The chapter devoted to public freshwater lakes (IC 13-2-11.1) is interpreted as follows:
(1) A permit is not required for a mechanism which removes purple loosestrife by uprooting the plant from lake sediments, whether the mechanism does not dredge or excavate the lake bed. Purple loosestrife is not a plant which contributes to the natural resources or scenic beauty of a public freshwater lake, but is rather a non-native species which is disruptive of wetland habitats, and is outside the protections intended by IC 13-2-11.1. A permit is not required for the "weed machine" to remove purple loosestrife from public freshwater lakes where the "week machine" is operated in a prudent manner.
(2) A permit is required under IC 13-2-11.1-3(a) for a mechanism which removes aquatic plants (particularly native species) which themselves help establish wetlands, these aquatic plants form key elements to the natural resources and scenic beauty of a public freshwater lake. A permit is required for the "weed machine" to remove aquatic plants other than purple loosestrife from a public freshwater lake.
FINDINGS OF FACT
1. This proceeding is governed by IC 4-21.5 (sometimes called the "administrative orders and procedures act" or the "AOPA") and 310 IAC 0.6-1, a rule adopted to assist in the administrative of the AOPA before the natural resources commission (the "Commission").
2. The parties to this proceeding are Edgar J. DeMunck and Anita M. DeMunck (the "DeMunks") and the department of natural resources of the state of Indiana (the "Department").
3. The Commission has jurisdiction over the parties and over the subject matter of this proceeding.
4. Pursuant to 310 IAC 0.6-1-15, a person may request in writing that the Department interpret a statute or rule, which is administered by the Department, as applied to specific facts. The interpretation is subject to administrative review. John Brown Status for Water Well Replacement Required by a Ground Water Emergency, 6 Caddnar 46 (1992); and Peabody Status of Subsoil Replacement on Nonprime Farmland, 6 Caddnar 8 (1991). This rule section provides for "quasi-declaratory judgment" relief. Scales v. State, 1991 Ind. App., 563 N.E.2d 554, 666.
5. The DeMuncks have requested a quasi-declaratory judgment to the effect that IC 13-2-11.1 does not require a permit for the operation of the "Weed Machine" on a public freshwater lake.
6. The Department has waived any objection to a procedural defect in the request for quasi-declaratory judgment. Letter by Kelly D. Grimmett, legal counsel for the Department, dated January 17, 1992 and attached to "Report of First Prehearing Conference and Notice of Second Prehearing Conference".
7. The "Weed Machine" is a 30-foot long pontoon, colored bright yellow, which is propelled by a paddle wheel and designed to remove purple loosestrife and other plants from a lake. The working mechanism, using hooks which circulate clockwise, "bites into" plants "and presses them through a grate" having individual openings about six inches wide. Direct Examination of Anita DeMunck.
8. The "Weed Machine" floats on the surface of the water and employs a front conveyer and holding conveyer for the disposal of plants which have been harvested. Direct Examination of Edgar DeMunck. A belt is used to move the plants to the holding conveyer. When the holding conveyer is filled, the plants are either removed to a barge or to land adjacent to the lake. Direct Examination of Anita DeMunck.
9. Prototypes of the "Weed Machine" were developed by Edgar DeMunck, who has also developed or invented other machines. The DeMuncks acquired a factory building at West 6A Road in Plymouth, Indiana to manufacture the "Weed Machine". Edgar DeMunck took an early retirement in the hope that the DeMuncks might successfully market the "Weed Machine" in Indiana and throughout the United States. Direct Examinations of Anita DeMunck and Edgar DeMunck.
10. Purple loosestrife (Lythrum salicaria) is a species of plant which is not native to Indiana and which has invaded many state water courses and wetlands causing environmental harm. This aggressive species has a root part which extends into lake sediments and other "net roots" which spread through the water. Testimony of Anita DeMunck and stipulation by the parties entered at hearing.[FOOTNOTE i]
11. Legislation has been enacted in Indiana which provides that a person who sells, offers for sale, gives away, plants, or distributes purple loosestrife commits
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a Class C infraction. An exception is recognized only where a permit is issued by the director of the Purdue University agricultural experiment station. IC 15-3-5.5-2 and IC 15-3-5.5-3. The prohibition is an unmistakable policy expression by the Indiana General Assembly to disfavor purple loosestrife.
12. IC 13-2-11.1 is a regulatory chapter designed to preserve and protect any "public freshwater lake" in Indiana. Steven County Lakes Council v. DNR and Hopper, 5 Caddnar 171 (1990). See also 310 IAC 6-2.
13. A public freshwater lake includes most lakes that have been "used by the public with the acquiescence of a riparian owner." IC 13-2-11.1-1.
