Dennis B. Maloney's request to modify the conditions placed on Permit No. PL-13,640 is denied.
FINDINGS OF FACT
1. On June 4, 1990, Dennis B. Maloney (the "Claimant") was issued Permit No. PL-13,640 which gave approval for the construction of a concrete seawall on Simonton Lake.
2. On July 9, 1990, the Claimant filed an appeal of the configuration of the seawall as specified in the permit.
3. IC 4-21.5, IC 13-2-11.1 and 310 IAC 0.6 apply to this proceeding.
4. The Natural Resources Commission is an agency as defined in IC 4-21.5-1-3 and is the Ultimate Authority for this proceeding.
5. The permit requires the Claimant to build his seawall approximately along the legal shoreline.
6. The legal shoreline is established by determining where the shoreline would be if the water in the lake is at its court established legal elevation.
7. The Claimant does not challenge the placement of the legal shoreline.
8. Because of the legal shoreline location, the permit requires the Claimant to build his seawall in three segments (See Exhibit A).
9. The Claimant wishes to build his seawall in one straight segment (See dotted line on Exhibit A).
10. By building the seawall straight, the Claimant would cut-off and fill several hundred square feet of a public freshwater lake.
11. Permits to alter the shoreline of a public freshwater lake are regulated by IC 13-2-11.1 (the "Statute").
12. The Statute does contemplate permits that would allow an area to be filled in (See IC 13-2-11.1-3(a)).
13. The Claimant wishes authority to fill in because it would be costly and inconvenient for him to build the seawall as specified in the permit.
14. The Claimant does not claim any general benefit to the public will accure if he is allowed to build his seawall straight.
15. The Department's stated policy is that filling in a public freshwater lake is only allowed if it creates an interest for the public such as a pier or other recreational enhancement.
16. The Department maintains that the Statute charges it with the duty to protect the public interest in regard to public freshwater lakes.
17. The Department has correctly defined its duty in this area. IC 13-2-11.1-2 specifies a broad public right to the waters of a public freshwater lake and indicates to the Department that it would take very special circumstances to make the issuance of the type of permit the Claimant requests here, permissible.
18. It is reasonable to conclude that these special circumstances do not include inconvenience or additional expense (although the Claimant did not show any additional expense at hearing).
19. The Claimant, having shown no special circumstances, is not entitled to a permit which would allow him to appropriate and fill in a portion of Simonton Lake.