E. LAUTHAIN, )
)
Petitioner, )
)
vs. ) CASE NO. 76-1960
)
DEPARTMENT OF ENVIROMENTAL ) REGULATION, STATE OF FLORIDA, )
)
Respondent. )
)
RECOMMENDED ORDER
Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, G. Steven Pfeiffer, held a public hearing in this case on February 16, 1977, in Gainesville, Florida.
The following appearances were entered: John Mussoline, of the firm Clark and Mussoline, Palatka, Florida, for the Petitioner, R. E. Lauthain; and Vance Kidder, Tallahassee, Florida, for the Respondent, Department of Environmental Regulation.
On or about June 23, 1976, R. E. Lauthain ("Petitioner" hereafter) filed an application for dredge and fill permit with the Florida Department of Environmental Regulation ("Respondent" hereafter) . A copy of the application was received in evidence at the final hearing as Hearing Officer's Exhibit 3.
By letter dated September 10, 1976, the Respondent gave notice of its intent to deny the application. The September 10 letter was received in evidence as Hearing Officer's Exhibit 4. Petitioner thereafter requested a hearing in accordance with Florida Statutes, 120.57(1). The petition submitted to the Respondent was received in evidence as Hearing Officer's Exhibit 1. In accordance with Florida Statutes, 120.57(1)(b)(3) the Respondent forwarded the petition to the Division of Administrative Hearings for the assignment of a hearing officer, and the scheduling of a hearing. The final hearing was scheduled by notice dated December 8, 1976. A copy of the notice of hearing was received in evidence as Hearing Officer's Exhibit 2.
Petitioner called the following witnesses: Marsha Elder, a field inspector employed by the Respondent; David B. Scott, a field inspector supervisor employed by the Respondent; the Petitioner; Early H. Clark, who resides next door to the Petitioner; and Josephine Clark, who resides next door to the Petitioner. The Respondent cross examined witnesses called by the Petitioner and called no additional witnesses. Hearing Officer's Exhibits 1 through 4, Petitioner's Exhibit 1, and Respondent's Exhibit 1 were received into evidence at the hearing.
In accordance with a briefing schedule established at the hearing, the parties submitted posthearing memoranda of law. In his memorandum, the Petitioner asserted for the first time during proceedings before the Division of Administrative Hearings that the Respondent is without jurisdiction to regulate
dredge and fill projects on Lake Serena through the permitting process. Due to the gravity of the contention, the undersigned directed, on March 16, 1977, that additional memoranda addressed to that issue be filed. The Respondent filed an additional memorandum on March 30, 1977.
FINDINGS OF FACT
The Petitioner owns property which fronts on Lake Serena in Putnam County, Florida. Petitioner has submitted an application to the Respondent to dredge an area waterward of the ordinary high water line of Lake Serena and to place the dredged material on another area waterward of the ordinary high water line. Approximately 13,000 square feet of surface area presently dominated by wetlands vegetation would be removed by the dredging activity. The Petitioner proposes to cover the area where the fill is deposited with white sand. Petitioner proposes to use the area as a sandy swimming beach. During the summer of 1976 the Petitioner commenced work on his proposed project without receiving a permit from the Respondent. The Respondent, through its agents, stopped the work, and this permit application proceeding ensued.
Lake Serena is a relatively pollution-free lake. Most of the littoral or transitional zone Vegetation surrounding the lake has been replaced by sandy swimming beaches. Only approximately forty percent of the shoreline is an aquatic vegetated littoral zone. Aquatic vegetation in the littoral zone surrounding the lake serves an important and natural function in preserving the water quality of the lake, and the natural resources of the lake including fish and wildlife. The aquatic vegetation serves to filter runoff from uplands areas by assimilating nutrients that are in the runoff. Lake Serena is an oligotrophic lake. It is relatively low in nutrients. Aquatic vegetation in the littoral zone serves in part to maintain this condition. If the condition is not maintained the buildup of nutrients would cause an algae bloom, or buildup of algae plants on top of the lake. A buildup of algae on the lake would drastically decrease the oxygen levels of the lake. The algae itself uses oxygen. The algae also kills oxygen producing plants which thrive on the bottom of the lake because the algae cuts off light to these plants. As the algae dies, it sinks and decomposes and uses up more oxygen. An algae bloom of this sort, and the resulting diminishing of oxygen levels in the lake would constitute pollution.
Removal of aquatic plants in the lake's littoral zone will also serve to diminish fish populations in the lake. Small fish use such an area as a nursery ground where they can hide from larger predators. The action of aquatic plants on nutrients also serves as an initial step in the food chain for fish.
