11-170w.v13.htm

[CITE: Fultz & Trenmoth v. DNR, 13 CADDNAR 46 (2012)]

[VOLUME 13, PAGE 46]

Cause #: 11-170W (11-169W)

Caption: Fultz & Trenmoth v. DNR

Administrative Law Judge: Lucas

Attorneys: pro se (Fultz); Wyndham (DNR)

Date: May 17, 2012

FINAL ORDER

The applications by David Trenmoth and by Donald Woebbeking to place fills for the placement of underwater beaches were properly denied by the Department of Natural Resources. Their applications were for sites in the same significant wetland, and the Department of Natural Resources is prohibited by 312 IAC § 11-4-4(c)(1) from issuing a permit to place fill for an underwater beach in a significant wetland. The denials of applications identified by the Department’s Division of Water as PL-21786 and PL-21787 are both affirmed.

FINDINGS OF FACT AND CONCLUSIONS OF LAW

A. Statement of Case and Jurisdiction

1. On September 23, 2011, Tim Fultz (“Fultz”) filed correspondence with the Natural Resources Commission (the “Commission”) in which Fultz sought administrative review of the denial by the Department of Natural Resources (the “DNR”) of two permits under Ind. Code § 14-26-2 (sometimes referred to as the “Lakes Preservation Act”) and 312 Ind. Admin. Code § 11. The DNR is the agency responsible for permitting under the Lakes Preservation Act and 312 IAC § 11. The Division of Water coordinates DNR’s permitting functions for the Lakes Preservation Act and 312 IAC § 11.

2. David W. Trenmoth (“Trenmoth”) applied for what the DNR’s Division of Water designated as PL-21786 (the “Trenmoth application”). Donald W. Woebbeking (“Woebbeking”) applied for what the DNR’s Division of Water designated as PL-21787 (the “Woebbeking application”). The Trenmoth application and the Woebbeking application are referred to collectively as the “subject applications”.

3. Fultz is the contractor and agent for Trenmoth and Woebbeking in pursuit of both of the subject permits.[1] The Trenmoth application sought DNR approval for the placement of a 40-feet-by-15-feet underwater beach within the extended boundaries of Trenmoth’s 95 feet of shoreline along Big Turkey Lake in Steuben County, Indiana. The Woebbeking application sought DNR approval for the placement of a 40-feet-by-15 feet underwater beach within the extended boundaries of Woebbeking’s 105 feet of shoreline along Big Turkey Lake. The street address for Trenmoth’s property is 440 Lane 220, Big Turkey Lake, Hudson, Indiana. The street address for Woebbeking’s property is 420 Lane 220, Big Turkey Lake, Hudson, Indiana. The subject applications apply to adjacent lots. The underwater beaches sought in the subject applications would each consist of a layer of pea gravel placed on the lakebed that would not exceed six inches thick. Respondent’s Exhibit A, p. 38; and, Respondent’s Exhibit B, p. 35.

4. The DNR’s stated reasons for denials of the subject permits were identical:

(1) the site is located along a natural shoreline as defined in 312 IAC 11-2-14.5; pursuant to 312 IAC 11-4-4(c) the director or delegate shall not issue a license for the placement of an underwater beach along a natural shoreline

(2) the site is located in a significant wetland as defined in 312 IAC 11-2-24; pursuant to 312 IAC 11-4-4(c) the director or delegate shall not issue a license for the placement of an underwater beach in a significant wetland

Respondent’s Exhibit A, p. 25; and, Respondent’s Exhibit B, p. 22.

5. The Commission appointed Stephen Lucas administrative law judge to conduct a proceeding to consider Fultz’s petition for administrative review under IC 4-21.5 (sometimes referred to as the “Administrative Orders and Procedures Act” or “AOPA”) and 312 IAC § 3-1.

6. The Commission is the “ultimate authority” for proceedings under AOPA pertaining to the Lakes Preservation Act. IC § 14-10-2-3 and Lukis v. Ray, 888 N.E.2d 325 (Ind. App. 2008).

