CADDNAR


[CITE: Steuben County Lakes Council v. DNR and Hoeppner, 5 CADDNAR 171 (1990)]

 

[VOLUME 5, PAGE 171]

 

Cause #: 90-105W

Caption: Steuben County Lakes Council v. DNR and Hoeppner
Administrative Law Judge: Lucas
Attorneys: Mull; McInerny, DAG; Hoeppner
Date: November 13, 1990

ORDER

 

Final summary judgment is granted in favor of the Department of Natural Resources and against the Steuben County Lakes Council and the Lake James Cottage Owners' Association as set forth in the Findings of Fact. The initial determination by the Department of Natural Resources to issue permit DR-200 to Gilbert Hoeppner is, with all of its conditions and terms, now affirmed.

FINDINGS OF FACT

 

1. On March 22, 1990, the department of natural resources (the "Department") provided notice by mail to Gilbert Hoeppner ("Hoeppner") of the initial determination to issue permit number DR-200 (the "Permit").

 

2. The Permit was issued under IC 13-2-15 to reconstruct an "existing channel to Lake James near Angola" in Steuben County, Indiana.

 

3. Lake James is located approximately three miles north-northwest of Angola and has a surface area of 1,140 acres and a maximum depth of 86 feet. Approximately 80% of the shoreline of Lake James is developed.

 

4. The Permit authorizes Hoeppner to clear a channel through a wetland located between Steuben County Road 200 West and Steuben County Road 225 West. The Permit is conditioned to provide that:

 

(A) the channel shall be constructed with a maximum top width of 20 feet, a maximum depth of four feet, and side slopes of a two-to-one ratio or flatter;

(B) a silt screen or sediment trap be installed at the downstream end of the project (upstream of Steuben County Road 200 West) prior to beginning any dredging activities;

(C) dredging activities start at the upstream end of the project and work downstream to fully utilize the filtering effects of the wetlands;

(D) all excavated material shall be placed such that it cannot enter the waters of Lake James, and the spoil should not be placed within any wetland areas; and

(E) all ditch side slopes and other disturbed areas be revegetated as soon as possible after construction with a suitable mixture of grasses and legumes.

 

5. The channel to be reconstructed would cause excavations to occur below the legal level of Lake James and within one-half (1/2) mile of the lake.

 

6. The channel project under the Permit is separated from Lake James by a 24-inch culvert which is three to four inches above the lake's legal level. "The waters of Lake James at its legal level cannot extend through the culvert." (Affidavit of George C. Bowman, Professional Engineer.]

 

7. The division of fish and wildlife has reported that the project would pass through a wetland which, although "small, so is the watershed above it. Water is being filtered as it passes through this wetland.. The importance of this filtering wetland [to Lake James] will increase in the future." [Reconstruct an Existing Channel to Lake James near Angola," Application No. DR-200, Advisory Council for water and Mineral Resources, Meeting of March 21, 1990.]

 

8. IC 13-2-15-1(a) provides that:

 

(a) A person may not:

(1) locate, make, dig, dredge, construct, reconstruct, repair, or reclean; or

(2) order or recommend the location, establishment, construction, reconstruction, repair, or recleaning of; any ditch or drain having a bottom depth lower than the normal water level of a fresh water lake of ten (10) or more and within one-half (1/2) mile of the lake without a permit from the department of natural resources.

 

9. Lake James is a "fresh water lake" as provided in IC 13-2-15-1(a). The reconstruction sought by Hoeppner is within a ditch or drain located within one-half (1/2) mile of Lake James. IC 13-2-15 applies to the project; and Hoeppner is required to obtain a permit under IC 13-2-15.

 

10. IC 13-2-15-1(b) provides in pertinent part, that following a permit application, "the [D]epartment shall promptly consider the request by making an investigation of the lands, waters, and lakes which may be affected by the

 

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proposed work and if the [D]epartment finds that the proposed work will not endanger the water level of any lake as established by law..., the [D]epartment shall promptly grant the request and issue a permit to the person requesting the same.

 

11. The claimants, Steuben County Lakes Council and Lake James Cottage Owners' Association, do not contest the propriety of the issuance of the Permit under IC 13-2-1(b).

 

12. Instead, the claimants contend that the channel project for which the Permit was issued should also be scrutinized under the permitting authority of IC 13-2-11.1 and IC 13-1-10.

 

13. With respect to IC 13-2-11.1, the claimants urge that no genuine issue of material fact exists, and the claimants are entitled to summary judgment "in the following legal issues: 1) Whether dredging to a depth of four feet below the level of Lake James brings the subject of Permit No. DR-200 within the jurisdiction of IC 13-2-11.1; 2) Whether cumulative losses to wetlands near Lake James, but outside the boundaries of the lake, brings the subject of Permit No. DR-200 within the jurisdiction of IC 13-2-11.1 ..."

 

14. IC 13-2-11.1 is a regulatory chapter designed to preserve and protect any "public freshwater lake" in Indiana. A public freshwater lake includes most lakes that have been "used by the public with the acquiescence of a riparian owner." (IC 13-2-11.1 and IC 13-2-11.1-2].

 

15. Lake James is a "public freshwater lake" under IC 13-2-11.1-1.

 

16. Lake James is subject to regulation under IC 13-2-11.1.

 

17. Several sections of IC 13-2-11.1 require a permit before a person can lawfully engage in a construction or development activity in or adjacent to a public freshwater lake. These sections apply to Lake James.

