CADDNAR

[CITE: Dafforn et al v. DNR & Steuben Co. Lake Council, 3 CADDNAR 101 (1988)]

 

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Cause #: 85-214R

Caption: Dafforn et al v. DNR & Steuben Co. Lake Council
Administrative Law Judge: Lucas
Attorneys: Smith; Albright, DAG; Mitchell
Date: August 1, 1988

ORDER

 

A permit under IC 13-2-11.1 shall be issued to Derald R. Dafforn and Manapogo Park, Inc. for the removal of earthen materials from Lake Pleasant. The permit shall be issued upon a form provided by the Division of Water, Department of Natural Resources, and shall incorporate each of the terms, conditions and specifications contained in the Findings of Fact. Derald R. Dafforn and Manapogo Park, Inc. are jointly and severally liable for compliance with each term of the permit. The permit is not transferable to another person except upon prior approval of the Natural Resources Commission.


FINDINGS OF FACT

 

1. The department of natural resources (the "Department"") is an "agency" as the term is defined in IC 4-22-1-2.

 

2. The natural resources commission (the "Commission") is the "ultimate authority" under IC 4-22-1-2.2 for the Department with respect to entry of an order under IC 13-2-11.1 and IC 14-3-1-14.5.

 

3. IC 13-2-11.1 is a statutory chapter administered by the Department which governs construction activities on public freshwater lakes.

 

4. IC 14-3-1-14.5 is a statutory section administered by the Department which governs the removal of sand, gravel, stone or another mineral of substance from the bed of any navigable water of the state if Indiana.

 

5. This administrative proceeding was commenced on September 11, 1985 when the claimant, Derald R. Dafforn ("Dafforn") filed his written request for administrative review of an initial determination by the Commission to deny an application dated October 5, 1984 to dredge the lakebed on Lake Pleasant in Steuben County, Indiana.

 

6. Stephen L. Lucas was appointed administrative law judge by the Commission on September 30, 1985 to conduct this administrative proceeding.

 

7. This administrative proceeding was pending on June 30, 1987 (and was not the subject of a remand from judicial review).

 

8. This administrative proceeding is governed by IC 4-22-1 as that statutory chapter existed in June 30, 1987. 1986 Ind. Acts, Law 18, Sec. 3(b).

 

9. On December 18, 1986, the Steuben County Lakes Council, Inc. (The"Council") filed a written motion to intervene in this administrative proceeding. Argument on the motion to intervene was considered during a prehearing conference conducted on February 10, 1987.

 

10. During argument on the motion to intervene, the attorney for the Council represented that the entity included the membership of 65 property owners along Lake Pleasant. One of those members was described as the property owner adjacent to the property for which the permits at issue are sought. The attorney argued that each individual member of the Council had standing to intervene, and the intervention of the Council should be granted to support judicial economy.

 

11. The Department, by its attorney, stated during the prehearing conference that it had no objection to the intervention of the Council.

 

12. Dafforn objected to the intervention of the Council during the prehearing conference on the sole basis that the Council did "not represent the entire body of residents in and around Lake Pleasant."

 

13. The intervention requested by the Council was granted by the administrative law judge during the prehearing conference. That intervention was, however, made contingent upon the Council providing the parties with a resolution to establish who was authorized to receive its service. In addition, the Council was directed to submit evidence at hearing in support of the intervention, since statements were not received under oath during the prehearing conference.

 

14. On March 9, 1987, the Council filed a letter to show its legal status was that of a "not-for-profit corporation (Indiana) "with service of process to be made upon resident agent, William Hill.

 

15. During the hearing conducted on June 10, 1987, the parties stipulated that the Council was properly made a party to the action.

 

16. During a status hearing conducted on June 23, 1988, Dafforn, by his attorney, requested that

 

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Manapogo Park, Inc. be added as an additional claimant in this action and that any permit issued name both Dafforn and Manapogo Park, Inc.

 

17. No prejudice would result to the parties if Manapogo Park, Inc. ("Manapogo") were added as a party Claimant according to the terms set forth in Finding 18. Accordingly, Manapogo is added as a party Claimant subject to the terms set forth in Finding 18.

 

18. Manapogo is bound to the presentation of testimony and documents already received into evidence and to all agreements, stipulations and representations previously made b y Dafforn in this proceeding. Dafforn and Manapogo (collectively the "Claimants") are both responsible for compliance with the terms of the order and permit provided by the Report, Proposed Findings of Fact and Recommended Order ("this document").

 

19. The Commission has jurisdiction over the subject matter and the parties in this administrative proceeding.

 

20. An ample opportunity to interested persons has been accorded for intervention in this administrative proceeding. Correspondence was forwarded to potentially interested persons indicating how they might intervene. An opportunity was specifically presented during a prehearing conference for intervention. A newspaper publication was made in the Angola Herald-Republican on February 25, 1987, a newspaper of general circulation in Steuben County, Indiana, to inform the public how intervention might be accomplished.

 

21. No person other than those named in the caption of this administrative proceeding have sought to intervene.

 

22. The opportunity to intervene in this administrative action should be and is foreclosed with the filing of this document.

