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The General Assembly empowered the Department of Natural Resources with the responsibility to oversee various construction activities within, over and/or under the State's waterways through the creation of a number of regulatory programs. These statutes were enacted to allow the State's water related resources to be utilized in a prudent manner while simultaneously minimizing induced flood related damages and protecting Indiana's environmental and cultural resources.
The Lakes Preservation Act (IC 14-26-2) regulates any development activity which occurs at or lakeward of a public freshwater lake’s legal or average normal shoreline by requiring a permit from the DNR prior to the beginning of the project. DNR authority under the Lakes Preservation Act is further defined in 312 IAC 11: Public Freshwater Lakes (pdf document).
The Lakes Preservation Act states that the natural resources and natural scenic beauty of Indiana's public freshwater lakes are a public right. It further states that the general public "has a vested right in the ... preservation, protection, and enjoyment of all public freshwater lakes ... in their present state" and in the "... use of the public freshwater lakes for recreational purposes". To ensure that these rights are preserved, the Act provides the State with "... full power and control of all of the public freshwater lakes" and mandates that the State hold and control "... all public freshwater lakes in trust for the use of all citizens of Indiana".
The Legislature created a permitting program within the Lakes Preservation Act to provide the State with the authority to fulfill its statutory obligation. Section 6 of the Act details this program by stating that "a person may not change the level of the water or the shoreline of a public freshwater lake by ... excavating; filling in; or otherwise causing a change in the area or depth of; or affecting the natural resources, scenic beauty, or contour of; the lake below the waterline or shoreline without a written permit issued by the Department". Simply stated, any activity that occurs at or lakeward of a public freshwater lake's legal or average normal shoreline requires the written authorization of the Department prior to project initiation.
The Public Freshwater Lakes Rule, 312 IAC 11, provides design and performance standards for projects that are subject to regulation under the Lakes Preservation Act. They contain definitions of key terms, criteria for both temporary and permanent structures, as well as information regarding innovative practices and nonconforming uses.
Activities regulated by the Department under the Lakes Preservation Act include any project that will result in an alteration of a lake's bed or shoreline. Typically this includes, but is not limited to; dredging, new seawalls, seawall refacing, underwater beaches, boat wells, boat houses, and fish attractors. The installation and removal of a temporary pier is authorized without a permit provided the provisions of 312 IAC 11-3-1 are satisfied. However, if a pier dispute arises which requires the intervention of the Department then all parties to the dispute will be required to obtain a permit in order to install their piers.
Lake fills and permanent piers are viewed by the Department as a taking of the lakebed and are, therefore, contrary to the fundamental tenets of the Lake Preservation Act. The Act states that the public has a vested right in the preservation, protection, and enjoyment of all public freshwater lakes in their present state, and requires the State to hold and control the lakes in trust for the use of all citizens. It is the Department's position that projects of this nature cannot be approved unless the applicant can clearly demonstrate that a substantial public benefit will result due to the project's construction.
In evaluating a proposed project, Department staff assess both its singular and cumulative impact on the lake and its resources using the criteria outlined in the Act; natural resources, natural scenic beauty, and recreational purpose. These terms are defined as follows:
"natural resources" means the water, fish, plant life, and minerals in a public freshwater lake.
"natural scenic beauty" means the natural condition as left by nature without manmade additions or alterations.
"recreational purpose" means fishing, boating, swimming, and the storage of water to maintain water levels.
The criteria evaluated during a project's assessment include:
As an aide in evaluating the acceptability of a project, the Department developed a series of maps which illustrate zones of special concern within and along the public freshwater lakes. These maps were published as a nonrule policy document in the Indiana Register, Volume 19, Number 4, (19 IR 940) on January 1, 1996 under the title "Natural Resources Commission, Information Bulletin #10, Wetlands Within Public Freshwater Lakes". The maps are not inclusive of all public freshwater lakes in the State. For lakes that have not been mapped, the Department will evaluate a project's impact on a case-by-case basis.
