ORDER
The denials of permit applications PL-16,721 and PL-16,723 by the Department are upheld. Permit applications PL-16,721 and PL-16,723 are approved for construction of glacial stone sea walls, subject to the conditions of the Department's Exhibits A-12 and B-12, respectively.
FINDINGS OF FACTS
BACKGROUND FACTS
1. IC 4-21.5, the Administrative Orders and Procedures Act ("AOPA") and IC 14-26 apply to these proceedings.
2. The Department of Natural Resources, ("Department"), is the state agency responsible for regulating the bed and shoreline of public freshwater lakes under IC 14-26 and 310 IAC 6.
3. The Natural Resources Commission ("Commission") is the ultimate authority within the meaning of IC 4-21.5 regarding matters arising from the department's decisions on permits involving public freshwater lakes.
4. Danny Putnam ("Putnam") and Robert Hootman ("Hootman") own adjacent properties situated on Pretty Lake in LaGrange County.
5. Pretty Lake is a public freshwater lake as defined by IC 14-26-2-3. A public freshwater lake is defined as a lake[Footnote 1] that has been used by the public with the acquiescence of a riparian owner. IC 14-26-2-3.
6. On or about November 1, 1995, Hootman filed an application with the department to construct a concrete seawall along approximately 90 feet of his Pretty Lake frontage property. Hootman presently has a stone seawall alongside the frontage of his property which he stated has been in place since approximately 1935. See Exhibits B25 through B28. Hootman testified that his intention in requesting concrete as the seawall material was to join an adjoining neighbor's concrete seawall and make a continuous wall with Putnam on the opposite side in hopes of creating a neater, cleaner and easier to maintain seawall, while increasing his property values.
7. On the same date, November 1, 1995, Putnam filed an application with the department for a permit to construct a concrete seawall along approximately 120 feet of his Pretty Lake frontage property.[Footnote 2] Said application was requested in order to "stop ice damage & erosion" to his property. See Exhibits A26 through A31. Unlike Hootman, Putnam's property does not presently have a seawall. He indicated in testimony that his intention in constructing a concrete seawall is to slow erosion of the site wherein soils are washing into the lake, raise the yard level and avoid the maintenance of stones. See photographs in Exhibits 14 & 12.
8. On December 22, 1995 the department issued Incomplete Application Notices to Mr. Putnam and Mr. Hootman, indicating that the concrete sea walls requested would cause significant environmental harm to the natural resources and natural scenic beauty of the lake. See Exhibits A22 through A25 and B24 through B28. The notices recommended that Claimants use glacial stone instead of concrete for the seawall material.[Footnote 3]
9. On or about January 23, 1996, Claimants responded to the department's recommendation to use glacial stone and by letter advised the department of their intention to pursue the applications for concrete sea walls. Claimants informed the department
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that the basis for requesting concrete was due to "numerous West winds that cause considerable damage to shoreline[s]." Applicants further advised the department of the close proximity of a neighboring concrete seawall.[Footnote 4]
10. On March 22, 1996, the Claimants' applications were put on hold in order to allow department representatives to meet with the Pretty Lake Association. A meeting was held on July 7, 1996 and the testimony and documentation show the intent of the meeting was to inform lake property owners of the department's concerns with alterations to the shoreline and the health of the lake. See Exhibits A5 and B5.
11. On August 9, 1996, the department denied Claimants' permit applications and cited that significant environmental harm to the natural resources and natural scenic beauty of the lake would result if concrete sea walls were constructed.
12. At issue before this tribunal is whether the permit applications submitted by Putnam and Hootman were properly denied by the department. The application numbers of PL-16,721 for Putnam and PL-16,723 for Hootman will be hereinafter referred to as the "Permits" with reference made to the individual Claimant.
DE NOVO REVIEW
13. The administrative law judge is required to conduct "de novo review of evidence presented at administrative hearing, weighing evidence 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.
14. A hearing was held in this cause on May 11, 1998, 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. On June 15, 1998, the department filed the "Department's Proposed Report, Findings of Fact, Conclusions of Law and Nonfinal Order". The evidence presented during hearing is considered in rendering this decision.