 

23. As applied in IC 13-2-11.1, "public freshwater lake" means a lake that has been used by the public with the acquiescence of a riparian owner; however, it does not include Lake Michigan or any lake lying wholly or in part with corporate boundaries of a second class city located in a county having a population of not less than four hundred thousand (400,000) nor more than six hundred fifty thousand (650,000), according to the most recent federal census and it does not include a privately owned body of water used for the purpose of, or created as a result of, surface coal mining.

 

24. Lake Pleasant in Steuben County is a "public freshwater lake" as applied in IC 13-2-11.1.

 

25. The Department is charged with the duty of protecting the public freshwater lakes of Indiana IC 13-2-11.1.

 

26. IC 13-2-11.1-2 provides in pertinent part that:

 

(a) The natural resources and the natural scenic beauty of Indiana are a public right, and the public of Indiana has a vested right in the preservation, protection, and enjoyment of all the public freshwater lakes of Indiana in their present state, and the use of such waters for recreational purposes.

(b) The State has full power and control of all of the public freshwater lakes in Indiana. . .; it holds and controls all of such lakes in trust for the use of all of its citizens for recreational purposes.

(c) No person owning lands bordering a public freshwater lake has the exclusive right to the use of waters of any such lake. . .

 

27. In order to protect a public freshwater lake such as Steuben Lake, IC 13-2-11.1-3(a) further provides in pertinent part that: "No person may change. . .the shoreline of a public freshwater lake by excavating. . .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, without first securing a written permit issued by the department."

 

28. By letter dated February 20, 1987, Dafforn agreed and stipulated that he would seek a permit controlled by the terms of a proposed Consent Decree, as embodied by a "draft copy" of the permit filed by the Department on April 14, 1987 (the "Draft Permit"). [With the entry of the February 20 letter, Dafforn opted not to seek the issuance of a permit which he originally applied and to which the Commission made an initial determination of denial.]

 

29. The scope of the project included within the subject of this administrative proceeding is a non-exclusive permit to remove earthen materials from the bedded of Lake Pleasant from the project location within the northeast quarter (1/4) of the northwest quarter (1/4) of section 13, township 38 north, range 12 east, in Steuben County, Indiana. The project location begins at a point 50 feet lakeward of the shoreline (at the east end of the property), thence extending 400 feet west, thence 100 feet north, thence 200 feet east, thence 100 feet north, thence 200 feet east thence 200 feet south to the point of beginning. These boundaries form an affected surface area of 1.4

 

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acres. The depth of dredging in the compromise project is three (3) feet below the existing lake bed level throughout the compromise project area. Dredging will remove an estimated 6,670 cubic yards of earthen materials.

 

30. The project described in Finding 29 requires that the Claimants secure a permit under IC 13-2-11.1.

 

31. IC 14-3-1-14.5(a) provides that the Department may issue a permit to any person to take sand, gravel, stone or another mineral of substance from or under the bed of any navigable waters of the state.

 

32. The test for determining navigability in Indiana is whether a waterway "was available and susceptible for navigation according to the general rules of river transportation" when Indiana was admitted to statehood in 1816. The standard is not whether a waterway is currently navigable but is whether the waterway has the capacity and susceptibility for use in navigation. State v. Kivett (1950), 228 Ind. 623, 629, 95 N.E. 2d 145.

 

33. A commercial test of navigability, as opposed to recreational navigability, has traditionally been applied in Indiana. Kivett at 228 Ind. 623, 628. The Indiana Court of Appeals has recently declined to apply the test of recreational navigability to another public freshwater lake, and hinted that the lake was non-navigable after observing that the "capacity of the stream" test expressed by Kivett was not satisfied. Bath v. Courts (1984), Ind. App., 459 N.E. 2d 72, 75.

 

34. No evidence was presented in this administrative proceeding to support a finding that Lake Pleasant is navigable. An inference might be drawn from the cited cases that Lake Pleasant is non-navigable.

 

35. The project described in Finding 29 does not require the Claimants to secure a permit under IC 14-3-1-14.5.

 

36. Where a permit is sought with the magnitude of the project described in Finding 29, the applicants are responsible for conduction their activities in a manner which does not violate the purposes of IC 13-2-11.1. Notably, construction must be conducted in a manner which will preserve and protect the natural resources offered by the public freshwater lake. Concerns for those natural resources include reasonable steps for the preservation of fish and wildlife habitat and for the preservation of water quality.

 

37. Lake Pleasant has numerous large shallow areas, and these shallow areas are sought by certain species of wildlife. Present are a pair of sandhill cranes, but a species of bird which receives more direct benefits from shallow water area is the great blue heron.

 

38. The zone included within the project described in Finding 29 receives a great deal of human use and is not a pristine area. There are very frequent boat propeller tracks, many of which are visible on the surface of the shallow lake bed.

 

39. The type of disturbance described in Finding 38 is not conducive to the well being of fisheries or aquatic organisms, whether plant or animal.