 

18. A permit is required under IC 13-2-11.1-3(a) before a person can lawfully change the level of-the water or the shoreline of Lake James "by excavating, filling in, or otherwise causing a change in the area or depth or affecting the natural resources, scenic beauty, or contour of the lake below the waterline or shoreline." As used in IC 13-2-11.1, the "waterline or shoreline" means the line formed on the bank or shore of Lake James by the water surface at the legally established average normal level.

 

19. The channel project anticipated in the Permit will not change the level of the water of Lake James. ["Report of Status Conference", page 1, second paragraph, entered November 8, 1990.]

 

20. The channel project anticipated in the Permit will not change the shoreline of Lake James.

 

21. A permit is not required I under IC 13-2-11.1-3(a).

 

22. A general prohibition is placed in IC 13-2-11.13(b) upon the construction or reconstruction of a ditch, dam, or similar project which "is likely to affect, a lowering of the water level of any public freshwater lake that covers an area of ten (10) acres or more."

 

23. The prohibition contained in IC 13-2-11.1-3(b) applies to construction or reconstruction activities likely to affect a lowering of the level of Lake James. However, the channel project anticipated by the permit will not result in a lowering of the level of Lake James. IC 13-2-11.1-3(b) does not apply to the channel project.

 

24. A permit is required under IC 13-2-11.1-5 before an abutting landowner "may issue a permit to change the shoreline or alter the bed of" Lake James. The channel project would not change the shoreline or alter the bed of Lake James. A permit is not required under IC 13-2-11.1-5.

 

25. Special notice requirements apply to a permit to change the level or dredge a public freshwater lake under IC 13-2-11.1-6. The channel project does neither. A permit is not required under IC 13-2-11.1-6.

 

26. As provided in IC 13-2-11.1-7, the Department "may not issue a permit for the construction of a channel into a public freshwater lake unless the channel follows the path of a stream already in existence or unless the applicant proves that fifty-one percent (51%) of the property owners abutting the shoreline of the lake approve of the channel construction." An exception from this special permitting requirement is recognized for "small private drainage channels."

 

27. The channel project anticipated in the Permit does not result in "the construction of a channel into" Lake James or another public freshwater lake. See Finding 6. A permit is not required under IC 13-2-11.1-7.

 

28. Jurisdiction for regulation by the Department is not conferred by IC 13-2-11.1-3(b) for every dredging activity of a stream or channel outside the boundaries of a public freshwater lake. IC 13-2-11.1-3(b) does prohibit any construction or reconstruction project which will affect, or is likely to affect, a lowering of the water level of a public freshwater lake which covers an area of ten acres. A crucial element of this prohibition is causation, and that causation is lacking with respect to the

 

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channel project in the Permit. The level of Lake James will not be affected by the proposed channel project.

 

29. The Department is entitled to a summary judgment in its favor and against the claimants as to whether dredging the channel below the legal level of Lake James confers jurisdiction under IC 13-2-11.1. There is no genuine issue of fact as to whether the reconstruction project anticipated in the Permit "will affect, or is likely to affect, the lowering of the water level of" Lake James. There is no evidence the project will affect, or is likely to affect, the lowering of Lake James.

 

30. No reference is contained within IC 13-2-11.1 to "wetlands." Broad jurisdiction is accorded to the Department to regulate a public freshwater lake for the protection of its natural resources and scenic beauty, but the physical limit of that jurisdiction is not referenced by the existence of wetlands. The Indiana General Assembly has not conferred upon the Department regulatory jurisdiction over wetlands, generally; and neither does the presence of a public freshwater lake "near" a wetlands area confer authority under IC 13-2-11.1. However meritorious the concept may be that wetlands should be regulated to preserve natural lakes and other valuable resources dependent upon those wetlands, the determination to do so must rest with the legislature.

 

31. The Department is entitled to a summary judgment in its favor and against the claimants as to whether cumulative losses to wetlands near Lake James, but outside the boundaries of the lake, brings the subject of the Permit within the jurisdiction of IC 13-2-11.1. Jurisdiction under IC 13-2-11.1 is not dependent upon the presence or absence of wetlands; and wetlands do not in themselves confer jurisdiction under IC 13-2-11.1.

 

32. IC 13-1-10 is a policy statement by the Indiana General Assembly which seeks to "encourage productive and enjoyable harmony between man and his environment." In addition, the chapter provides for the preparation of an environmental impact statement under some circumstances, but under IC 13-1-10-6 that requirement does not apply to the issuance of a permit by a state agency.

 

33. The Steuben County Lakes Council argues that IC 13-1-10-4 confers authority upon the Department to adopt a rule which would provide protection to wetlands and to the water quality of public freshwater lakes. The Department has not, however, adopted or attempted to adopt a rule under the authority of IC 13-1-10-4. No justiciable controversy is presented by the Steuben County Lakes Council by this argument.

 

34. The Steuben County Lakes Council presents no authority for the proposition that IC 13-1-10 now confers independent regulatory authority of any kind upon the Department.

 

35. Summary judgment must be granted in favor of the Department and against the claimants as to whether IC 13-1-10 has any regulatory consequence with respect to the presence of wetlands near Lake James. No independent regulatory authority is now provided by IC 13-1-10 with respect to the project anticipated by the Permit; and IC 13-1-10 does not modify the regulatory structure of IC 13-2-11.1 or IC 13-2-15.

 

36. No genuine issue exists as to any material fact. The Department is entitled to summary judgment as a matter of law against the Steuben County Lakes Council and the Lake James Cottage Owners' Association.