The Lakes Preservation Act stipulates that the following lakes are exempt from regulation under its provisions:
Additionally, it exempts the following project types:
An exemption granted under the Lakes Preservation Act does not circumvent any other State, federal, or local permitting requirement. The responsibility to obtain all other permits rests solely with the applicant.
The Lowering of Ten Acre Lakes Act (IC 14-26-5) regulates all ditch and/or drain work that is both located within ½ mile of a freshwater lake’s shoreline and has a bottom depth below the lake’s normal water level by requiring a permit from the DNR prior to the beginning of the project.
The Lowering of Ten Acre Lakes Act states that a person may not "... locate, make, dig, dredge, construct, reconstruct, repair, or reclean ... a ditch or drain having a bottom depth lower than the normal water level of a lake within one-half (½) mile of the lake without a permit from the department". Additionally, it restricts a person's ability to "... order or recommend the location, establishment, construction, reconstruction, repair, or recleaning" of a ditch and/or drain under the same conditions.
The Act's regulatory program was established to provide safeguards against the lowering of a freshwater lake's water level as the result of a ditch and/or drain activity. Although it may seem excessive to extend the area of regulatory control up to ½ mile landward of the shoreline, many of the lakes in northern Indiana are underlain by, and connected to, sand and/or gravel lenses. The penetration of a lens while performing work on a ditch and/or drain could result in a lowering of the lake's level and related environmental damage. To safeguard against this potential, the Legislature mandated that all ditch and/or drain work meeting the Act's criteria be regulated by the Department.
Under the provisions of the Act, the Department regulates all ditch and/or drain work that is both located within ½ mile of a freshwater lake's shoreline and has a bottom depth below the lake's normal water level. The location of the ditch and/or drain with respect to the lake (entering, exiting, under or alongside) has no bearing on the regulatory requirement. Regulated activities typically include: ditch construction and/or reconstruction; tile drain installation and/or repair; and the installation of pipelines having non-watertight joints.
In assessing a project, the Act requires that the Department evaluate its impact on "... land, water, lakes, fish, wildlife, and botanical resources that may be affected by the proposed work". This is accomplished through the following criteria:
The Flood Control Act (IC 14-28-1) regulates various development activities (e.g. structures, obstructions, deposits, and/or excavations) within the floodway of any State waterway by requiring DNR approval prior to the beginning of the project. DNR authority under the Flood Control Act is further defined in 312 IAC 10: Floodplain Management .
In the Flood Control Act's preamble, the General Assembly declared that "... the loss of lives and property caused by floods and the damage resulting from floods is a matter of deep concern to Indiana affecting the life, health, and convenience of the people and the protection of property". Furthermore, "... the channels and that part of the flood plains of rivers and streams that are the floodways should not be inhabited and should be kept free and clear of interference or obstructions that will cause any undue restriction of the capacity of the floodways".
The Assembly created a permitting program within the Act to ensure that "... all flood control works and structures and the alteration of natural or present watercourses of all rivers and streams in Indiana ... be regulated ... according to sound and accepted engineering practices so as to best control and minimize the extent ... and reduce the height and violence of floods ...". The fundamental provisions of the Act's regulatory program are as follows:
The regulatory flood and the floodway are key components of the Department's jurisdictional authority. These terms are defined as:
"regulatory flood" means "the flood having a peak discharge which can be expected to be equaled or exceeded on the average of once in a one hundred (100) year period, as calculated by a method and procedure which is acceptable to and approved by the commission. This flood is equivalent to a flood having a probability of occurrence of one percent (1%) in any given year. The term is also sometimes referred to as the one hundred (100) year frequency flood". "Commission" as used in the definition means the Natural Resources Commission, however, in practice the Department makes the determination of acceptability.
"floodway" means "the channel of a river or stream and those portions of the flood plains adjoining the channel which are reasonably required to efficiently carry and discharge the peak flow of the regulatory flood of any river or stream".
The Department's regulatory authority under the Flood Control Act is limited to the area within the floodway produced by the regulatory flood. Many of these floodways have been delineated through studies performed for the National Flood Insurance Program. These floodway maps are generally available for public inspection in the local plan commission's office or building commissioner's office. They are also available in the Division of Water's office.
