[NOTE: THE NONFINAL ORDER WAS NEVER ACTED UPON BY NATURAL RESOURCES COMMISSION BECAUSE THE PARTIES REACHED A POST-DECISION SETTLEMENT, AND VOLUNTARILY AGREED TO WITHDRAW THE CASE FROM THE COMMISSION.]
The decision of the Department of Natural Resources to deny permit application PL 16,469 is reversed. Permit application PL 16,469 is granted.
FINDINGS OF FACT
1. The Indiana Department of Natural Resources ("DNR") is an agency within the meaning of IC 4-21.5.
2. The DNR is the state agency responsible for regulating the bed and shoreline of public freshwater lakes.
3. IC 14-26, IC 4-21.5, and 310 IAC 6 apply to these proceedings.
4. The Natural Resources Commission ("NRC") is the ultimate authority within the meaning of IC 4-21.5 over matters arising from DNR decisions on permits involving public freshwater lakes.
5. Ralph and Margaret McDowell ("McDowell") purchased a home on the shoreline of Lake James in Steuben County, Indiana, in 1991 and have used the home as a permanent residence since sometime in 1992.
6. Lake James is a public freshwater lake as defined by IC 14-26-2-3.[FOOTNOTE 1]
7. When McDowell purchased the property in question, his shoreline property (and three other adjoining lots) had a somewhat deteriorating concrete seawall which had been present for some period of time.
8. During the winter of 1994-1995, the concrete seawall was badly damaged by a particularly hard freeze-thaw cycle in the lake.
9. An undesirable consequence of the deterioration has been to subject the rocks and boulders used for backfill behind the seawall to "frost heave" thus causing damage to the shoreline.
10. In June of 1995, McDowell filed public freshwater lake construction permit application PL 16,469 ("permit") which would allow him to rebuild/repair the concrete seawall by using part of the existing seawall and placing new concrete approximately 12" out into the lake from the base of the old seawall with a layer above the old seawall.[FOOTNOTE 2]
11. The face of the proposed seawall would be angled to minimize the adverse effects of freezing.
12. The water is approximately two feet deep at the seawall.
13. When high water conditions exist, the existing seawall is completely covered by water.
14. On September 15, 1995, the DNR denied the permit solely on the basis of detrimental impact to the lake's scenic beauty. See Exhibits G and I.[FOOTNOTE 3]
15. The DNR may consider the effect of a construction project on the natural scenic beauty of a public freshwater lake. See IC 14-26-2-6.
16. Both IC 14-26-2-5 and 310 IAC 6-2-8 define natural scenic beauty as "the natural condition as left by the nature without man made additions or alterations."
17. The testimony of the one and only witness for the department, a qualified fish and wildlife biologist who has worked for the DNR in northwestern Indiana for almost 15 years, indicated that his recommendation of denial was based on a shoreline map (found in Exhibit l) developed by himself and another fish and wildlife biologist which sought to identify wetlands and highly developed areas around Lake James.
18. The two fish and wildlife biologists identified the McDowell property as in an area with little or no concrete shoreline development.
19. The DNR has no objection to the seawall being reconstructed or enlarged if glacial stone is used instead of concrete.
20. There is no evidence that the McDowell waterfront is or could be considered a wetland and his photographs (Exhibit l several parts) show conclusively that it is not.[FOOTNOTE 4]
21. If this area were wetlands, the issue would be easy. For one thing, it is clear that an experience fish and wildlife biologist can qualify as an expert when it comes to classifying a property as a wetland.
22. It is not obvious that a fish and wildlife biologist qualifies as an expert with respect to
[VOLUME 7, PAGE 127]
classifying property with respect to "natural scenic beauty" and not clear that such testimony is of any more value or weight than any that of other person.
23. Further, the testimony is overwhelming that there is a four lot frontage area including the McDowell property which has had a concrete seawall in place for a number of years[FOOTNOTE 5], and the photographs in evidence show the McDowell lawn extending to the seawall.
24. From the pictures submitted by McDowell, it is easy to see how someone viewing the shore from the lake could think there were not concrete seawalls in place, particularly if the water level was high.
25. The NRC has the sometimes difficult job of balancing riparian rights of shoreline owners and those of the public at large.
26. It is clear from decisions like Bath v. Courts (1984), 459 N.E.2d 72, that riparian owners have some rights involving uses and benefits of their lake front property.
27. In this case, the preponderance of the evidence favors the riparian owner.
28. McDowell's predecessor in interest had actively sought to protect the shoreline by use of a concrete seawall.
29. Other lot owners near him have done the same.
30. It is not clear from the testimony that this area of shoreline can be considered a candidate for "natural scenic beauty" even if the DNR testimony could be considered "expert" testimony on the subject matter.
31. The map in question of the shoreline of Lake James has never been adopted as part of a rule or otherwise been subjected to both public comment and NRC approval. To rely on the map exclusively amounts to treating it as a rule without going through the rule making process.[FOOTNOTE 6]
32. One last item in McDowell's favor is 310 IAC 6-2-17.
33. This rule was adopted in 1990 and appears to both authorize and encourage the refacing of concrete seawalls as long as the refacing is not more than twelve inches thick and no prior permit to reface the seawall has been granted.
34. Since this is not a new seawall (in which 310 IAC 6-2-16 would apply) but the reconstruction/refacing of an existing seawall, McDowell should receive his permit.
FOOTNOTES
1. No direct evidence was introduced on this point but the trier of fact can take official notice that the DNR is a major riparian owner (Pokagon State Park) and thus the public at large has access to the lake.
2. The permit application (Exhibit A) makes reference to IC 13-2-11.1. On July 1, 1995, this section was recodified and redesignated IC 14-26-2. All references in this decision are to IC 14-26-2. There were no substantive changes to the law as a result of recodification.
3. Exhibit I is the actual denial letter. It makes some reference to "negative impacts to aquatic vegetation due to wave action against the seawall". This is the only reference in the record to this issue. Absolutely no evidence was presented by the DNR witness of such negative impacts on vegetation and his report (Exhibit G) used by the DNR to deny the permit makes no mention of the effect on aquatic plants. Also, there is currently a concrete seawall on the property.
4. Mr. McDowell is a retired engineer whose testimony showed an understanding somewhat above average of construction techniques and wetlands. He basically agreed with the mapping of wetlands areas.
5. The current public freshwater lake statute (now IC 14-26) was passed in 1982. The seawall was likely installed before that time.
6. Exhibit F makes reference to proposed rule changes being discussed in May of 1995. Until the rule is actually passed, the DNR cannot rely on it.