Judges: G. STEVEN PFEIFFER
Agency: Department of Environmental Protection
Latest Update: Mar. 13, 1978
Summary: Set aside permit to fill in land by a lake that had receded; did not establish the ordinary high water mark was below fill line. Deny Petitioner`s request.
77-1346.PDFSTATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
DEFENDERS OF CROOKED LAKE, INC., )
)
Petitioner, )
)
vs. ) CASE NO. 77-1346
) STATE OF FLORIDA, DEPARTMENT ) OF ENVIRONMENTAL REGULATION, ) and JOHN MANGHAM, )
)
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 November 9, 1977, in Bartow, Florida.
The following appearances were entered: Jesse C. Barber, Bartow, Florida, for the Petitioner, Defenders of Crooked Lake, Inc.; Gerald P. Hill, Winter Haven, Florida, for the Respondent John Mangham; and Terry Cole, Tallahassee, Florida, for the Respondent Florida Department of Environmental Regulation.
On or about August 12, 1976, John W. Mangham ("Applicant" hereafter), acting on behalf of Mark C. Bolkcom, filed an application with the Florida Department of Environmental Regulation ("Department" hereafter) seeking the issuance of a permit allowing him to place approximately 3,900 cubic yards of fill material on areas located near to the present boundaries of Crooked Lake in Polk County, Florida. On July 7, 1977, the Department granted the application by issuing a permit. On July 22, the Defenders of Crooked Lake, Inc. ("Petitioner" hereafter) filed a petition to set aside the permit. The Department, acting in accordance with the provisions of Section 120.57(1)(b)(3) forwarded the petition to the office of the Division of Administrative Hearings for the assignment of a hearing officer and the scheduling of a hearing. The hearing was scheduled to be conducted on November 9, 1977, by notice dated August 10.
At the final hearing the Petitioner called the following witnesses: Philip
Bryan, a recreational user of Crooked Lake who has visited the area involved in this proceeding most weekends for the past ten to twelve years; Junior Lee Belcher, a registered land surveyor; Leland R. Bryan, an owner of property which borders on Crooked Lake, and also borders the property which is the subject of this proceeding; Russell E. Bowman, an owner of property which borders on Crooked Lake; James A. McCallister, an owner of property which borders Crooked Lake; Frederick Crabill, a permit review specialist employed by the Department; and Dr. Margaret Lois Gilbert, a professor of biology at Florida Southern College. Dr. Gilbert was accepted as an expert witness in the field of biology. The applicant appeared as a witness on his own behalf. The Department called the following witnesses: Mark Latch, an employee in the Department's Bureau of
Permitting; and Robert F. Shelton, a registered surveyor who is employed by the Department.
Hearing Officer's Exhibits 1-4, Petitioner's Exhibits 1-53, Mangham Exhibits 1 and 2, and DER Exhibits 1-5 were offered into evidence at the final hearing and were received. Official recognition was taken of the provisions of the Department's rules, Chapter 17, Florida Administrative Code, and of the provisions of Florida Statutes Chapters 177, 253, and 403. The applicant and the Petitioner have submitted Post-Hearing memoranda of Law. The undersigned, together with counsel for the respective parties, conducted a view of the property which is the subject of this proceeding. The Findings of Fact which follow are based in part upon the view.
The Petitioner is seeking an order from the Department which would have the effect of setting aside the permit issued by the Department to the Applicant.
The Petitioner is additionally seeking an order that would require the Applicant to remove fill which was allegedly illegally placed below the ordinary high water line of Crooked Lake.
FINDINGS OF FACT
The Petitioner is an organization composed of persons who own property bordering on Crooked Lake in Polk County, Florida. Among the members of the Petitioner is a property owner who owns land directly adjacent to the land that the Applicant proposes to fill. Crooked Lake is a navigable body of water.
The applicant, John Mangham represents the owner of certain property which is adjacent to Crooked Lake. The property includes a berm, or ridge which runs approximately parallel to the present borders of Crooked Lake. The Applicant proposes to fill areas adjacent to the berm landward from the present waterline. The waters of Crooked Lake at one time flowed around the berm, and the area which the Applicant proposes to fill has from time to time been submerged, and formed a part of Crooked Lake.
The Department of Environmental Regulation is the state agency charged by law with the responsibility of issuing dredge and fill permits in the navigable waters of the state, and permits for construction of stationary installations in the waters of the state.
