the waters of Snow Lake.
26.
The floating mat consists of hydrophilic plants, primarily cattails and sedges,
which over many years have formed a self-supporting and buoyant mass of
intertwined strands.
27.
The floating mat is a wetland covering at least 1½ acres, and possibly covering as much as 5
acres, located along the lakeward side of the McClue property and extending south of the McClue property (hereinafter the subject wetland).
28.
To the lakeward side of the subject wetland is the
open water of Snow Lake.
29.
An irregular line is formed by the transition between the subject wetland and the
open water of Snow Lake. That irregular line forms what casual observation
suggests is the shoreline of Snow Lake, but is a false or pseudo-shoreline
(hereinafter the pseudo-shoreline).
30.
The pseudo-shoreline along the McClue property is
identified on Exhibit Alpha [not depicted] with a dashed line accompanied by
the phrase "Legal Lake Level = 964.96."
31.
The true or genuine shoreline (hereinafter the shoreline) is located along the
landward side of the subject wetland.
32.
The shoreline along the McClue property is identified
on Exhibit Alpha [not depicted] with a dashed squiggled line accompanied on the
landward side by the word "grass" and on the lakeward
side by the phrase "wetland vegetation."
33.
The jurisdiction of the Department under IC 13-2-11.1 begins at the shoreline
[as identified in Findings of Fact 25 and 26] and extends lakeward
from the shoreline.
34.
The subject wetland is located lakeward from the
shoreline and lies within the jurisdiction of the Department under IC
13-2-11.1.
35. The
subject wetland is one of two wetlands located within Snow Lake, and the
subject wetland is important to the continued integrity of Snow Lake in terms
of water clarity and in terms of fish and wildlife.
36.
Other wetland resources formerly existing within Snow Lake have been destroyed
through residential or commercial development or properties adjacent to Snow
Lake. The subject wetland formerly extended east of the McClue
property, but has there been eliminated by the activities of an adjacent
landowner.
37.
The McClue shoreline extends for at least 1,028 feet.
38.
The McClue property has been owned by the McClue family since at least 1920. Preservation of the
subject wetland adjacent to the McClue property has
been largely due to the conservation efforts of Wayne McClue
or to the McClues' abstinence from development at that
location.
39.
Wayne McClue is in poor health. In the absence of the
proposed boat ramp, he is effectively denied access from the McClue property to Snow Lake.
40.
The Department and the people of the State of Indiana have a legitimate
interest in the preservation of the subject wetland.
41.
The proposed boat ramp would destroy approximately .024 acres of the subject wetland.
If the wetland encompasses 1½ acres [see Findings of Fact 27], about
1.6% of the wetland would be destroyed by the proposed boat ramp.
42.
The damage to the subject wetland resulting from the proposed boat ramp is
within acceptable limits, provided that construction
[VOLUME 3, PAGE 7]
Techniques
are applied to minimize damage to the area surrounding the boat ramp and
provided that the remainder of the subject wetland adjacent to the McClue property Is preserved.
43.
The McClues' shoreline contiguous to the subject
wetland should be described with reasonable particularity. The permit should
included, as a condition of acceptance, that there be no future change of the
shoreline or alteration of the bed of Snow Lake adjacent to the McClue property, except upon mutual consent of the
Department and the owner of the McClue property. The
permit should indicate that its terms constitute a continuing restriction on
the use of the McClue property, and the permit should
be recorded with the