PUBLIC FRESHWATER LAKES & NEW SEA WALLS
15. Pretty Lake is a public freshwater lake as defined by IC 14-26-2-3.
16. 310 IAC 6-2-16 provides that a permit is required for constructing a seawall within or along the shoreline or waterline of a public freshwater lake. It further states in section (b) that the division director may issue that permit if the wall will be constructed of concrete, steel piling or rock and the department determines that the lakeward face is along the waterline or shoreline; that the disturbed areas will be protected by vegetation or other means; and lastly, no wetlands are present or evidence does not show that wetlands recently existed.
17. This approval is also conditioned upon satisfaction of the requirements of 310 IAC 6-2-15 which sets standards for permitting permanent structures on public freshwater lakes. A permit from the department is required under 310 IAC 6-2-15, 310 IAC 6-2-16 and 310 IAC 6-2-17 for structures utilizing poured concrete, new sea walls and refaced sea walls, all of which qualify as "permanent structures" under 310 IAC 6-2-15.
18. Mr. Putnam presently has no seawall at his property and requests approval to construct a concrete seawall. Such a construction is a "new seawall"
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requiring a written permit under 310 IAC 6-2-16.
19. Mr. Hootman currently has a stone seawall in place and testified that the wall was constructed in approximately 1935. He seeks the replacement of that seawall with a concrete wall. 310 IAC 6-2-15(b) provides that a seawall consisting of "poured concrete" requires a permit as a permanent structure. Since Hootman seeks permission to construct a concrete sea wall, a permanent structure under 310 IAC 6-2-15, a permit is required.
"AREAS OF SPECIAL CONCERN"
20. Testimony provided that the Department began a mapping project of Indiana public freshwater lakes several years ago in order to streamline the permitting process and assist in implementing the Lake Preservation Law.[Footnote 5] See Nonrule Policy Document of Exhibit D and 2/5/96 Press Release of Exhibit C. The mappings were to be conducted on 52 of Indiana public freshwater lakes, and serve to depict the significant wetlands and "areas of special concern" along the shorelines of those public lakes. See Exhibit D. Neil Ledet, Fish and Wildlife biologist for the department, testified that "areas of special concern" include areas such as shorelines found to be in a natural state and areas wherein rare aquatic life is found.
21. Ledet testified that the mapping of Pretty Lake was begun prior to the applications submitted by Putnam and Hootman.[Footnote 6]
22. Ledet's duties include the review of public freshwater lake applications for Steuben, LaGrange and Elkhart counties, and he reviewed the permits submitted by Putnam and Hootman.
23. By memos of December 4, 1995 and May 3, 1996, Ledet provided recommendations on Pretty Lake to Keith Poole and/or Bill Maudlin of the Division of Fish and Wildlife. These memos and his testimony show that he recommended that no concrete, steel, plastic or wood sea walls be used on Pretty Lake, because the shoreline erosion was minimal, a 10 mph speed limit was in effect and because glacial stone dominates that lake, an attempt should be made to "keep it that way." He additionally stated that the proposed projects of Putnam and Hootman would result in the loss of fish, wildlife and botanical resources and impact the lakes scenic beauty. See Exhibit A-10 and B-13.
24. Ledet testified that the areas of Putnam and Hootman's properties were areas of "special concern" as most shoreline areas were in a natural state and further testified that approximately 75% of the lake properties have "natural" shorelines, free of man-made structures. See Respondent's Exhibit F-1 Mapping Findings of Pretty Lake.
25. Neil Ledet testified that in areas of "special concern", severe erosion might justify the approval of a concrete seawall. As the purpose of a seawall is for protection against soil erosion, the means necessary to achieve that protection, i.e. concrete, would be supported in the case of severe erosion.
26. No basis exists within the law Lake Preservation laws for a blanket denial of concrete in "areas of special concern." There is no indication in the Lake Preservation law that concrete is a per se disapprovable material for concrete seawall construction in "areas of special concern". Therefore, pending a change in the law, concrete is a potentially approvable material in areas the department has determined to be of "special concern."
