Content-Type: text/html 96-036w.v8.html

CADDNAR


[CITE: Kinder v. Department of Natural Resources. 8 CADDNAR 23 (1998)]

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Cause #: 96-036W
Caption: Kinder v. Department of Natural Resources
Administrative Law Judge: Wilcox
Attorneys: Kinder, pro se; Nardi
Date: October 28, 1998

ORDER

[NOTE: ON MARCH 26, 1998, STEUBEN SUPERIOR COURT, IN CAUSE NUMBER 76DO1-9706-CP-425, DENIED SUMMARY JUDGMENT AND REMANDED TO ALJ TO MAKE FURTHER FINDINGS. ON OCTOBER 28, 1998, THE NATURAL RESOURCES COMMISSION ADOPTED NEW FINDINGS AND CONCLUSIONS OF LAW. THE DECISION OF THE DEPARTMENT OF NATURAL RESOURCES TO DENY PERMIT APPLICATION PL-16,473 FOR CONSTRUCTION OF A CONCRETE SEA WALL IS UPHELD. PERMIT APPLICATION PL-16,473 IS APPROVED FOR CONSTRUCTION OF A GLACIAL STONE SEA WALL ON THE PROJECT SHORELINE, SUBJECT TO THE CONDITIONS PROVIDED IN THE DEPARTMENT'S HEARING EXHIBITS A-8 AND A-14. THESE FINDINGS DIFFER FROM THE FINDINGS ENTERED ON MAY 22, 1997, AND ARE SET FORTH BELOW. STEUBEN SUPERIOR COURT DECISION FOLLOWS.]

The decision of the Department of Natural Resources to deny permit application PL-16,473 for construction of a concrete sea wall is upheld. Permit application PL-16,473 is approved for construction of a glacial stone sea wall on the project shoreline, subject to the conditions provided in the Department's Hearing Exhibits A-8 and A-14.

FINDINGS OF FACT

BACKGROUND FACTS

1. The Indiana Department of Natural Resources ("Department") is an agency within the meaning of IC 4-21.5.

2. IC 4-21.5, IC 14-26 and 310 IAC 6 apply to these proceedings.

3. The Department is the state agency responsible for the regulation of public freshwater lakes in Indiana.

4. The Natural Resources Commission ("Commission") is the ultimate authority with respect to permitting decisions made by the Department involving the shoreline alterations of public freshwater lakes.

5. At all times relevant to these proceedings, Joan Kinder ("Kinder") owned lake front property on the shoreline of Jimmerson Lake, a large public freshwater lake in Steuben County, Indiana.

6. The Kinder property currently has a sea wall constructed of railroad ties that was built in the early 1970's to prevent shore erosion from boat waves in the lake.

7. The wooden wall is now rotting away and needs replacing.

8. Current rules of the Department do not permit wooden sea walls. The current sea wall is a lawful, nonconforming use since it was constructed prior to the Department's regulatory authority. See 310 IAC 6-2-16 and 310 IAC 6-2-23.

9. Kinder filed permit application number PL 16,473 ("permit") requesting approval of the construction of a sloped (55?) concrete sea wall to replace the rotting wood seawall.

10. The permit application involves approximately 86 feet of shoreline.

11. The permit application was reviewed by several divisions within the Department.

12. The Lake Section of the Division of Water recommended approval of the application for a concrete sea wall, subject to several conditions primarily dealing with a proposed underwater beach which is not at issue here. Department Exhibit A-8.

13. The Division of Fish and Wildlife recommended denial of a concrete seawall and recommended the use of glacial stone. The reports of the Division of Fish and Wildlife, dated August 31, 1995 and July 17, 1995, stated that the shoreline in question had been mapped as an area of special concern; that shoreline alterations, other than glacial stone sea walls, are scarce; and that only one other concrete seawall exists in the area. Department Exhibits A-14 and A-15.

14. The conclusion of the Division of Fish and Wildlife is that a concrete sea wall will result in negative impacts to the natural scenic beauty and natural resources of the lake and that the permit should be granted only if glacial stone is used. Department Exhibits A-14 and A-15.

15. The Department denied the application for the following reason: significant environmental harm to the natural resources and natural scenic beauty of the lake if a concrete seawall is constructed. See Department Exhibit A-5.

