STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ROBERT T. JOHNSTONE, )

)

Petitioner, )

)

vs. ) CASE NO. 76-2127

) STATE OF FLORIDA, DEPARTMENT ) OF ENVIRONMENTAL REGULATION, )

)

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 March 16, 1977, in Gainesville, Florida.

The following appearances were entered:

APPEARANCES

For Petitioner: John D. Mussoline, Esquire

Clark & Mussoline Post Office Drawer V

Palatka, Florida 32077

For Respondent: Vance Kidder, Esquire

Department of Environmental Regulation 2562 Executive Center Circle, East Montgomery Building

Tallahassee, Florida 32301

On or about June 28, 1976, Robert T. Johnstone ("Petitioner" hereafter) filed an application for dredge and fill permit with the Florida Department of Environmental Regulation ("Respondent" hereafter). By letter dated October 27, 1976, the Respondent gave notice of its intent to deny the application.

Petitioner thereafter requested a hearing in accordance with Section 120.57(1), Florida Statutes (1975). In accordance with Section 120.57(1)(b)(3), the Respondent forwarded the petition to the Division of Administrative Hearings for assignment of a hearing officer, and the scheduling of a hearing. The final hearing was scheduled by notice dated January 12, 1977.

A copy of the Petitioner's application for dredge and fill permit was received in evidence as Hearing Officer's Exhibit 3. Copies of the Respondent's Notice of Intent to Deny, the Petitioner's Request for Hearing, and the Respondent's Request for Assignment of Hearing Officer were received in evidence as Hearing Officer's Exhibit 1. A copy of the Notice of Hearing was received in evidence as Hearing Officer's Exhibit 2.

Petitioner called the following witnesses: David Scott, a field inspection supervisor employed by the Respondent; the Petitioner; and Philip M. Seigler, a resident of Putnam County, Florida, who owns land adjacent to the Petitioner's proposed project. The Respondent called David Scott as its only witness.

Hearing Officer's Exhibits 1-3, and Petitioner's Exhibits 1-6 were offered into evidence and were received. The parties have submitted Post-Hearing Memoranda of Law.

FINDINGS OF FACT

1. The Petitioner owns property which is adjacent to Lake Serena in Putnam County, Florida. Through his application to the Respondent, the Petitioner is seeking 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. The purpose of the proposed dredging and filling is to create a more gradual shoreline sloping from the Petitioner's residence to the shore of Lake Serena. Petitioner proposes to cover the filled area with white sand. He proposes to use the area as a sandy swimming beach. The area which the Petitioner is proposing to dredge and fill is presently dominated by wetlands vegetation, which would be removed by the dredging activity. The Petitioner originally commenced his project without receiving any permit from the Respondent. A large amount of the wetlands vegetation has already been removed.

   
   

2. Lake Serena is a relatively pollution-free lake. Much 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 now an aquatic vegetated littoral zone. Aquatic vegetation in the littoral zone surrounding Lake Serena serves an important natural function in preserving the water quality in the lake, and in preserving the natural resources of the lake, including fish and wildlife. The aquatic vegetation serves to filter run-off from uplands areas by assimilating nutrients that are in the run-off.

   
   

3. A nutrient scale has been devised for identifying the amount of nutrients in a lake. An oligotrophic lake is low in nutrients. A mezotrophic lake has a moderate amount of nutrients. A eutrophic lake is high in nutrients. In the natural process of aging, water bodies progress from oligotrophic to a eutrophic state. This is a very long natural process taking thousands of years. Lake Serena is an oligotrophic lake. Aquatic vegetation in the littoral zone surrounding Lake Serena serves to maintain this condition. If too much aquatic vegetation is removed from the littoral zone, a buildup of nutrients would result. This buildup of nutrients would cause an algal bloom, or a buildup of algae plants on top of the lake. A buildup of algae on the lake would drastically decrease the oxygen level of the lake. This is because algae itself uses oxygen, because algae kills oxygen producing plants which thrive on the bottom of the lake due to light being cut off, and because, as the algae dies, it sinks and decomposes using up more oxygen. An algal bloom, and the resulting reduction of oxygen levels in a lake would constitute pollution.

