Regulatory Requirements of the Lake Preservation Act Alysson Oliger - PDF document

6/12/2019 June 8, 2019 Regulatory Requirements of the Lake Preservation Act Alysson Oliger Compliance Coordinator Division of Water Lake Preservation Act (IC-14-26-2) Lake Rules (312 IAC 11) • Declares the natural resources and the natural scenic beauty of Indiana a public right • Holds lakes in trust for recreational use by the citizens of Indiana • Requires approval for projects over, along, or lakeward of the shoreline and for certain walls within 10’ of the shoreline 1

6/12/2019 Lake Preservation Act & Public Freshwater Lake Rules • 1947: Lakes Preservation Act is established. Permit required for any project proposed along or lakeward of the shoreline and below the legal or normal water level • 2000: General License criteria is added to the Public Freshwater Lakes Rules. Certain temporary piers and glacial stone reface projects are allowed by rule (no permit application and review process) • 2005: Group pier requirements are added to the Public Freshwater Lakes Rules • 2008: Lawful Nonconforming Use process outlined in rules (grandfathered certain long piers); created process for owners to request the DNR declare a lake a public freshwater lake; created the public freshwater lake list • 2011: Aerator rules added to Public Freshwater Lake Rules • 2013: Changed permit duration for LARE projects to 5 years; allowed permit duration for dredging projects to be extended 2 years What is a Public Freshwater Lake? “Public freshwater lake" means a lake that has been used by the public with the acquiescence of a riparian owner. Does not include: - Lake Michigan - A lake within the corporate boundaries of East Chicago, Gary, or Hammond - A privately owned body of water used for the purpose of, or created as a result of, surface coal mining Refer to the NRC’s Nonrule Policy listing of Public Freshwater Lakes: http://www.in.gov/nrc/2375.htm 2

6/12/2019 DNR’s Jurisdiction A person may not change the level of the water or the shoreline of a public freshwater lake by: • excavating; • filling in; or • otherwise: a) causing a change in the area or depth of; or b) affecting the natural resources, scenic beauty, or contour of the lake below the waterline or shoreline without having a written permit issued by the department. DNR’s Jurisdiction Projects are reviewed for their impact to: • the public’s right to the natural resource, recreational use, and scenic beauty of the lake; • the water level or contour of the lake below the waterline; • fish, wildlife, or botanical resources; and • the cumulative effects of the above items. 3

6/12/2019 "Shoreline or water line" means: (1) if the water level has been legally established, the line formed on the bank or shore by the water surface at the legally established average normal level; or (2) if the water level has not been legally established, the line formed by the water surface at the average level as determined by: (A) existing water level records; or (B) if water level records are not available, the action of the water that has marked upon the soil of the bed of the lake a character distinct from that of the bank with respect to vegetation as well as the nature of the soil. List of Legal and Average Normal Lake Levels: http://www.in.gov/dnr/water/5068.htm DNR’s authority is confined to the area at or lakeward of the shoreline of the lake, and within 10 feet of the shoreline if an impermeable structure (wall) is proposed below the Legal Lake Level (LLL). 4

6/12/2019 Natural Shoreline “Natural shoreline" means a continuous section of unaltered shoreline or water line where the distance between lawful permanent structures is at least two hundred fifty (250) feet. Significant Wetland “Significant wetland" means a transitional area between terrestrial and deep-water habitats containing at least two thousand five hundred (2,500) square feet of contiguous, emergent vegetation or rooted vegetation with floating leaves landward or lakeward of the shoreline or water line. The areal extent of the vegetation is independent of ownership. 5