16. The Department indicated that it would approve a glacial stone sea wall.

DE NOVO REVIEW

17. The administrative law judge is required to conduct "de novo review of evidence presented at administrative hearing, weighing evidence

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and reaching conclusion[s], rather than deferring to initial determination[s] of [the] NRC." DNR v. United Refuse Co., Inc., 615 N.E. 2d 100 (Ind. 1993). "The administrative law judge (ALJ) is required to make findings based on evidence presented at hearing; this requires [the] ALJ to independently weigh evidence presented at hearing and to base recommendations exclusively on that record." Id. Findings must be based upon the kind of evidence that is substantial and reliable. Id.

18. A hearing was held in this cause on December 20, 1996 pursuant to the Administrative Orders and Procedures Act at IC 4-21.5, ("AOPA"), wherein both testimonial and documentary evidence were presented by the parties. The evidence presented during hearing is considered in rendering this decision.

PUBLIC FRESHWATER LAKES AND NEW SEAWALLS

19. Several provisions of the Indiana Code and the Indiana Administrative Code govern construction activities on Indiana public freshwater lakes. Amongst these are provisions regulating: the actual permitting of seawalls; the evaluation of natural scenic conditions in relation to the permit application; and the evaluation of potential environmental harm occurring as a result of the permit.

20. 310 IAC 6-2-16(a) requires a permit to construct a new sea wall at the shoreline of a public freshwater lake.

21. 310 IAC 6-2-16(b)(1) provides:

(b) The division director may issue a permit for a new sea wall if:
(1) the sea wall will be constructed of concrete, steel piling, or rock;
(2) the department determines that the location of the lakeward face of the sea wall is along the waterline or shoreline;
(3) all disturbed areas landward of the waterline or shoreline will be suitably revegetated or otherwise provided permanent protection; and
(4) there are no wetlands or evidence of the recent existence of wetlands present.

22. IC 14-26-2-6(3) allows the Department to consider the effect of shoreline construction on the natural resources or scenic beauty of a public freshwater lake.

23. The term "natural scenic beauty" means "the natural condition as left by nature without manmade additions or alterations." IC 14-26-2-5(a).

24. Pursuant to IC 14-26-2-5(c), the natural resources and the natural scenic beauty of Indiana are a public right.

25. IC 14-26-2-5(d) describes the state's role in regulating public freshwater lakes. That section provides:

(d) The state:
(1) has full power and control of all of the public freshwater lakes in Indiana . . .; and
(2) holds and controls all public freshwater lakes in trust for the use of all of the citizens of Indiana for recreational purposes.

26. 310 IAC 6-2-15 (g) provides:

(g) The director (or the director's delegate) shall not issue a permit for a permanent structure except upon a written determination that shows the following: (1) The permit, including conditions attached to the permit, conforms with IC 13-2-11.1 [recodified at IC 14-26-2] and this rule. In making this determination, there shall be a determination that issuance of the permit would not result in significant environmental harm to the public freshwater lake. . .

27. IC 14-26-2-6 provides: "A person may not change the shoreline of a public freshwater lake . . . without having a written permit issued by the department." Pursuant to IC 14-26-2-9, the department may issue such a permit only after

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investigating the merits of a permit application.

28. Pursuant to 310 IAC 6-2-15(a), a permanent structure placed within the waterline or shoreline of a public freshwater lake requires a written permit issued by the department under IC 14-26-2 and 310 IAC 6-2.

29. A sea wall is a permanent structure subject to the requirements of 310 IAC 6-2-15(g), pursuant to 310 IAC 6-2-15(c).

30. The first issue to be decided is whether the permit should be considered as a "new sea wall" since it replaces a previously constructed sea wall.

31. While logical arguments can be made that the concrete sea wall would not be a new sea wall within the meaning of 310 IAC 6-2-16, the Commission has decided otherwise in a prior case.

32. In the matter of Dickerhoff and Bolinger v. Department, 6 CADDNAR 65 (1992), the Commission found that, because the old sea wall was made of railroad ties which were no longer an approved material, a permit to replace the sea wall with a concrete sea wall was a permit for a new sea wall within the meaning of 310 IAC 6-2-16.