14. The natural resources and natural scenic beauty of Indiana are a public right. The public has a vested right in the protection, preservation, and enjoyment of all the public freshwater lakes, as they existed in 1947, and in the use of their waters for recreational purposes. IC 13-2-11.1-2. The state of Indiana, acting through the Department, has full power and control over all public freshwater lakes. Zapffe v. Srbeny, 1992 Ind. App., 587 N.E.2d 177.
15. A written permit is required from the Department before a person "may change the level of the water or the shoreline of a public freshwater lake 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." IC 13-2-11.1-3(a).
16. A written permit is also required from the Department before a person may "change the shoreline or alter the bed of a public freshwater lake." IC 13-2-11.1-5.
17. Although the parties vigorously contest whether a permit is required for the operations of the "Weed Machine" in a public freshwater lake, how the "Weed Machine" functions is not seriously in dispute. The "Weed Machine" does not dredge earthen materials from the bed of a lake but rather removes plants by their roots. "There are sediments on the roots.'' Cross examination of Anita DeMunck. "We're pulling the weeds out and the roots are coming with it." Additional cross examination of Anita DeMunck. Plant roots and "sediment along with the roots" are removed by the operations of the "Weed Machine". Direct examination of Scott McClarney, witness for the Department.
18. In evaluating the operations of the "Weed Machine", the permitting elements of IC 13-2-11.1 must be viewed separately and as independent permitting requirements. Steuben County Lakes Council cited previously.
19. The preponderance of evidence indicates that the removal of sediments during a harvesting of plants by the "Weed Machine" is of minimal consequence. Neither the depth nor the contour of a public freshwater lake below its surface is likely to be appreciably impacted by the prudent operation of the "Weed Machine".
20. A permit is not required under IC 13-2-11.1-3(a) for the operation of the "Weed Machine" because of impacts to the depth or the contour of a public freshwater lake. Those impacts are inconsequential and the evidence does not even disclose that they would be measurable.[FOOTNOTE i]
21. Similarly, a permit is not required under IC 13-2-11.1-5 because the "Weed Machine" will not change the shoreline nor alter the bed of a public freshwater lake in any appreciable fashion.[FOOTNOTE i]
22. Purple loosestrife does not contribute to the natural resources or the natural scenic beauty of a public freshwater lake. The species is non-native and diminishes the environmental values of Indiana waters.
Generally speaking, the removal of purple loosestrife from Indiana waters would serve a beneficial purpose. Removal of purple loosestrife from a public freshwater lake does not, in itself, require a permit under IC 13-2-11.1.
23. Although the design of the "Weed Machine" as stated at hearing was to remove purple loosestrife from public freshwater lakes, there has been no demonstration that its operation could not and would not be applies to other aquatic plant species.
24. Indeed, the DeMunck's handwritten advertisement for the "Weed Machine" expressed a broader purpose. The "Weed Machine" was promoted in the advertisement as being suitable for the harvest of "lilies, purple loosestrife (hardy hack), and reeds.". Stipulated Exhibit I. In addition, the DeMunck's post-hearing arguments speak generally to the application of the "Weed Machine" for the removal of any "lake weed infestation". Trial Memorandum of the DeMuncks, filed November 19, 1992, page 8.
25. Aquatic species other than purple loosestrife do contribute significantly to the natural resources or scenic beauty of a public freshwater lake. Cattails and sedges have, for example, been found by the commission to form wetlands which are vital to the integrity of lakes and which are worthy of regulation under IC 13-2-11.1.
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Wayne McClue, et ux. v. DNR, 3 Caddnar 5 (1986).
26. Use of the "Weed Machine" to remove aquatic plants (particularly native species), which themselves help establish wetlands, is a permitable event under IC 13-2-11.1-3(a). These species form key elements to the natural resources and the scenic beauty of a public freshwater lake.
27. A permit is not required under IC 13-2-11.1 as a consequence of prudent operations of the "Weed Machine" for the harvest and removal of an infestation of purple loosestrife from a public freshwater lake. Prudent operations would include each of the following:
(a) minimizing disturbances of sediments and silts;
(b) removing from the lake all purple loosestrife plants and plant parts which are dislodged in the harvest process; and
(c) refraining from disturbing other wetland plant species.
28. For operations of the "Weed Machine" in public freshwater lakes directed at aquatic plant species other than purple loosestrife, a permit is required under IC 13-211.1-3(a).
FOOTNOTE
i. There are numerous activities in which riparian owners are engaged that cause some disturbance to the bed of a lake but which do not impact the depth or contour so as to constitute a permitable event under IC 13-2-11.1. Among these activities are wading, swimming, and boating. The use of hand tools to place piers and other temporary structures is specifically exempted from permitting requirements. 310 IAC 6-2-14. Removing aquatic plants by their roots falls into this same category of activities.