The littoral zone which the Petitioner proposes to dredge and fill is apparently not in its natural state. There was no direct testimony respecting past dredging activity, but there was hearsay testimony to the effect that a previous land owner had dredged what amounts to a sand bar to serve as a boat slip. The entire area is now dominated by aquatic vegetation. It is a viable part of the littoral zone of the lake, and serves the beneficial purposes set out in Paragraph 2 above. There was no evidence offered at the hearing from which it could be determined with any degree of certainty that the Petitioner's proposed project would have any finitely measurable impact upon water quality or wildlife resources in Lake Serena. Removal of all such littoral zones would, however, drastically change the ecology of the lake, and render it polluted. Sixty percent of the lake's shoreline has already been denuded of vegetation. Although it cannot be determined how much more such action the lake will tolerate, it is clear that there is a limit. If the Petitioner's project were
granted, other similar projects would also be justified. Inevitably the lake's oligotrophic nature would be destroyed. While it cannot be concluded from the evidence that the Petitioner's project would have any precisely measurable effect upon water quality and upon the natural resources of Lake Serena, it can be determined that the only effect the project could have would be negative.
Petitioner has not established that the project would not have an adverse impact upon water quality and natural resources of Lake Serena.
Petitioner has apparently concluded that there is no other means for him to have a swimming beach on his property than through the project as he has proposed it. Other witnesses testified, however, that his property includes a site for a swimming beach on land that is not dominated by aquatic vegetation.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties to this action and over the subject matter.
An applicant for a dredge and fill permit has the burden of affirmatively providing reasonable assurance that the short term and long term effect of the project will not result in violations of the water quality criteria, standards, requirements and provisions of the Florida Statutes and the rules and regulations of the Respondent. Rule 17-4.28(3) Florida Administrative Code. The applicant also has the burden of establishing that the proposed project will not interfere with natural resources to such an extent as to be contrary to the public interest. Rule 17-4.29(6)(a Florida Administrative Code. The applicant has further burden of affirmatively establishing that the proposed project will be in the public interest. Young v. Askew, 293 So.2d 395 (1 DCA Fla. 1974)
The Petitioner has failed to establish that his proposed dredge and fill project will not result in violations of the water quality standards set out in the Florida Statutes and in Respondent's rules and regulations. The Petitioner has also failed to establish that his proposed dredge and fill project will not adversely affect the natural resources of Lake Serena. The evidence does not clearly establish that the proposed dredge and fill project will adversely affect the water quality or natural resources of Lake Serena; however, it is apparent from the evidence that the proposed project can only affect the lake adversely The Petitioner has failed to establish that his proposed project is In the public interest. In view of the fact that the Petitioner has other alternatives for constructing a swimming beach which would not interfere with the littoral zone vegetation of Lake Serena, the only interest that would be advanced through the proposed project is the Petitioner's private desire to have a very large swimming beach.
Petitioner has asserted that Respondent is without jurisdiction to regulate dredge and fill projects on Lake Serena through the permitting process. Petitioner contends that the Respondent has failed to establish that Lake Serena is a navigable body of water, and that therefore Respondent lacks the authority to deny a permit in this case. In support of its contention Petitioner cites Odom v. The Deltona Corporation, 341 So.2d 977 (Fla. 1976). Petitioner's contention is without merit for several reasons. In the first place, the contention has been raised for the first time in posthearing legal memoranda.
By filing a permit application the Petitioner has inferentially indicated that he desires a permit, and that issuance of a permit by the Respondent would be a proper exercise of the Respondent's authority. If the Petitioner is seeking a declaration as to the Respondent's authority to issue or deny permits for dredge
and fill projects in Lake Serena, he has chosen the wrong forum. If the Petitioner does not desire a permit from the Respondent he should not have applied for one. Petitioner does have an avenue for testing the Respondent's authority by filing a Declaratory Judgment Action in Circuit Court in accordance with Florida Statutes Chapter 86.
In the second place, navigability of Lake Serena is not the sole test of whether the Respondent has licensing authority. The Respondent's licensing authority is predicated upon Chapters 253 and 403, Florida Statutes (1975). Chapter 253 applies only to navigable bodies of water. Chapter 403, Part I, the "Florida Air and Water Pollution Control Act" applies to the "waters of the state", which are defined in section 403.031(3) as follows:
"'Waters' shall include, but not be limited to rivers, lakes, streams, springs, impoundments, and all other waters or bodies of water, including fresh, brackish, saline, tidal, surface, or underground."
Clearly Lake Serena falls within the ambit of Chapter 403.
Finally, the Petitioner has given too broad a construction to Odom v. The Deltona Corporation. The court held that the Board of Trustees of the Internal Improvement Trust Fund did not have valid claims to beds underlying the bodies of water involved in the case. In the instant matter the Petitioner does not appear to be contending that he owns the beds underlying Lake Serena. He therefore has no right to engage in any dredge and fill project below the ordinary high water line without the issuance of the proper permits.
The Petitioner's application for dredge and fill permit should be denied.