33. Based on Dickerhoff, Kinder's request for a concrete seawall to replace the existing railroad tie seawall, constitutes a permit for new seawall within the meaning of 310 IAC 6-2-16.

34. The second issue to be decided is whether the permit application satisfies the requirements of 310 IAC 6-2-16 for permitting new seawalls.

35. The permit application seeks an approveable material, concrete, in a location wherein the lakeward face of the seawall is along the waterline or shoreline, under 310 IAC 6-2-16(b)(1). The Division of Fish and Wildlife and Division of Soil Conservation set forth conditions for the protection of vegetation in requiring that "vegetation be established on any disturbed areas as soon as possible by using straw mulch..." and by requiring that beach material was not to be placed on any wetland vegetation, "especially the pockets of rushes that occur at the project area. See Exhibits A-14, p.1 and A-16, p.2. The requirements of 310 IAC 6-2-16(b)(1) appear to be satisfied.

36. Thirdly, review of the permit effect on the natural scenic beauty of the lake is required. The issue to be decided is whether construction of a concrete sea wall at the Kinder site will result in negative impacts or harm to the natural scenic beauty of the lake.

37. The division comments which led to the decision to require glacial stone in place of concrete were provided by the Division of Fish and Wildlife. The Fish and Wildlife report, dated August 31, 1995, stated that the shoreline in question has been mapped as an "area of special concern" and that other than glacial stone seawalls, shoreline alterations are scarce. This report also indicated that only one other concrete seawall exists in the area.

38. The Fish and Wildlife conclusion is that a concrete seawall will result in negative impacts to the lake's natural scenic beauty and that the permit should be granted only if glacial stone is used. See Exhibits A-14 and A-15.

39. At the hearing, Tom Kinder testified on behalf of the claimant.

40. In the bay area of the Kinder property and to the south, the area consists of wetlands, natural and unprotected shoreline, and glacial stone and timber sea walls.

41. Kinder also testified that the area to the north of his property has several concrete sea walls and the photographs in Claimant's Exhibit 2 confirm this fact.

42. The photographs of the Kinder property (Department Exhibits A-10 through A-12) show the shoreline area to be an attractive, well-maintained, nicely landscaped yard.

43. The Department's Fish and Wildlife biologist, Neil Ledet, testified that the Kinder property is in an area which is mapped as an area of special concern.

44. Ledet indicated that these areas were mapped by boating around the lake, and determining the location of wetlands, areas of special concern, and highly developed areas.

45. Mr. Ledet holds a Bachelor's degree in Fisheries Management, and has been employed by the Department since April, 1976 in various capacities as a biologist. He has been the fisheries biologist for a three county district since 1982.

46. Mr. Ledet stated that areas of special concern were mapped after an investigation by the DNR Division of Fish and Wildlife. The maps were approved by the Natural Resources

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Commission pursuant to Nonrule Policy Document, Information Bulletin #10, dated January 1, 1996. The investigation included, among other things, an inspection and examination of the shoreline by boat from the lake. Department Exhibits B and C.

47. Mr. Ledet testified that he recommends approval of concrete sea walls in areas of special concern only if erosion is a serious problem.

48. The statutory definition of the term "natural scenic beauty" is ". . . the natural condition as left by nature without manmade additions or alterations." IC 14-26-2-5(a).

49. On cross-examination, the Department's witness, Mr. Ledet agreed that there are no written guidelines setting forth standards for "areas of special concern", "highly developed areas" or "natural scenic beauty". However, the statutory definition of "natural scenic beauty" contained in IC 14-26-2-5 provides sufficient written guideline on that issue.

50. The photographs of the shoreline introduced into evidence show a number of manmade alterations to the shoreline on both sides of the Kinder property, including concrete seawalls to the north of Kinder.

51. The Kinder shoreline itself is not in a natural condition based on the existence of the railroad tie seawall sought to be replaced through this permit.

52. The final determination this tribunal must consider is whether the issuance of the permit would result in "significant environmental harm" to the public freshwater lake under 310 IAC 6-2-15(g).