 

40. The parameters of the project anticipated by the permit are not so large as to constitute a serious threat to usage by the lake of bird and other animal species which use shallow lake areas.

 

41. A problem with Lake Pleasant, from a wildlife management perspective, is that the lake has minimal contour changes on its bed. A relatively flat bed is not conducive to fish populations which utilize lake bed diversity, particularly within close proximity, to seek escape from predators.

 

42. The project contemplated by the permit may present some benefit to fish populations by establishing more pronounced contour changes. In addition, the somewhat greater depth which results from the project may allow fish to move more easily beneath boats within what is a highly utilized area.

 

43. The project contemplated by the permit is not likely to have adverse consequences to fish populations if performed according to permit standards set forth in this document.

 

44. The preservation of water quality and a sound lake environment can be promoted through the use of a cutterhead dredge rather than the use of a dragline. A cutterhead dredge utilizes a suction pump which removes water, sand and gravel from a lake bed or river bed and pumps materials through a discharge pipe to a predetermined land site. The land site can provide a holding area for the settlement of silts and residues and for quality control before water is returned to the waterway. A dragline allows the discharge of water, silts and residues directly into the lake through a perforated bucket.

 

45. During the hearing conducted on June 10, 1987, the Claimants agreed to use a cutterhead dredge in order to effectuate the project contemplated by the permit.

 

46. The use of a cutterhead dredge to excavate materials from the bed of Lake Pleasant should be made a condition of the permit.

 

47. An important element to the sound use of a cutterhead dredge

 

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is an appropriate land site to receive dredged materials.

 

48. A land site has been selected to receive dredged materials during operations under the permit. The site is on property owned or controlled by the Claimants and adjacent to Lake Pleasant within proximity to the project area. The land site contains slightly more than four (4) acres. A sketch of the land site is attached and incorporated by reference as "Findings Exhibit One." This land site may be identified in this document as the "land disposal site."

 

49. The land disposal site is located outside the boundaries of Lake Pleasant and is not a wetland over which the Department has jurisdiction.

 

50. The Department of the Army, Detroit District, Corps of Engineers, has conducted an inspection of the disposal site and has determined the disposal site is not a wetland. The disposal site is not within the jurisdiction of the Corps of Engineers and does not require a permit from that federal agency.

 

51. The land disposal site is within an appropriate location to receive materials dredged during operations under the permit.

 

52. Another important element to the sound use of a cutterhead is that dredged materials be properly confined until water is ready for return to the waterway.

 

53. Following the hearing in this action, Aquatic Control, Inc. prepared specifications for diking and for the settlement pond for dredged materials to be utilized with the cutterhead. The specifications were tendered by the Claimants' attorney in a letter dated February 1, 1988 an area attached as "Findings Exhibit Two."

 

54. Substantial compliance with all specifications contained in Findings Exhibit Two should be made a condition of the permit.

 

55. Following the hearing in this action, Soil Testing, Inc. analyzed soil borings of the area to be excavated under the permit. Logs of those brings present a fairly complex cross-section of materials in the zone to be excavated under the permit. Within the area to be excavated, sand mixed with organic traces predominates the upper layers, with some greater propensity for gravel below two (2) feet in depth. Also referenced in one boring are traces of clay or marl. Logs for the borings were tendered by the Claimants' attorney in a letter dated January 31, 1987.

 

56. None of the materials represented by the logs identified in Finding 55 demonstrate a composition which cannot properly be dredged through the use of cutterhead.

 

57. Another element to the sound use of a cutterhead is that water which is returned to the waterway meet quality testing standards.

 

58. The Department by its attorney represented, in a Proposal for Water Quality Testing filed on July 14, 1988, that the proper discharge standards are those of wastewater which is not the result of an industrial process. ". . . [T]he parameter or pollutant of concern in this cause is that of suspended solids and. . .a limitation for this parameter in analogous permits is set are 70 milligrams per liter, daily maximum, and 35 milligrams per liter, daily average, for discharges into surface water bodies." Additionally, the Department by its attorney recommended that water quality standards contained within 330 IA. 1-1-6(1)(A), (B) and (C) should be applied to the permit.

 

59. Based upon the standards expressed in Finding 58, the attorney for the Department proposed "that the return flows from the dredging operation be detained in a settlement pond until said waters are free of visible floating solids and have less than 70mg/1 suspended solids."

 

60. The standards contained in Finding 58 and the proposal contained in Finding 59 should be made a condition of the permit.

 

61. In order to monitor the proper exercise of the terms of the permit, particularly those pertaining to water quality, the Claimants should be required to contract with an independent testing facility found suitable by the Department. Testing should be performed at the expense of the Claimants and reports made to the Department according to a schedule agreed by the Division of Water (made in consultation with the Division of Fish and Wildlife).

 

62. The site of the lake excavation, the land disposal site, the cutterhead and equipment and any other facilities used in exercise of the permit must be open at all times to inspection by the Department.

 

63. Exercise of the permit should be subject to immediate suspension by the Department if found not to be in conformance with each of the standards and terms set forth in this document.