NATURAL SCENIC BEAUTY
27. The department denied both Putnam's and Hootman's permit applications based on findings
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that significant environmental harm to the natural resources and natural scenic beauty of the lake would result if concrete sea walls were constructed. This tribunal must first determine whether construction of concrete seawalls at these sites will result in negative impacts or harm to the natural scenic beauty of Pretty Lake.
28. The statutory definition of the term "natural scenic beauty" is "...the natural condition as left by nature without manmade additions or alterations." IC 15-26-2-5(a).
29. The division indicating that natural scenic beauty would be impacted was the Division of Fish and Wildlife, as shown by Neil Ledet's December 4, 1995 memo in Exhibits A-13 and B-13. A second memo of May 3, 1996 indicates that there are "approximately 21 concrete seawalls present on Pretty Lake" In Mr. Ledet's opinion, "8-9 relatively new concrete walls located on the north shore should not have been permitted....Glacial stone dominates the Pretty Lake shoreline and we should try to keep it that way."
SIGNIFICANT ENVIRONMENTAL HARM TO NATURAL RESOURCES
30. 310 IAC 6-2-15 (g) disallows the director from issuing a permit for a permanent structure, except upon a showing that "[t]he permit...conforms with IC 13-2-11.1 [currently IC 14-8-2] and this rule." In order to issue such a permit, a determination must be made that "the issuance of the permit would not result in significant environmental harm to the public freshwater lake."
31. Therefore, in order to allow a permit for construction of a concrete seawall along Pretty Lake, the department must find that such an issuance would not result in "significant environmental harm".
32. "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."
33. The
following questions must be determined:
1) Are individual or cumulative effects of damage to
natural or cultural resources found to be obvious and measurable?
2) Do 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?
3) Can the effects of the damage be adequately
mitigated through the implementation of a mitigation plan? 3
34. "Cumulative effect" is defined at 310 IAC 6-2-2.5 as the "impact of 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."
35. 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.
36. Cumulative effects of both Putnam's and Hootman's concrete seawalls were considered in the hearing.
37. Dr. Gwen White, an employee of the Department's Division of Soil Conservation testified for the department. Evidence showed that Dr. White holds a Bachelor's degree in Biology, a Master's degree in Zoology, and a Ph.D. in Conservation Biology. She has been employed since 1995 as a biologist in the Department's Lake and River Enhancement Program.
38. The department witnesses, Mr. Ledet and Dr. White, are qualified as experts, both by education, training and work experience, on the issue of whether significant
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environmental harm to Pretty Lake, a public freshwater lake, will result from the proposed projects.
39. In evaluating the cumulative effects of a concrete seawall in this location, Dr. White testified that concrete will remove protective habitat for fish, food and shelter for fish. She indicated the plant life provided this food and shelter and opined that small fish feed within 3 feet of the shore. Glacial stone was testified as a material which allows the continuation of habitat and aquatic vegetation.
40. She testified that potential cumulative effects were also considered in relation to the potential for other construction projects on Pretty Lake similar to Putnam and Hootman. The consideration of individually minor effects of other landowners constructing concrete seawalls, combined with the effects of Putnam and Hootman's construction, may lead to significant, measurable and obvious effects to Pretty Lake.
41. Dr. White testified that additional concrete seawalls would compromise this area of Pretty Lake in that the lake's ability to recover from decreased fish habitats and vegetation would be "difficult if not impossible" to correct if damaged. She indicated this limited ability to recover is due to the unique nature of Pretty Lake. Dr. White indicated that the lake is 84 feet deep, and in such a configuration that any restoration would be difficult.
42. Unrefuted testimony showed that Pretty Lake is unable to mix well and remediate itself if pollutants are introduced into the lake because of the small surface areas, deep slopes surrounding the lake residential areas, and v-shaped narrow depth of the lake. See Exhibit P. A review of Pretty Lake by Earthsource, Inc., a company independent of the department, showed that increased removal of vegetation in the lake could reduce the kidney effect or flushing effect of the lake. See Exhibit O.