53. 310 IAC 6-2-15 (g) provides: (g) The director (or the director's delegate) shall not issue a permit for a permanent structure except upon a written determination that shows the following: (1) The permit, including conditions attached to the permit, conforms with IC 13-2-11.1 [recodified at IC 14-26-2] and this rule. In making this determination, there shall be a determination that issuance of the permit would not result in significant environmental harm to the public freshwater lake. . .

54. "Significant environmental harm" is defined at 310 IAC 6-2-12.5 as: "damage to natural or cultural resources, the individual or cumulative effect of which is found by the director to be obvious and measurable (based upon the opinion of a professional qualified to assess the damage) and which:

(1) creates a condition where recovery of affected resources is not likely to occur within an acceptable period; and
(2) cannot be adequately mitigated through the implementation of a mitigation plan approved by the director."

55. Three considerations are required under this rule. First, the individual or cumulative effects of damage to natural or cultural resources must be found to be obvious and measurable. Secondly, this tribunal must consider whether the individual or cumulative effects of the damage create a condition where recovery of affected resources is not likely to occur within an acceptable period. Lastly, a determination whether effects of that damage can be adequately mitigated through the implementation of a mitigation plan is required.

56. The obviousness and measurability of individual or cumulative effects of damage to the natural or cultural resources must be based on the opinion of a professional qualified to assess the damage.

57. "Cumulative effects" is defined at 310 IAC 6-2-2.5 as "the impact on the environment which results from the incremental impact of the action when added to other past, present, and reasonably foreseeable future actions regardless of what person undertakes the other actions. Cumulative effects can result from individually minor but collectively significant actions taking place over a period of time."

58. Does the record provide evidence supporting a finding that damage to natural or cultural resources would result from the placement of a concrete seawall on Kinder's property? If so, are the individual or cumulative effects of that damage obvious and measurable and based upon the opinion of a professional qualified to assess the damage?

59. "Cumulative effects" of a concrete

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seawall were considered in the hearing. As previously stated, cumulative effects can result from individually minor but collectively significant actions taking place over a period of time. The department considered in its review whether other "projects" similar to the Kinder project would result in the "worst case" of the entire shoreline of Lake Jimmerson being constructed with concrete seawalls, and the effect of such a scenario. See Transcript of Ledet's testimony, p. 64.

60. The individually minor effect of other landowners constructing concrete seawalls, when added with other landowners' construction, may lead to significant, measurable and obvious effects to Lake Jimmerson.

61. Departmental representatives testified that natural resources damage would occur if the concrete seawall were constructed. Both Department witnesses testified as to their observations at the Kinder site and surrounding area. Ledet testified that pockets of rush were present near the project area, rush being described as a sensitive aquatic plant with a declining population throughout Indiana lakes. See Memo of Exhibit A-15.

62. He asserted that rush species disappear as concrete seawalls are constructed due to the wall dislocation of the plant and due to the change in wave action causing increased lake scouring. Ledet testified that concrete seawalls do not break up wave energy well, but cause the wave energy to reflect back to the lake, causing increased scouring of lakebeds.

63. Dr. Gwen White, an employee of the Department's Division of Soil Conservation also testified on behalf of the Department. Evidence was presented that Dr. White holds a Bachelor's degree in Biology, a Master's degree in Zoology, and a Ph.D. in Conservation Biology. In addition to teaching experience, publications and presentations at professional meetings, Dr. White has been employed since 1995 as a biologist with the Department's Lake and River Enhancement Program, Division of Soil Conservation.

64. Dr. White testified that the use of a concrete seawall at this site would cause excessive turbulence due to increased wave reflection, a major factor causing the decrease of aquatic plant life and fish and wildlife habitat.

65. The Department's witnesses, Mr. Ledet and Dr. White, are qualified as experts, both by education, training and work experience, on the issue of whether significant environmental harm to Jimmerson Lake, a public freshwater lake, will result from the proposed project.

66. Testimony from the Department's witnesses, as well as the scientific literature entered into evidence, showed that the construction of additional concrete sea walls causes an increase in the cumulative effects of harm to the environment. Specifically, the Shoreline Protection Study of Exhibit J, p. 63, identifies the effect of concrete seawalls on wildlife. It provides that "potential impacts include the destruction of riparian and aquatic vegetation during construction, ...these structures permanently displace natural habitat and may reduce or eliminate overall vegetative cover that provides habitat for invertebrates, herptiles, and other wildlife."