7. On September 26, 2011, Administrative Cause Number 11-169W was designated for administrative review of the denial of Trenmoth application and Administrative Cause Number 11-170W for administrative review of the denial of the Woebbeking application. A separate “Notice of Prehearing Conference” was issued for the two proceedings, and they were scheduled for consecutive time periods on October 28, 2011. On October 28, Fultz and the DNR agreed to conduct subsequent actions in Administrative Cause Numbers 11-169W and 11-170W jointly, including any hearing, although the two proceedings were not formally consolidated.

8. Big Turkey Lake in Steuben County is a “public freshwater lake” as defined by IC § 14-26-2-3 and 312 § IAC 11-2-17. Szpara v. Perez, 12 Caddnar 291 (2011) and Patterson, et al. v. Wildwood Property Owners Assoc., and DNR, 10 Caddnar 417 (2005). See, also, “Listing of Public Freshwater Lakes”, Natural Resources Commission, Information Bulletin #61 (Second Amendment), 20110601-IR-312110313NRA (June 1, 2011), p. 7. Big Turkey Lake is subject to regulation under the Lakes Preservation Act and 312 IAC § 11.

9. The Commission has jurisdiction over the subject matter and over the persons of the parties.

10. A hearing of the facts was commenced as scheduled and completed on March 30, 2012. The proceedings are ripe for disposition.

B. Burden of Proof by a Preponderance of the Evidence

11. AOPA provides at IC § 4-21.5-3-14(c) in pertinent part that “[a]t each stage of the proceeding, the agency or other person requesting that an agency take action…has the burden of persuasion and the burden of going forward with the proof of the request….” The burden of persuasion and the burden of going forward are sometimes collectively referred to as the “burden of proof”.

12. A person seeking a permit under the Lakes Preservation Act has the burden of proof for entitlement to the permit. Peterson & Fultz v. DNR, 13 Caddnar 16 (2012) and, generally, Ind. DNR and NRC v. Krantz Bros. Const., 581 N.E.2d 935 (Ind. App. 1991).

13. Findings under AOPA must be based upon evidence that is “substantial and reliable”. IC § 4-21.5-3-27(d) and Citizens Action Coalition of Ind. v. N. Ind. Pub. Serv. Co., 796 N.E.2d 1264 (Ind. App. 2003). The standard of review under AOPA is ordinarily “preponderance of the evidence”. Indiana Dept. of Natural Resources v. United Refuge Company, Inc., 615 N.E.2d 100 (Ind. 1993).

14. “Preponderance of the evidence” refers to evidence which, when considered and compared with that opposed to it, has more convincing force, and which produces in the mind of the trier of fact, a belief that what is sought is more likely true than not. Bivens v. State, 642 N.E.2d 928 (Ind. 1994). The trier of fact must be convinced from a consideration of all evidence that the issue for which a party has the burden is more probably true than not true. Ken Schaefer Auto Auction v. Trustison, 198 N.E.2d 873 (Ind. App. 1964).

15. Fultz has the burden of proof, by a preponderance of the evidence, to demonstrate the DNR erred when it denied the applications for the subject permits.

C. Prohibition on Placement of an Underwater Beach in a Significant Wetland

16. By rule, the Commission adopted a three-tiered regulatory approach for permitting the placement of fill for underwater beaches in public freshwater lakes. 312 IAC § 11-4-4 provides:

Sec. 4. (a) A written license under IC 14-26-2 and this rule is required to place material for an underwater beach within a public freshwater lake.

(b) The director or a delegate shall not issue a license for the placement of:

(1) filter cloth; or

(2) an impermeable material;

beneath or in an underwater beach.

(1) in a significant wetland; or

(2) along a natural shoreline.

(d) To qualify for a license to place an underwater beach in an area of special concern, the underwater beach must:

(1) not exceed six hundred twenty-five (625) square feet;

(2) not extend:

(A) more than thirty (30) feet lakeward of the shoreline or water line; or

(B) to a depth of six (6) feet;

whichever occurs earlier;

(3) be placed on not more than one-half (½) the length of the shoreline or water line of the riparian owner;

(4) be comprised of clean, nontoxic pea gravel;

(5) not exceed six (6) inches in thickness; and

(6) be thin enough or tapered so the shoreline or water line will not be extended lakeward.

(e) To qualify for a license to place an underwater beach in a developed area, the underwater beach must:

(1) be comprised of clean, nontoxic pea gravel;

(2) not exceed six (6) inches in thickness;

(3) be placed on not more than one-half (½) the length of the shoreline or water line of the riparian owner;

(4) extend not:

(A) more than fifty (50) feet lakeward from the shoreline or water line; or

(B) beyond a depth of six (6) feet;

whichever occurs earlier; and

(5) be thin enough or tapered so the shoreline or water line will not be extended lakeward.

(f) If beach material has been placed previously under this section, the additional material must not:

(1) extend beyond the limits of the previous beach material; and

(2) exceed the size restrictions specified in subsections (d) and (e).

(g) Erosion from disturbed areas landward of the shoreline or water line must be controlled to prevent its transport into the lake.

[VOLUME 13, PAGE 47]

17. Most pristine are a “natural shoreline” and a “significant wetland”. In both of these areas, new underwater beaches are prohibited. An “area of special concern” has an intermediate sensitivity, and here fill may be placed for an underwater beach within protective conditions. A “developed area” has the greatest human disruption, and in a developed area the geographic scope of an underwater beach may be larger than in an area of special concern. The Commission has determined the three-tiered approach for the permitting of fills for underwater beaches is consistent with the Lakes Preservation Act and IC § 14-26-2-5. Peterson & Fultz v. DNR, 13 Caddnar 16 (2012) and Majewski v. DNR, 12 Caddnar 299, 303 (2011).

18. The Commission approved a similar three-tiered approach for new seawall construction. This “regulatory approach seeks to preserve and protect public freshwater lakes for the enjoyment of all the public. Portions of shorelines exhibiting ‘natural scenic beauty’, and which are least affected by manmade additions or alterations, are accorded greater protections than those more disrupted. The approach is consistent with the purposes of the Lakes Preservation Act and particularly IC 14-26-2-5.” Patton and Sedgwick v. DNR, 12 Caddnar 20, 23 (2009).

19. With the adoption of 312 IAC § 11-4-4, the Commission made a policy determination the placement of pea gravel for an underwater beach is likely to have more than a minimal potential for harm. But within other than the most sensitive environmental areas (significant wetlands and unaltered shorelines, where the DNR director is prohibited from approving fill for an underwater beach by 312 IAC § 11-4-4(c)), permitting is authorized to support the recreational enjoyment of riparian owners. Peterson & Fultz cited previously.

20. For this proceeding, the DNR urges the DNR director is prohibited from approving fill for an underwater beach because the subject applications seek to place the fill in areas that are a “significant wetland” and adjacent to a “natural shoreline”. The rule is written in the disjunctive. If a site is either a “significant wetland” or a “natural shoreline”, fill cannot be approved for an underwater beach. 312 IAC § 11-4-4(c) provides:

(1) in a significant wetland; or

(2) along a natural shoreline.

21. As described infra, the findings and conclusions here are that the subject applications seek to place fills within the same “significant wetland”. A determination of whether the sites are also located along a “natural shoreline” is made unnecessary. Whether a “natural shoreline” exists in the areas where the subject permits are sought is not further considered.

22. For purposes of implementing the Lakes Preservation Act, “significant wetland” is defined at 312 IAC § 11-2-25:

Sec. 24. “Significant wetland” means a transitional area between terrestrial and deep-water habitats containing at least one (1) of the following:

(1) At least two thousand five hundred (2,500) square feet of contiguous, emergent vegetation or rooted vegetation with floating leaves landward or lakeward of the shoreline or water line. The areal extent of the vegetation is independent of ownership.

(2) Adjacent wetland areas designated by a federal or state agency under one (1) of the following:

(A) National Wetlands Inventory.

(B) U.S. Army Corps of Engineers Wetlands Delineation Manual (1987).

(3) The existence of a species listed at 15 IR 1312 in the Roster of Indiana Animals and Plants that are Extirpated, Endangered, Threatened, or Rare.

23. The DNR does not assert that either subdivision (2) or subdivision (3) of the definition apply to these proceedings. The agency relies upon 312 IAC § 11-2-2.5(1). As applied to the subject applications, “significant wetland” refers to “a transitional area between terrestrial and deep-water habitats containing at least…two thousand five hundred (2,500) square feet of contiguous, emergent vegetation or rooted vegetation with floating leaves landward or lakeward of the shoreline or water line. The areal extent of the vegetation is independent of ownership.”

D. Hearing of the Facts

24. Three witnesses testified at hearing concerning whether significant wetlands were present for the sites where the subject permits are sought.

25. Tim Fultz is the consultant for Trenmoth and Woebbeking. He testified to a belief that Woebbeking fronts not on the historic shoreline of Big Turkey Lake but rather on a channel that was expanded from a natural stream inlet sometime between 1964 and 1974. He testified his understanding is a significant wetland cannot be located within a manmade channel. “That obsoletes the wetland part.”[2]

26. On cross-examination, Fultz testified wetlands are located in the channel. “There is quite a lot of vegetation in the channel.” Off-shore from Trenmoth’s property and Woebbeking’s property, “you’ve got about enough room for two boats to pass each other, and there is a very large bed of lily pads, but they’re not where we’re working. They’re several feet away.” The corridor where boats can pass was dredged pursuant to a permit issued by DNR to JF New and Associates in 2004.[3]

27. Brad Baldwin studied environmental science and management and has a Bachelor of Science degree in public affairs. In college, he completed courses in wetlands regulation. He also completed training courses through the U.S. Army Corps of Engineers in wetlands determinations and vegetation.

28. Baldwin is currently an employee in the Technical Services Section of DNR’s Division of Water. He is an “environmental manager”, and within the duties of an environmental manager are lake inspections to review proposed projects under the Lakes Preservation Act. He previously held the position from 2005 to 2007 when he left to work in a similar capacity for the Indiana Department of Environmental Management. Baldwin returned to the DNR in May 2011. At DNR and IDEM, he has performed at least 150 shoreline and wetlands determinations.

29. Baldwin identified emergent vegetation in the vicinity on photographs in the packets for the subject applications and during an onsite inspection he performed on June 13, 2011. Some vegetation was identified near the shoreline where the subject applications seek to place fill for underwater beaches. Another “larger wetland complex” is located lakeward and distinct from the near-shore vegetation. “There was emergent vegetation throughout this reach of shoreline” that includes the areas where the subject applications seek to authorize the placement of fill. He characterized emergent vegetation near the shoreline of Woebbeking’s property as having been “sparse” in June.

30. Baldwin testified that at the time of his inspection in June 2011, he identified a wetland lakeward of the navigation channel that would qualify as a “significant wetland” under 312 IAC § 11-2-25. But when he performed the inspection, he was unable to document whether the wetland shoreward of the navigation channel included the minimum 2,500 square feet of emergent vegetation needed to satisfy the rule.

31. On cross-examination, Baldwin testified his opinion was that to meet the conditions described in 312 IAC § 11-2-25(1), emergent vegetation must be “adjacent” to where an underwater beach would be placed, and that there must be a “continuous connection” to other emergent vegetation. Because the larger wetland complex was separated by the navigation channel from where the subject permits would be effective, he concluded the larger wetland complex should not be included as part of a continuous connection. At the time of his inspection in June 2011, Baldwin did not identify a “significant wetland” at the sites of the subject applications. He agreed the channel adjacent to the Woebbeking property was not strictly manmade. It was, as Fultz testified, an enhanced or widened stream inlet.

32. Since 2007, Jon Eggen has served as Head of the Compliance and Enforcement Section of DNR’s Division of Water. He has a BS in biology from North Dakota State University. Eggen completed training in the identification of wetland plants. He also conducted graduate studies at the University of Kansas in aquatic ecology. These included plant physiology and plant identification.

33. On September 9, 2011, Eggen made a site inspection at Big Turkey Lake that included the shoreline and waters adjacent to the Trenmoth property and the Woebbeking property. The inspection was initiated to evaluate construction activities, which are not at issue in these proceedings, to determine the existence of potential violations of the Lakes Preservation Act that had come to DNR’s attention. But while at the site, Eggen also performed inspections and made calculations pertaining to the subject applications.

34. Eggen viewed the control structure at the outlet for Big Turkey Lake. The top of the dam is set at the legally established level for Big Turkey Lake. He measured the water level at the dam to be 3.24 inches above the dam. On September 9, the surface water of Big Turkey Lake was 3.24 inches above the legally established level.

