[NOTE: THE PARTIES ENTERED INTO NEGOTIATIONS AND RESOLVED THIS PROCEEDING AFTER ENTRY OF A NONFINAL ORDER BY THE ALJ BUT BEFORE SUBMISSION TO THE NRC FOR A FINAL DISPOSITION.]
The decision of the Department of Natural Resources to deny permit application PL-15,068 is affirmed.
FINDINGS OF FACT
1. The Indiana Department of Natural Resources ("DNR") is an agency within the meaning of IC 4-21.5.
2. IC 4-21.5, IC 13-2, and 310 IAC 6 apply to these proceedings.
3. The DNR is the state agency charged with the responsibility of regulating public freshwater lakes.
4. The Natural Resources Commission ("NRC") is the ultimate authority within the meaning of IC 4-21.5 with respect to permitting decisions made by the DNR.
5. In August of 1992, Jeff Halstead ("Halstead") filed an application for permit PL-15,068 ("Permit") with the DNR.
6. This application for a permit sought approval for the construction of an underwater beach and dredging a small portion of the lake bed of Jimmerson Lake in Steuben County, Indiana.
7. Halstead is a riparian (littoral) owner of property on Jimmerson Lake.
8. Jimmerson Lake is a public freshwater lake as defined by IC 13-2-11.1-1.
9. The DNR denied the permit for reasons involving impact on wetlands.
10. Halstead filed a timely request for administrative review.
11. As of the current time, Indiana has not adopted a formal definition of "wetland".[FOOTNOTE 1]
12. Testimony presented by both parties and pictures introduced by both parties indicate that other than a small wooden pier the Halstead shoreline is in a relatively undeveloped state.
13. The entire shoreline is vegetated with cattails, loosestrife, and other plants which grow in moist areas.
14. The permit application involves approximately 40 feet of shoreline south of the pier to the adjoining property line.
15. The parties generally agree that the 65 to 70 feet of shoreline north of the pier is a wetland, and the Halstead application did not involve any disturbance to the north shoreline.
16. The 40 feet of shoreline south of the pier is not as wet and not as heavily vegetated. The south shoreline does not appear from the photographs to support as diverse or thick stand of vegetation as the northern shoreline. The south shoreline area is frequently dry enough to allow someone to walk on it.
17. The adjoining property to the south has a beach which extends to the Halstead property line.
18. Jimmerson Lake is a high use lake with extensive development both on and off the shore. As such, there is little wildlife living near the shoreline.
19. The proposed underwater beach would extend approximately 40 feet into the water. This figure coincides with the distance the Halstead pier extends into the Lake. The pier is "L" shaped, and thus the proposed permit area would be a cove bounded on the north and west by the pier, on the east by the shoreline, and the south by the property line and the neighbors beach.
20. The first issue that needs to be addressed is whether or not the shoreline south of the pier is a wetlands
21. The DNR based its conclusion that the permit area was a wetland solely because of the species which grow there.
22. Water and Water Rights (1991 Edition, Michie Publishing Co.) defines "wetlands" as "lands that are usually covered by water or so saturated by water that they cannot, without artificial drainage, be developed for human occupancy, including bogs, marshes, and swamps."
23. In United States v. Riverside Bayview Homes, Inc. (1985), 474 U.S. 121, the United States Supreme Court was presented with the opportunity to discuss wetlands in
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conjunction with Army corps of Engineer Permits. It found the federal definition to be "those areas that are inundated or saturated by surface or ground water at a frequency or duration sufficient to support, and that under normal circumstances do support, a prevalence of vegetation typically adopted for life in saturated soil conditions." See 33 CPR 323.2.
24. Several contested Steuben County cases involving wetlands have been decided on prior occasions and reported in Caddnar.
25. In McClue v. DNR, 3 Caddnar 5 (1986), the NRC approved findings which included a definition of wetland as "real property that has, at least intermittently, water saturated soils". See also Nelson v. DNR, 2 Caddnar 17 (1986), which includes a finding that development on Jimmerson Lake has removed much vegetation from the shoreline.
26. Under any of the above definitions, the 40 foot shoreline in question is a "wetland". It is not a particularly high quality one and does not appear to make much of a contribution to the ecology of the. lake, but it is a wetland area.
27. 310 IAC 6-2 was adopted in 1990. Prior to that time, there were no specific rules governing public freshwater lakes.
28. 310 IAC 6-2-18 as initially adopted allowed the DNR to waive the requirement dealing with the prohibition of underwater beaches in wetlands. 310 IAC 6-2-18(b)(4) allowed the Director of the Division of Water to approve a permit for an underwater beach if "There are no wetlands or evidence of recent existence of wetlands present." 310 IAC 6-2-18(c) provided that "A permit for an underwater beach does not satisfy subsection (b) may be issued by the deputy director."
29. If this rule still applied, the Halsteads' underwater beach should be permitted, as the environmental effect of this 40 foot area is minimal and its replacement by an underwater beach inside the L-shaped area of the dock would have no measurable environmental impact.
30. However, in 1991, the NRC adopted amendments to 310 IAC 6-2-18 which deleted the language from 310 IAC 62-18(c) which allowed the deputy director to issue a permit even if all conditions of 310 IAC 6-2-18(b) are not met. Amended 310 IAC 6-2-18(b) retained the clause requiring that no wetlands be present. It added other sections involving limitations on the area to be covered by the underwater beach. Halstead's application satisfies the area limitations.
31. Since the area in question involves a wetland and the ability of the deputy director to grant a permit application which does not conform to all the conditions of 310 IAC 6-2-18(b) has been replaced, the permit denial is affirmed.
FOOTNOTE
1. There is currently a proposed rule which would define "wetland".
This rule was preliminarily adopted on September 22, 1993, by the NRC. it defines a wetland as "a transitional area between a terrestrial and deep water habitat (but not necessarily adjacent to a deep water habitat) where at most times the area is either covered by shallow water or the water table is at or near the surface and under normal circumstances any of the following conditions are met:
(A) The area predominantly supports hydrophytes, at least periodically.
(B) The substrate is predominantly undrained hydric soil (examples: muck or peat).
(C) The substrate is not a soil but is instead saturated with water or covered by shallow water some time during the growing season (examples: marl beaches or sand bars)."