67. Claimant countered the department's testimony with that of George Sedgewick, a concrete seawall installer who testified to have been in the business since 1950. In that time, Sedgewick stated that he had observed little damage to lakes from seawalls. He testified that any damage done to the lake is caused by property owners or people utilizing the lake, not the seawall.

68. Mr. Sedgewick's testimony regarding observations from constructing lake seawalls in Indiana over such a long period of time would be more persuasive if he were in the business of constructing seawalls of something other than just concrete. See Transcript pg. 44. Bias as to the utilization of only concrete seawalls and support of their construction to further business interests, tempers this witness' opinion and renders the opinion of little weight.

69. It must be concluded that the cumulative effect of damage would be measurable and obvious as the observance of areas wherein concrete seawalls exist is possible by site inspection. Measuring the effect of the damage is possible by evaluating water quality, the existence of aquatic and plant

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species. Review of all the testimony supports a finding that the concrete seawall would displace the rush at this site, potentially reduce or eliminate aquatic and wildlife habitat, and increase wave reflection, thereby supporting a finding that damage to natural or cultural resources would result from the placement of a concrete seawall on Kinder's property.

70. Secondarily, the individual or cumulative effects of any damage to the natural or cultural resources must be considered and a determination made whether recovery of affected resources is not likely to occur within an acceptable period.

71. Department witnesses testified that concrete seawalls create a situation wherein the natural resources of the area have difficulty recovering from in that concrete significantly alters or completely eliminates habitats for muskrats, snakes, bees, fish spawning areas and shoreline vegetation. The likelihood of recovery to these habitats and vegetation areas is minimal in that concrete would not allow for the return of these habitats and vegetation sites in the area of the seawall. The testimony by White indicated that recovery of habitat lost is possible with the use of glacial stone, but not concrete.

72. They further testified that ice damage occurring from the placement of the concrete occurs due to shifting pressures from the concrete, causing damage to adjoining property owners in the form of increased erosion. This fact would encourage those adjoining property owners to seek the approval to use concrete seawalls to prevent further damage to their property. Mr. Kinder agreed that his utilization of a concrete seawall would increase the likelihood that other concrete seawalls will be requested.

73. The evidence that the recovery of affected resources is not likely within a reasonable period is supported by the record.

74. Lastly, the question of whether the cumulative effect of the damage can be adequately mitigated through the implementation of a mitigation plan approved by the director must be decided.

75. The evidence presented by the department indicates that there is no means to mitigate damage caused by concrete in that shoreline vegetation obliterated by the wall may not be recovered, nor can the shoreline habitat at the site wherein the wall is to be placed. See Transcript of Ledet testimony at 65. Ledet testified that he knows of no way to mitigate the harm or damage created by placing the concrete seawall once the concrete is in place.

76. The evidence presented at hearing clearly supports the Department's determination that significant environmental harm will result if a concrete sea wall is constructed.

77. Based on the finding that significant environmental harm would result from the construction of Kinder's concrete seawall, the director may not issue a permit under 310 IAC 6-2-15(g). The Department's denial of a permit for construction of a concrete sea wall should be upheld.

78. A permit for construction of a glacial stone sea wall on the project shoreline, subject to the conditions provided in the Department's Hearing Exhibits A-8 and A-14, is approved by the Department.


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STEUBEN SUPERIOR COURT FINDINGS OF FACT, CONCLUSIONS OF LAW, AND ORDER:

On June 23, 1997, the Indiana Department of Natural Resources (DNR) filed a Petition for Judicial Review of a Natural Resources Commission's (NRC) final order granting a seawall construction permit to respondent, Joan A. Kinder. Thereafter, respondent filed her answer to the Petition for Judicial Review on August 27, 1997. She later filed a Motion for Summary Judgment contending that no genuine issues of material fact exist in this case and that the NRC's final order should be upheld. Petitioner filed a Response on December 24, 1997, and respondent filed her Reply on January 6, 1998.

After a hearing on respondent's Motion for Summary Judgment, held on January 13, 1998, and after consideration of the Motions, Response and Reply, the Court now finds the following:

(1) This Court has jurisdiction over the matter and the parties pursuant to Indiana Code section 4-21.5-5.