   
   

4. Removal of aquatic plants in Lake Serena's littoral zone would serve to diminish fish and wildlife populations in the lake. Small fish use such an area as a nursery ground where they can hide from predators. Without such a nursery ground, the cycle of survival for aquatic wildlife would be cut off.

   
   

5. The area from which the Petitioner has already removed considerable wetlands vegetation, and proposes to remove more, is a viable part of the littoral zone of Lake Serena. The area serves the beneficial purposes set out

   in Paragraph 2 above. It cannot 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. Certainly removal of all such littoral zones would drastically change the ecology of the lake and render it polluted. Sixty percent of Lake Serena's shoreline has already been denuded of vegetation. Although it cannot be determined precisely 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. The only effect that the Petitioner's project could have upon the water quality and natural resources of Lake Serene is negative. No evidence was offered at the hearing from which it could be determined that the Petitioner's proposed project would not have an adverse impact upon the water quality and natural resources of Lake Serene.

   
   

6. In its notice of intent to deny, Respondent asserted that the proposed project would be expected to degrade the water quality of Lake Serena, and to violate water quality standards because turbidity levels would exceed permissible limits. Respondent is contending that during the pendency of the project turbidity levels will be too high. At the present time the water level of Lake Serena is two to three feet below the ordinary high water line. The area Petitioner proposes to dredge and the area he proposes to fill, while below the ordinary high water line, are above the present water line. From the evidence it appears that steps could be taken so that the proposed project could be accomplished without exceeding permissible turbidity levels.

   
   

7. The only purpose that would be served by the Petitioner's proposed project is to provide Petitioner with a sandy swimming beach rather than a natural shoreline.

   
   

   CONCLUSIONS OF LAW

   
   

8. The Division of Administrative Hearings has jurisdiction over the parties to this action, and over the subject matter. Section 120.57(1), Florida Statutes (1975).

   
   

9. 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 cause pollution, and 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. Rules 17-4.07(1), 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 the 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).

   
   

10. 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 the Respondent's rules and regulations. The Petitioner has also failed to establish that his proposed project will not adversely affect the natural resources of Lake Serena. It is apparent from the evidence that the proposed project can only have an adverse affect upon the water quality and natural resources of Lake Serena.

11. The Petitioner has failed to establish that his proposed project is in the public interest. The only interest that would be advanced through the proposed project is the Petitioner's private desire to have a white sand swimming beach rather than a natural lake shore.

    
    

12. The 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 his contention Petitioner cites Odom v. The Deltona Corporation, 341 So.2d 977 (Fla. 1976)

    
    

13. Petitioner's contention is without merit for several reasons. In the first place, the contention has been raised for the first time subsequent to the hearing in 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 he has other means than through the seeking of a permit to attack the Respondent's jurisdiction. Assuming that it would be proper for the Petitioner to attack the Respondent's jurisdiction through a permit application, the contention would need to be raised in the original permit application.

    
    

14. 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 of the Florida Statutes. Chapter 253 applies only to navigable bodies of water. Chapter 403, Part I, which is known as the "Florida Air and Water Pollution Control Act" applies to "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.

    
    

15. Finally, the Petitioner has given too broad a construction to Odom v. The Deltona Corporation. The court held in that case 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 Serene. It affirmatively appears that the entire area in which the Petitioner's dredge and fill project is located is not owned by the Petitioner.

    
    

16. The Petitioner's application for dredge and fill permit should be denied, and the Petitioner should be required to resore the area already dredged as nearly as practicable to its natural condition.

RECOMMENDED ORDER

Based upon the foregoing Findings of Fact and Conclusions of Law, it is, RECOMMENDED:

That a final order be entered denying the Petitioner's application for dredge and fill permit, and requiring the Petitioner to restore the area already dredged as nearly as practicable to its natural condition.

RECOMMENDED this 19th day of April, 1977, in Tallahassee, Florida.

G. STEVEN PFEIFFER, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304

(904) 488-9675

COPIES FURNISHED:

Vance W. Kidder, Esquire Department of Environmental

Regulation

2562 Executive Center Circle, East Montgomery Building

Tallahassee, Florida 32301

John D. Mussoline, Esquire Post Office Drawer V Palatka, Florida 32077

Docket for Case No: 76-002127

Orders for Case No: 76-002127