Permit PL-14,358 issued on August 5, 1991 to Wayne Dickerhoff and Mary Dickerhoff for approval to change the shoreline or bed of a public freshwater lake is in all respects affirmed. Permit PL-394 issued on August 5, 1991 to Robert Bolinger for approval to change the shoreline or bed of a public freshwater lake is in all respects affirmed.
FINDINGS OF FACT
1. The Indiana Department of Natural Resources (the DNR) is an "agency" within the meaning of IC 4-21.5-1-3. This proceeding is governed by IC 4-21.5 and a rule (310 IAC 0.6-1) adopted by the natural resources commission (the "Commission") to assist in the implementation of that statutory article.
2. The DNR is the state agency responsible for approving permits to alter the bed or shoreline of a public freshwater lake under IC 13-2-11.1.
3. To assist in the administration of IC 13-2-11.1, the Commission has adopted a rule. The codification of the rule is set forth at 310 IAC 6-2.
4. The Commission is the "ultimate authority" for the DNR with respect to a proceeding under IC 4-21.5 and 310 IAC 6-2 to determine a dispute governed by IC 13-2-11.1 and 310 IAC 6-2.
5. Lake of the Woods in Marshall County is a large inland lake containing approximately 416 surface acres. The lake is at the eastern extremity of the Illinois River Basin, located near the headwaters of the Yellow River, a major tributary of the Kankakee River. Lake of the Woods is highly developed for residential and recreational purposes. Lake of the Woods is a "public freshwater lake" as defined in IC 13-2-11.1-1 and 310 IAC 6-2-10.
6. Wayne Dickerhoff and Mary Dickerhoff sought a permit from the DNR under IC 13-211.1 and 310 IAC 6-2 to place a sea wall between their real estate and the lake of the Woods. This permit application is designated by the DNR as "PL-14,358". A permit (the "Dickerhoff permit") was issued by the DNR on August 5, 1991 under docket PL-14,358 to the Dickerhoffs with conditions.
7. Robert Bolinger sought a permit from the DNR under IC 13-2-11.1 and 310 IAC 6-2 to place a sea wall between his real estate and the Lake of the Woods. This permit application is designated by the DNR as "PL-14,394". A permit (the "Bolinger permit") was issued by the DNR on August 5, 1991 under docket PL-14,394 to Robert Bolinger with conditions.
8. The Dickerhoff permit and the Bolinger permit authorize the placement of sea wall segments which would be contiguous. The two approvals apply to neighboring real estate on the Lake of the Woods. Essentially, the two permits would authorize a single seawall protecting both the property of the Dickerhoffs and Bolinger.
9. On August 23, 1991, Wayne Dickerhoff and Robert Bolinger jointly petitioned for administrative review of the conditions attached to the Dickerhoff permit and the Bolinger permit. The petition for administrative review was timely and caused the initiation of this proceeding.
10. Because the Dickerhoff permit and the Bolinger permit authorize the construction of a continuous sea wall, and because the recipients of the two permits petitioned jointly and sought the same relief, these administrative reviews were handled in a single proceeding.
11. A prehearing conference was held in this proceeding on October 15, 1991. During the prehearing conference, the parties identified the two issues to be resolved:
(1) whether the "waterline or shoreline" of Lake of the Woods, along which the sea walls authorized by the Dickerhoff permit and the Bolinger permit are to be placed, is established at elevation 803.85 feet mean sea level datum or 802.85 feet mean sea level datum; and
(2) whether a new dam or control structure placed on Lake of the Woods in 1986 conforms to the lower of two elevations
[VOLUME 6, PAGE 66]
established on the Lake of the Woods by the Marshall Circuit Court (ie., 802.85 feet).
12. As applied to Lake of the Woods, the "waterline or shoreline" means the line formed on the bank or shore of a lake by the water surface at the legally established average normal-level. IC 13-2-11.1-1 and 310 IAC 6-2-13.
13. On August 9, 1948, the Marshall Circuit Court established the average normal level for Lake of the Woods at 803.85 mean sea level datum. Cause No. 24045, Marshall Circuit Court (Respondent's Exhibit A).
14. The "waterline or shoreline" of the Lake of the Woods after 1948 was the line formed on the bank or shore of the lake by the water surface at 803.85 feet.