Floodways exist for all waterways even if they have not been mapped. It should not be assumed that because the floodway of a watercourse is unmapped that the Department does not have any regulatory authority under the Flood Control Act. If a project is proposed in an unmapped area, consultation with the Division of Water staff is advised.
The Floodplain Management rule, 312 IAC 10, was promulgated not only for the Flood Control Act but for the Flood Plain Management Act (IC 14-28-3) as well. As such, it includes material that is not directly related to the administration of the Flood Control Act. However, it does contain jurisdictional information, key definitions, project performance standards, and design criteria for specific regulatory exemptions.
In any instance where language in the rule conflicts with the provisions of the Flood Control Act, the wording in the Act takes precedence over that of the rule.
The Act's regulatory program requires the Department to oversee various activities (e.g. structures, obstructions, deposits, and/or excavations) within the floodway of any State waterway. Regulated activities typically include, but are not limited to; bank protection, bridges, buildings, channel work, dams, excavations, fills, flood control projects, levees, outfalls, residential construction, and certain utility activity.
Through the phrase "... the applicant has clearly proven ..." the Flood Control Act vests the responsibility with the applicant to prove that a project is approvable. Using the applicant submitted documentation, the Department determines a project's approvability by evaluating both its singular and cumulative impacts against the criteria stipulated in the Act:
Critical to the evaluation of these criteria are the performance standards upon which they are based. The rule defines the terms as follows:
As was stated, the Department must assess not only a project's individual effect but its cumulative effect as well. The term is defined by rule as:
If a project subject to permit under the Flood Control Act is also located within a navigable waterway, it does not require a separate permit under the Navigable Waterways Act provided the Navigable Waterways Act evaluation criteria are applied as well. Therefore, in addition to the criteria prescribed by the Flood Control Act, the following criteria must also be assessed:
The Flood Control Act exempts a number of projects either by rule or as a function of the watershed's physical parameters or the project type. An exemption granted under the Flood Control Act does not circumvent any other State, federal, or local permitting requirement. The responsibility to obtain all other permits rests solely with the applicant.
The Navigable Waterways Act (IC 14-29-1) regulates various development activities (e.g. structures, water withdrawal, and mineral extraction) from a navigable waterway by requiring a permit from the DNR prior to the beginning of the project. DNR authority under the Navigable Waterways Act is further defined in 312 IAC 6: Navigable Waterways.
The General Assembly charged the Department of Natural Resources with oversight of the State's navigable waters in the Powers and Duties of the Department Act, IC 14-19-1-1 (9), by stating "... the Department shall ... have general charge of the navigable water of Indiana". To carry out this regulatory responsibility, the Assembly created several permitting programs, including Section 8 of the Navigable Waterways Act. This provision requires that a person obtain a permit from the Department prior to initiating certain activities within a navigable waterway.
Fundamental to the Department's administration of the Act's regulatory program is the definition of navigable waterway and the limit of jurisdictional authority.
The Navigable Waterways rule, 312 IAC 6, contains definitions, standards, and permit information relative to the administration of the Navigable Waterways Act.
For a person, other than a public or municipal water supply utility, the Act requires that a permit be obtained from the Department for the; placement, filling, or erection of a permanent structure in; water withdrawal from; or material extraction from; a navigable waterway. Regulated activities include, but are not limited to; bridge foundations, piers, seawalls, mineral extraction, etc.
To determine if a proposed project is approvable, the Department evaluates a project's impact using the criteria prescribed within the Act:
The Navigable Waterways Act's regulatory program contains a number of exemptions to minimize duplicity of regulation. Specifically, a permit under the Act is not required if a permit has been obtained under any of the following State statutes and the requirements of the Navigable Waterways Act have been applied in the project review.