6/12/2019 “Significant wetland" can also be determined by: • Adjacent wetland areas designated by a federal or state agency under one of the following: (A) National Wetlands Inventory. (B) U.S. Army Corps of Engineers Wetlands Delineation Manual (1987). (C) National Food Security Act Manual (1994). • The existence of a species listed at 15 IR 1312 in the Roster of Indiana Animals and Plants that are Extirpated, Endangered, Threatened, or Rare Area of Special Concern "Area of special concern" means an area that contains at least one (1) of the following characteristics: (1)An altered shoreline where bulkhead seawalls are at least two hundred fifty (250) feet apart. (2)Bogs, fens, muck flats, sand flats, or marl beaches identified by the division of nature preserves in the Natural Community Classification System. (3)More than six hundred twenty-five (625) square feet of contiguous emergent vegetation or rooted vegetation with floating leaves. 6

6/12/2019 Area of Special Concern • Altered Shoreline • Vegetation is at least 625 square feet in area • Vegetation is less than 2500 square feet in area Area of Special Concern � Altered Shoreline � Bulkhead seawalls at least 300’ apart 7

6/12/2019 Developed Area "Developed area" means the upland side or sides of a manmade channel or an area that does not contain any of the following characteristics: (1) An area of special concern. (2) A significant wetland. (3) A natural shoreline. Developed Area � Altered Shoreline � Bulkhead seawalls less than 300’ apart 8

6/12/2019 Developed Area • Bulkhead seawall at site • Less than 625 square feet of vegetation Developed Area Man-made Channel 9

6/12/2019 Developed Area Man-made Channel Common Projects • New Seawalls • Significant Wetland and Natural Shoreline: bioengineered • Area of Special Concern: glacial stone or bioengineered • Developed Area: glacial stone, bioengineered, concrete, steel sheet piling, or riprap • Seawall Refaces • Underwater Beaches • Significant Wetland and Natural Shoreline: not allowed • Area of Special Concern: maximum size = 625 square feet • Developed Area: maximum size = ½ the length of frontage and 50’ lakeward • Dredging • Piers 10

6/12/2019 General Licenses • Temporary Piers • Aerators • Dry Hydrants • Glacial Stone Refaces General Licenses: Piers � Must be temporary � Must be placed by a riparian owner (or with written approval from a riparian owner) � Cannot extend beyond 150’ from the shoreline * � Cannot infringe adjacent access or restrict navigation � Does not apply to group piers or marinas * Specific criteria in the rule; some exceptions 11

6/12/2019 Riparian Rights General Licenses: Aerators • Can only operate from March to October • Must install safety signs • Effects of aerator cannot extend beyond 150’ (or beyond the owners’ riparian zone) • Cannot remove more than 625 square feet of vegetation 12

6/12/2019 General Licenses: Glacial Stone Reface • Existing seawalls can be refaced with glacial stone • Cannot extend more than 4’ lakeward from existing wall • Shoreline classification not needed • No impermeable material behind the reface Common Violations of the Lake Preservation Act • Pier Violations/Riparian Rights • Seawalls • Taking of the lake (fill) • Dredging 13

6/12/2019 Common Violations: Piers • Must have riparian rights to place a pier • Cannot infringe on adjacent riparian owners’ ability to access the lake • Cannot create a navigation hazard Common Violations: Seawalls • Only certain types of seawalls are allowed in certain shoreline classifications • Seawalls require a permit, with the exception of glacial stone reface projects that comply with the general license 14

6/12/2019 Common Violations: Fill & Taking of the Lake • Fill is not allowed lakeward of the shoreline as it takes the lake away from the public’s use • Fencing off areas of the lake is not allowed for the same reason Common Violations: Dredging • Working without a permit • Timeline restrictions 15

6/12/2019 Reporting a Violation • Contact the DNR Division of Water’s Compliance Section at watercompliance@dnr.IN.gov • Information to Include: • Description of activity observed • Location • Property Owner Name and Mailing Address • Violator Information • Photos • Dimensions of area disturbed • Any other pertinent information • Contact Law Enforcement when needed Questions? Contact the Division of Water: • Water_inquiry@dnr.IN.gov • Toll-free: 877-928-3755 Contact Alysson: • aoliger@dnr.IN.gov • Phone: 317-234-1097 or toll-free number above Report a Violation: • watercompliance@dnr.IN.gov • Toll-free number above 16