43. Site evaluation of the Putnam and Hootman property was conducted by Dr. White and Neil Ledet. They testified that Putnam's shoreline had some erosion, however, not severe enough to warrant concrete for use of the seawall. She further testified that a concrete seawall may increase the existing erosion problem as water appears to come from landside and a concrete seawall may cause ponding of the water behind the seawall, and it may lead to channels and property damage to Putnam and adjoining landowners.
44. Exhibits M and N additionally show that concrete may increase the amount of wave reflection on Pretty Lake, which may lead to scouring of the lakebed and damage to aquatic plant life. Glacial stone was shown to dissipate wave energy and decrease the scouring effect of the seawall.
45. Consideration of wave dissipation and the failure of a vertical concrete wall to allow for wave breakup at the shoreline by the increased surface area of the stones was considered by the department as testified by White. The use of concrete sea walls was considered to create wave reflection and scouring of the lakebed further causing damage to plant life at the lakebed and shoreline. See Exhibits L & M.
46. The scouring of the lakebed results in less plant growth and less habitation for fish near and around the bank.
47. White testified that the shallow shoreline area is critical for fish habitat in that the fringe areas are critical for fish feeding and spawning. Studies conducted in Ontario, Canada, as shown in Exhibit X, support this position. Therefore, the interface between land and water is a critical habitat.
48. Cumulative effects of a concrete seawall as described are effects which are obvious and measurable.
49. Do 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?
50. White testified that the nature of Pretty Lake with its V-shape and depth restricts restoration of the lake by dredging. She indicated that it would be "difficult if not impossible" to correct the lake if damaged.
51. Literature search material provided at hearing, indicates that bulkheads such as concrete seawalls "virtually erase the land-water ecotone with potentially dire
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consequences" for aquatic life. See Exhibit U.
52. Mr. Hootman testified in response to this finding and stated that fish will still breed and weeds will still grow at the base of a concrete seawall. The testimony of the Dr. White and the literature as provided in Exhibits U and N is highly persuasive evidence to the contrary, providing that the "potential impacts" of concrete seawalls 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.
53. The testimony of department witnesses and the literature presented at hearing, support a finding that cumulative effects of a concrete seawall on these sites, would create a condition where recovery of affected resources is not likely to occur within an acceptable period.
54. The potential elimination of vegetation and habitat at the site of concrete seawalls at these sites supports a conclusion that damage to those areas cannot be mitigated through implementation of a mitigation plan.
55. The record clearly supports the department's determination that significant environmental harm will result if Claimants construct concrete seawalls on these sites.
56. Based on the finding that significant environmental harm would result from these constructions, the director may not issue a permit under 310 IAC 6-2-15(g). Therefore, the department's denial of permits for these construction projects should be upheld.
57. Permits for the placement of glacial stone seawalls on the project shorelines, subject to the conditions provided by the Department's Exhibits A-12 and B-12, should be approved.
FOOTNOTES
1. Lake Michigan, privately owned bodies of water used for or created due to surface coal mining, and lakes lying within the corporate boundaries of any of the three cities having the largest population in a county having a population of more than 400,000 but less than 700,000 are excluded from the definition of public freshwater lakes.
2. Putnam indicated that he owns two adjoining lots which comprise the 120' lakefront area where he desires to place the concrete seawall.
3. While the department identifies this document as an Incomplete Application Notice, the department does not identify any missing items in either of Claimants' applications. A more appropriate name would be Notice of Recommendation, as the department recommended both applicants change the seawall material to glacial stone instead of concrete.
4. Claimants' letter indicated that the Putnam property was within approx. 220' of an existing concrete seawall while Hootman's was merely inches away from it. The existing concrete seawall neighboring Hootman's stone seawall is shown in Claimant's Exhibits 10, 11 and 4 photographs.
5. The Lake Preservation Law at the time of Claimants' petition was found at Ind. Code 13-2-11.1, recodified at Ind. Code 14-26-2.
6. Actual mapping of Pretty Lake is provided in Exhibit F-1.