Division of Historic Preservation and Archaeology Act (IC 14-21-1)
Flood Control Act (IC 14-28-1)
Sand and Gravel Permits Act (IC 14-29-3)
Construction of Channels Act (IC 14-29-4)
Surface Coal Mining and Reclamation Act (IC 14-34)
Oil and Gas Act (IC 14-37)
An exemption is also authorized if a project has obtained a permit under any of the following federal programs:
Coastal Zone Management Act (16 USC 1451 et seq)
Clean Water Act (33 USC 1344)
Comprehensive Environmental Response, Compensation, and Liability Act (16 USC 1451 et seq)
An exemption granted under the Navigable Waterways Act does not circumvent any other State, federal, or local permitting requirement. The responsibility to obtain all other permits rests solely with the applicant.
The Sand and Gravel Permits Act (IC 14-29-3) regulates the activity of taking of sand, gravel, stone, or other mineral or substance from or under the bed of a navigable waterway by requiring DNR approval prior to beginning the project. DNR authority under the Sand and Gravel Permits Act is further defined in 312 IAC 6: Navigable Waterways .
The Legislature created this regulatory program to ensure that the citizens of Indiana are compensated for mineral resources extracted from or under the bed of the State's navigable waterways. The Department was charged with its administration as follows "... the Department may issue a permit to a person to take sand, gravel, stone, or other mineral or substance from or under the bed of the navigable water of Indiana".
The Department has prepared a roster of the State's navigable waterways (by waterway). The roster was printed as a nonrule policy document in the Indiana Register, Volume 15, Number 10, (15 IR 2385) on July 1, 1992 under the title "Natural Resources Commission, Information Bulletin #3, Roster of Indiana Waterways Declared Navigable". Inclusion in the roster does not necessarily indicate that a waterway is navigable, only that sufficient evidence exists to recognize them as such.
The Navigable Waterways rule, 312 IAC 6 contains definitions and permit information relative to the administration of the Act
The wording contained in the Sand and Gravel Permits Act is very concise relative to the regulated activity of taking "... sand, gravel, stone, or other mineral or substance from or under the bed of a navigable waterway". Most regulatory actions taken under this statute have been related to sand and gravel operations within the various waterways and the dredging of sand from the bed of Lake Michigan.
The Act stipulates 3 criteria that must be assessed prior to action:
A project subject to permit under this Act does not require a separate permit under the Navigable Waterways Act provided the Navigable Waterways Act evaluation criteria are applied as well. Therefore, in addition to the criteria prescribed by the Sand and Gravel Permits Act, the following criteria must also be assessed:
To avoid duplicity in permitting, the following mineral resources are exempt from the requirements of the Sand and Gravel Permits Act:
An exemption granted under the Sand and Gravel Permits Act does not circumvent any other State, federal, or local permitting requirement. The responsibility to obtain all other permits rests solely with the applicant.
The Construction of Channels Act (IC 14-29-4) regulates the construction of channels in the State by requiring written approval from DNR prior to beginning the project.
In Section 2 of the Construction of Channels Act, the General Assembly expressed its concern regarding channel construction along the State's waterways by recognizing that "... the unregulated construction of channels may be injurious to the public health, safety, and welfare ... " and by requiring that " ... the construction of these channels shall be regulated". To fulfill this mandate, the Assembly created a permitting program and vested it with the Department. The Act states that "... a person may not construct a channel before receiving the written approval of the Department".
Under the provisions of the Act, the construction of any channel in the State is regulated provided the channel meets the criteria outlined in the following definition:
"channel" means "an artificial channel; or the improved channel of a natural watercourse; connecting to any river or stream in Indiana for the purpose of providing access by boat or otherwise to public or private industrial, commercial, housing, recreational, or other facilities."
Before the Department can evaluate an application for a channel project, the applicant may be required to satisfy the following statutory obligations:
The acceptability of a channel project is a function of its evaluation relative to the following statutory criteria:
A project subject to permit under this Act does not require a separate permit under the Navigable Waterways Act provided the Navigable Waterways Act evaluation criteria are applied as well. Therefore, in addition to the criteria prescribed by the Construction of Channels Act, the following criteria must also be assessed: