[CITE: Michael Hackett v. DNR,
1 CADDNAR 20 (1979)]
[VOLUME 1, PAGE 20]
Cause #: 78-022W
Caption: Michael Hackett v.
DNR
Administrative Law Judge: Finkbinder
Attorneys: Diggins; Zlatos,
DAG
Date: March 7, 1979
ORDER
The
Application for Approval to Alter Shoreline or Bed of a Fresh Water Lake is
denied.
FINDINGS OF FACT
1.
IC 13-2-11-2 provides that a permit to alter a shoreline may be granted upon
investigation of the application on its merits.
2. "When
the legislature enacts procedures and time tables which act as a precedent to
exercise some right or remedy, those procedures cannot be circumvented by the
unauthorized acts and statements of officers, agents, or staff of the various
departments of our state government"; (Middleton
Motors v. Department of Revenue (1978) 380 NE2d 79.); therefore, regardless
of the substance or probative value which Mr. Hebenstreit's
alleged statement to Mr. Hackett may or may not have, it should not be
considered in the recommendation of the undersigned.
3.
The legal level of Adams Lake is 953.59 feet MSL....
4.
Mr. Hackett desired to fill lakeward of that level.
The area Mr. Hackett desired to fill is 1,900 square feet, over 75 percent of
which is part of a significant wetlands area.
5.
In terms of size, a significant wetlands area is at least one acre.
6.
The record provides substantive evidence to prove that the classification of an
area as wetlands is not contingent upon the existence of habitat suitable for
fishing or wildlife; rather, it depends upon the existence of emergent
vegetation such as Mr. Eisfelder located on the
subject property and the area's potential to serve and provide wetlands
benefits.