(2) Petitioner is the state agency authorized to issue permits to change the shoreline of public freshwater lakes and to administer and implement regulation and enforcement of the law concerning public freshwater lakes in Indiana through its Division of Water in accordance with the Lake Preservation Act, Ind. Code 14-26-2, and its implementing regulation set forth at at 310 IAC 6-2.

(3) Respondent owns lake front property on the shoreline of Jimmerson Lake, a public freshwater lake in Steuben County. Respondent applied for a permit from the DNR for construction of a concrete seawall on the shoreline of her property on Jimmerson Lake. The DNR denied the permit application, and Kinder sought administrative review of the DNR's denial of her seawall construction application.

(4) An administrative hearing was held on December 20, 1996, before an Administrative Law Judge (ALJ). On April 18, 1997, the ALJ entered his "Report, Findings of Fact and Non-final Order," which reversed the decision of the DNR denying respondent's seawall construction application.

(5) The NRC, as ultimate authority and the final decision-maker for the DNR, in Administrative Cause No. 96-036W, adopted, except for finding #49, the ALJ's "Report , Findings of Fact and Non-final Order" on May 23, 1997.

(6) Findings of Fact that may be construed as conclusions of law and conclusions of law that may be construed as findings of fact are so deemed.

(7) Indiana Rules of Trial Procedure, Rule 56, provides that summary judgment "shall be rendered forthwith if the designated evidentiary matter shows that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law."

(8) There are several rules applicable to seawall construction. For new seawalls, 310 IAC 6-2-16 provides that DNR may issue a permit for a new seawall if, among other requirements, "the seawall is constructed of concrete , steel piling or rock."

(9) Another rule applicable to seawall construction is 310 IAC 6-2-15 and states that the DNR shall "not issue a permit for a permanent structure except upon a written determination that shows . . . issuance of the permit would not result in significant environmental harm to the public freshwater lake."

(10) Significant environmental harm is defined at 310 IAC 6-2-12.5 and states "significant environmental harm" means damage to natural or cultural resources, the individual or cumulative effect of which is found by the director to be obvious and measurable (based upon the opinion of a professional qualified to assess the damage) . . ."

(11) Further, cumulative effect is defined at 310 IAC 6-2-2.5 and states "cumulative effect" means that impact on the environment which results from the incremental impact of the action when added to other past, present and reasonable foreseeable future actions regardless of what person undertakes the other actions."

(12) In addition, the Lake Preservation Act, Ind. Code 14-26-2-5 applies to new seawall construction because it mandates that "natural resources and the natural scenic beauty of Indiana are a public right ..." Natural scenic beauty is defined as " . . . the natural condition as left by nature without manmade additions or alterations."

CONCLUSIONS OF LAW

(1) The Final Order of the NRC contains findings on the issue of natural scenic beauty in accordance with Ind. Code 14-26-2-5 and the applicability of 310 IAC 6-2-16, the rule on new seawalls.

(2) The Final Order of the NRC is not in accordance with the law in that it does not make a written determination that building a concrete seawall on Jimmerson Lake will not cause significant environmental harm as required by 310 IAC 6-2-15(g).

(3) Because the Final Order does not make a determination as to significant environmental harm, it also is not in accordance with the law as it fails to consider (a) the cumulative effects of approving a concrete seawall on Jimmerson Lake and (b) the requirement that the damage to natural or cultural resources be based upon the opinion of a professional qualified to assess the damage.

(4) Further, the Final Order of the NRC is not based on substantial evidence in that it fails to reveal its analysis of the evidence presented by the DNR with respect to expert testimony and the reports regarding the impact of concrete seawalls on public freshwater lakes against the evidence presented by Kinder, in light of the requirement for expert testimony on the issue of "significant environment harm."

ORDER

IT IS THEREFORE ORDERED, ADJUDGED AND DECREED that respondent's Motion for Summary Judgment should be and hereby is denied. This matter shall be remanded to an Administrative Law Judge to make further findings consistent with 310 IAC 6-2-15, 310 IAC 6-2-16, 310 IAC 6-2-12.5, 310 IAC 6-2-2.5 and on the issue of expert testimony in light of the above regulatory provisions.