15. In 1957, a control structure was placed on the Lake of the Woods to regulate its level. Between 1957 and 1984, the average normal water level for the Lake of the Woods was 803.63 feet. Paragraphs 7 and 9 of the "Findings of Fact, Conclusions of Law and Judgment" of the Marshall Circuit Court, Cause Number 8682 (Respondent's Exhibit D).
16. By 1986, the 1957 control structure had fallen into disrepair. In order to protect and maintain the average normal water level of the Lake of the Woods, the Marshall Circuit Court found it necessary to repair, rebuild, or replace the structure. Paragraph 16 of the "Findings of Fact, Conclusions of Law and Judgment" of the Marshall Circuit Court, Cause Number 86-82 (Respondent's Exhibit D).
17. On August 11, 1986, the Marshall Circuit Court entered a judgment which states in pertinent part:
1. The average normal water level of Lake of the Woods in Marshall County, Indiana shall remain and hereby is re-established at 803.85 feet (elevation, mean sea level datum) for the time period between May 15 and September 15 of each year. From September 15 to May 15 of each year the control structure gates should be opened and lower sill elevation of 802.85 feet (elevation, mean sea level datum) shall serve as the low water control.
2. The current control structure in Lake of the Woods is damaged and in a state of disrepair and, in order to effectuate the establishment of a legal water level, the control structure must be repaired, rebuilt or replaced.
18. After 1986, the "waterline or shoreline" of the Lake of the Woods continued to be the line formed on the bank or shore of the lake by the water surface at elevation 803.85 feet.
19. A written permit is required by 310 IAC 6-2-16 for the placement of a new sea wall and by 310 IAC 6-2-17 for refacing an existing sea wall. Approved materials for a new sea wall are concrete, steel piling, or rock. 310 IAC 6-2-17(b)(1).
20. Currently existing on the Dickerhoff property and on the Bolinger property are sea wall segments constructed from treated railroad ties. Because railroad ties are no longer approved for the construction or refacing of a sea wall, the Dickerhoff permit and the Bolinger permit must conform to the requirements of 310 IAC 6-2-16 regarding new sea walls. (Concrete is the construction material approved in the permits for the new sea wall along the Dickerhoff property and the Bolinger property.)
21. The DNR approved the new concrete sea walls along the "waterline or shoreline" of the Lake of the Woods established when the lake is at elevation 803.85 feet.
22. Wayne Dickerhoff and Robert Bolinger seek authorization for the placement of the sea walls at the water's edge when the lake is at elevation 802.85 feet. In support of this request, the claimants presented evidence of the difficulties encountered by them with the existing railroad tie sea wall (which is located near the legal "waterline or shoreline").
23. The evidence is unrefuted that debris accumulates along the shore adjacent to the claimants' properties, particularly between September 15 and May 15 when the control structure releases any water above elevation 802.85 feet. The debris consists mostly of dark silt, but there is also an assortment of garbage (including beverage cans, wrappers, cigarette lighters, dead animals, and similar items). Both the Dickerhoff property and the Bolinger property are well-maintained, and this accumulation of debris can reasonably be anticipated to diminish their enjoyment of the property and may also adversely affect their property values.
24. The sources of debris are multiple. The claimants' properties are located on the northern shore of Lake of the Woods, and floating material are delivered by the predominant southwesterly breezes. Silt occurs as a result of human activities along the lake, probably including ineffective septic systems. The most obvious contributors to siltation, however, are the inlet ditches to Lake of the Woods: Wayne Dickerhoff testified that six ditches empty into the lake; and documentation stipulated by the parties confirms that Kimble Ditch, Martin Ditch
[VOLUME 6, PAGE 67]
and Seltenright Ditch, which enter on the northwest shore, and Scofield Ditch, which enters at the western lobe, all discharge into Lake of the Woods. (Stipulated Exhibit III.)
25. However, the use of the elevation 802.85 to establish the lake boundary for the placement of sea walls as requested by Dickerhoff and Bolinger cannot be approved for any of three reasons:
(1) The land area between the line formed by the waterline or shoreline (803.85 ft) and the line formed at the lower pool elevation of the lake (802.85 feet) is governed by the public trust doctrine.
(2) 310 IAC 6-2-16 requires that the lakeward face of a new sea wall be along the waterline or shoreline.
(3) The purpose of a sea wall is not to protect property owners adjacent to a lake from the kinds of problems identified by Dickerhoff and Bolinger.