35. Eggen testified at the time of his September 9, 2011 inspection, emergent vegetation was “continuous along the entire shoreline” that included the waters adjacent to the Trenmoth property and to the Woebbeking property. The areal extent of continuous, emergent vegetation “was way in excess of twenty-five hundred square feet. I measured that. I stopped measuring, and it was way more than that.”

36. Eggen testified the spring of 2011 was cool, and vegetation would not have reached full growth when Baldwin conducted his inspection in June. In September 2011, “there was a lot more vegetation present during my inspection. My inspection basically showed the entire site to be ‘significant wetland’, along the entire shoreline of the stream inlet and the lake. And that’s without looking at the beds across the [navigation] channel.” Eggen said he did not consider the “giant beds that are out in the main body of the lake” in determining a “significant wetland” existed along the Trenmoth property and the Woebbeking property. “I only considered the stuff right along the shoreline along the entire channel. It was significant wetland along the entire channel. The vegetation is a little thinner in the two areas where [Trenmoth and Woebbeking] want their [underwater] beaches, but there was still some vegetation there, and adjacent on both sides.”

E. Conclusions Based on the Evidence

37. Fultz, Baldwin, and Eggen all provided forthright and credible testimonies. As they pertain to the existence of emergent vegetation, at the sites of the subject applications, the relevant facts are not seriously disputed.

[VOLUME 13, PAGE 48]

38. Fultz did not question the existence of “quite a lot of vegetation in the channel” adjacent to the Woebbeking property. He offered little or no testimony specific to the presence of vegetation adjacent to the Trenmoth property. But neither did he testify to a discernable difference in emergent vegetation between the Woebbeking property and the Trenmoth property.

39. Baldwin testified at the time of his spring inspection, emergent vegetation was present. But he was unable to document whether the wetland adjacent to the Woebbeking property and the Trenmoth property included the minimum 2,500 square feet of emergent vegetation needed to satisfy the rule.

40. Eggen gave the most definitive testimony concerning the presence of emergent vegetation that was contiguous and with sufficient area to satisfy the definition of a “significant wetland”. At the time of his September 9, 2011 inspection, emergent vegetation was “continuous along the entire shoreline” that included the waters adjacent to the Trenmoth property and to the Woebbeking property. The areal extent of continuous, emergent vegetation “was way in excess of twenty-five hundred square feet. I measured that. I stopped measuring, and it was way more than that.” He explained the spring of 2011 was cool, and vegetation would not have reached full growth when Baldwin conducted his June inspection. In September 2011, “there was a lot more vegetation present during my inspection. My inspection basically showed the entire site to be ‘significant wetland’, along the entire shoreline of the stream inlet and the lake.”

F. Identification of Significant Wetlands in a Manmade Channel and Measurements

41. Fultz urges a manmade channel of a lake cannot qualify as a “significant wetland”. He, Baldwin, and Eggen agree the channel adjacent to the Woebbeking property was formerly a natural inlet to Big Turkey Lake. Fultz’s suggestion is a legal contention rather than a fact.

42. The shoreline of a public freshwater lake is “any point in which the lake’s water creates a mark on the land.” The Lakes Preservation Act governs construction along an island, to change an island to a peninsula, and within the shoreline whether or not a person performing construction seeks a permit from the DNR. Bowyer v. Department of Natural Resources, 944 N.E.2d 972, 989 (Ind. App. 2011).

43. A manmade channel or cove connected to a public freshwater lake is part of the public freshwater lake where the shoreline forms an uninterrupted close which includes both the main body of the lake and the channel or cove. Shaul v. DNR and Bailey, 13 Caddnar 24 (2012) citing Sims, et al. v. Outlook Cove LLC, et al., 10 Caddnar 258, 266 (2006), affirmed on judicial review by LaPorte Superior Court 4, 46D04-0608-MI-253 (2007).

44. The photographic exhibits suggest, and the parties do not contest, that the channel adjacent to the Woebbeking property is within an uninterrupted close which includes the main body of Big Turkey Lake. The channel is part of Big Turkey Lake for purposes of the Lakes Preservation Act.