26. The public trust doctrine applies to public freshwater lakes pursuant to IC 13-2-11.1, with the DNR as the trustee for the citizens of Indiana. As provided in IC 13-211.1-2(b), "the state has full power and control of all public freshwater lakes in Indiana ... ; it holds and controls all of such lakes in trust for the use of all its citizens .... " The public trust doctrine ordinarily prohibits the annexation of a portion of the bed of a public freshwater lake for a private purpose. Phillabaum v. DNR, 6 Caddnar 6 (1990).
27. The placement of sea walls along the waters edge for Lake of the Woods at elevation 802.85 would cause the annexation of the portion of the lakebed between that line and the waterline or shoreline of the lake. This result is prohibited by the public trust doctrine.
28. 310 IAC 6-2-16(b)(2) provides a new sea wall permit can be granted only if the DNR finds "the location of the lakeward face of the sea wall is along the waterline or shoreline." The permit approval sought by the claimants would be closer to the lake's center than is the waterline or shoreline of Lake of the Woods.
29. A sea wall is not designed to protect an adjacent landowner from the kinds of problems suffered by the claimants. As stated in Webster's New Riverside University Dictionary, 1988, a sea wall is "an embankment or wall designed to prevent erosion of a shoreline."
30. There has been no showing that movement of the sea wall from the location approved by the DNR to a position farther lakeward would provide any greater assistance against shoreline erosion.[FOOTNOTE i]
31. Subsequent to entry of the 1986 order of the Marshall Circuit Court, a new control structure was placed on Lake of the Woods. In December 1986, the DNR surveyed levels to determine the elevation of the crest of the new control structure."
32. As a result of the survey, the crest of the spillway for the control structure was determined to have an elevation between 802.82 and 802.83 feet mean sea level for low water control.
33. The difference between the elevation ordered by the Marshall Circuit Court and the elevation found by the DNR's survey for the control structure, as built, is between .02 feet and .03 feet. This difference is inconsequential.
34. Wayne Dickerhoff stated in a letter dated February 7, 1992 that the claimants' "stance is neutral on documents confirming proper installation and operation of the Lake of the Woods" control structure.
35. No evidence was offered by either claimant to establish a genuine issue in dispute as to conformance of the control structure with the terms of the 1986 order of the Marshall Circuit Court. As a result, partial summary judgment was granted on this issue in favor of the DNR on February 19, 1992.
36. Subsequently, the claimants caused a private survey of the control structure to be performed. They reported during the hearing held on May 15, 1992 that their private survey confirmed the results of the DNR's survey.
37. There is no genuine issue of fact with respect to whether the control structure for Lake of the Woods was placed at the lower proper elevation.
38. The control structure placed on Lake of the Woods in 1986 properly reflects the lower elevation established by the Marshall Circuit Court.
39. The DNR properly conditioned issuance of the Dickerhoff permit and the Bolinger permit on placement of the lakeward face of their sea walls at the waterline or shoreline of Lake of the Woods at elevation 803.85 feet. The petition by the claimants to apply elevation 802.85 feet cannot be approved because to do so would
(1) violate the public trust doctrine;
(2) violated 310 IAC 6-2-16(b)(2); and
(3) not enhance the erosion control purpose of the sea wall served at the location already approved.
40. The evidence is unrefuted that the control structure placed on Lake of the Woods in 1986 correctly reflects the lower elevation established by the Marshall Circuit Court.
[VOLUME 6, PAGE 68]
FOOTNOTE
i. Wayne Dickerhoff and Robert Bolinger have genuine problems with enjoyment of their lake frontage. These problems result primarily from environmental degradation of Lake of the Woods. These problems plead for a remedy, not only to benefit the claimants, but to benefit the lake and all the citizens who enjoy the lake. These problems do not call for a relocated sea wall. Extending the sea wall lakeward might serve some temporary private benefit to the claimants but can only obscure or relocate the debris which the claimants (and the lake) now suffer. Although outside the scope of these proceedings, the evidence suggests efforts should be undertaken to control sedimentation from the inlets to Lake of the Woods. If siltation is not controlled, Lake of the Woods (and particularly those portions of the lake near the inlets) will serve as a sediment trap; and the lake will suffer a premature death. "Lake enhancement" and erosion control projects administered by the DNR may provide an avenue for relief. Possibly, there may be some "innovative practice" which could protect the shoreline along the claimants' properties from being covered with debris. A structure which is temporary and less obtrusive than a sea wall might provide relief until sedimentation control is achieved. Innovative practices on public freshwater lakes are governed by 310 IAC 6-2-22.