45. The Indiana General Assembly could enact a statute or the Commission could adopt a rule to except a channel from requirements otherwise applying under the Lakes Preservation Act to the main body of the lake. Neither the legislature nor the Commission has provided an exception. As a matter of law, emergent vegetation in a channel can qualify as a “significant wetland” under 312 IAC § 11-2-25.

46. Fultz contends a wetland lakeward of a navigation channel, which is substantially devoid of emergent vegetation, cannot be considered in measuring a wetland landward of the navigation channel. He is persuasive. Baldwin offered analyses consistent with Fultz’s contention. Baldwin’s analyses are adopted. To meet the requirements described in 312 IAC § 11-2-25(1), emergent vegetation must be adjacent to where an underwater beach would be placed, and there must be a continuous connection to other emergent vegetation that includes at least 2,500 square feet. If emergent vegetation is separated by a navigation channel or other similar waters that are substantially devoid of vegetation, the separated emergent vegetation cannot be considered in calculating whether a wetland is a “significant wetland” for purposes of the Lakes Preservation Act.

47. In seeking to calculate the area of emergent vegetation relevant to the subjection applications, neither Baldwin nor Eggen considered the larger wetland lakeward of the navigation channel.

48. The dimensions of emergent vegetation are dynamic and dependent upon numerous circumstances, including season and water level. For purposes of the Lakes Preservation Act, complete visual identification is most likely in the summer and least likely in the winter. If a lake is significantly above or below its legally established elevation, the observed dimensions may be unsatisfactory. When Eggen inspected the site in early September, the seasonal timing was appropriate. If the lake elevation had been unusually low in September, an excessively large area of emergent vegetation might have been observed. Because the elevation was three inches above the legally established elevation of Big Turkey Lake, his observation was appropriate and might even have resulted in a somewhat conservative calculation of dimensions. In any event, nothing in the evidence of these proceedings would support a finding that Eggen’s calculations were inaccurate.

G. Affirmation of Denials of Applications for Subject Permits

49. The preponderance of the evidence supports a conclusion that in June 2011, aquatic vegetation was beginning to emerge along the Trenmoth property and along the Woebbeking property. At this time, the vegetation had not yet achieved full growth. By September 9, 2011, the emergent aquatic vegetation had matured. Big Turkey Lake was three inches above its legally established elevation. The season and the elevation were appropriate, perhaps even ideal, for identifying the extent of wetlands. Emergent vegetation was continuous along the entire shoreline that included the waters adjacent to the Trenmoth property and to the Woebbeking property. The areal extent of continuous, emergent vegetation was substantially in excess of the minimum 2,500 square feet required to establish a “significant wetland” under the Lakes Preservation Act and 312 IAC § 11. In determining the areal extent, a larger wetland lakeward of the navigation channel was properly excluded from consideration.

50. As a matter of law, a manmade channel (including one developed to expand a natural inlet) that is within the close of a public freshwater lake is part of the public freshwater lake. The Lakes Preservation Act and 312 IAC § 11 do not except a channel from qualification as a “significant wetland”. 312 IAC § 11-4-4(c)(1) prohibits the DNR director, or an employee delegated by the DNR director, from issuing a license for the placement of fill for an underwater beach in the channel or in the open waters of Big Turkey Lake that are adjacent to the Trenmoth property and to the Woebbeking property.

51. Fultz has not satisfied his burden of proof to demonstrate the DNR erred in denying the subject permits. The denials must properly be affirmed.

[1] Neither Trenmoth nor Woebbeking participated in the proceedings, but they were notified by the administrative law judge of progressive stages. The DNR did not contest the ability of Fultz to pursue administrative review as the contractor and agent for Trenmoth and for Woebbeking.

[2] The court reporter has not been requested to prepare a transcript of the hearing. If a witness is shown as quoted in these Findings, the statement is as nearly verbatim as could be determined by the administrative law judge. In some instances a stutter or verbal misdirection may be omitted. If a transcript is subsequently prepared that indicates different wording, the transcript shall be considered the official record and a quotation here as paraphrasing witness testimony.

[3] To help distinguish it from the natural stream inlet that was expanded into a channel between 1964 and 1974, the result of permitted dredging in the 2004 project is referenced here as the “navigation channel”.