During August, 1976 the Applicant commenced a landfill project on the property which is the subject of this proceeding. More than twelve truckloads of fill material were brought into the area, and were placed on the berm, and landward of the berm. Members of the Petitioner made efforts to stop the fill project, and they contacted officials of the Department. The Department concluded that certain of the Applicant's activities violated Department rules, and the Applicant agreed to remove debris which had been placed near the lake, to re-seed a partially cleared area between the berm and the lake, and to refrain from any further activity between the berm and the lake. The Department did not require that the Applicant remove any of the fill that had been placed landward from the berm, but it did request that the Applicant apply for an "after-the-fact permit" respecting the clearing of vegetation. The Applicant thereafter applied for a permit to place additional fill material landward from the berm. The Department has approved the application and has issued a permit. The Petitioner has filed a petition demanding that the permit be set aside, and that the Applicant be required to remove the fill which has already been placed in the area.
The evidence presented at the final hearing is insufficient to establish whether the land that the Applicant has filled, and the land which the Applicant proposes to fill, is above or below the ordinary high waterline of Crooked Lake. Crooked Lake is presently at its lowest elevation within the memory of any of the persons who testified at the hearing. One of the witnesses has lived on land adjacent to Crooked Lake for more than forty years. The berm which lies on the Applicant's property has apparently been at all times out of the lake. The waters of the lake at one time surrounded the berm. Within the past three years the area landward from the berm has been covered with water, and it has been possible to reach the area by boat from Crooked Lake.
Biological evidence offered at the hearing confirms that areas surrounding the berm were submerged at one time. Various estimates were presented respecting the elevation of the ordinary high waterline of Crooked Lake. None of the estimates were supported by substantial competent evidence. One witness, a qualified land surveyor, called by the Petitioner, attempted to establish the elevations of points which the Applicant proposes to fill. The witness' survey was not done in an appropriate manner, and is not creditable.
So long as the waters of Crooked Lake remain at their present level, the Applicant's proposed project would have no environmental effect upon the waters of the lake. None of the fill material would be placed directly in the waters of Crooked Lake, and all of the work would occur more than 100 feet landward of the present waterline. It does appear that if the lake rose to previous levels, the land which the Applicant proposes to fill would be within the waters of the lake. If the area were filled, it would be above the level of Crooked Lake, even if the lake rose to prior levels.
The Department requested that the Florida Department of Natural Resources issue a statement respecting ownership of the subject property. The Department of Natural Resources responded that the ordinary high waterline elevation contour has not been established for Crooked Lake. Neither the Department of Natural Resources nor the Florida Trustees of the Internal Improvement Trust Fund have given their consent to the proposed project.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties to this action and over the subject matter. Section 120.57(1), 120.60, Florida Statutes (1976 Supp.)
An applicant for a landfill permit has the burden of affirmatively providing reasonable assurance that the short-term and long-term effects of the project will not cause pollution, will not result in violations of the water quality criteria and standards of the Florida Statutes and the rules and regulations of the Department, and 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. Rules of the Department of Environmental Regulation, Rule 17-4.07(1), 17-4.28(3), 17-4.29(6),(8), Florida Administrative Code. The Applicant has met this burden. It does not appear that the proposed landfill project would have an adverse impact upon the waters of Crooked Lake. Only if the waters of Crooked Lake rose to previous levels would the project have any effect upon the lake at all, and that effect would be to change the boundary.
An applicant for a landfill permit has an additional burden of establishing that the fill will not be placed on lands owned by the state, or by other persons. Section 253.77(1) Florida Statutes (1976 Supp.) provides:
"No department, including any division, bureau, section, or other subdivision thereof, or any other agency of the state possessing regulatory powers involving the issuance of permits shall issue any permit, license, or other evidence
of authority involving the use of sovereignty or other lands of the state, title to which is vested in the Board of Trustees of the Internal Improvement Trust Fund or the Department of Natural Resources under Chapter
253 until the applicant for such permit, license or other evidence of permission, shall shall received from the Board of Trustees of the Internal Improvement Trust Fund the required lease, license, easement, or other form of consent authorizing the proposed use and exhibited it to such agency or department or subdivision thereof having regulatory power to permit such use."
It cannot be determined from the evidence in this case whether the area which the Petitioner proposes to fill is above or below the ordinary high waterline of Crooked Lake. If the area is below the ordinary high waterline, then it is owned by the state. Section 253.12, Florida Statutes (1975). The Department of Natural Resources has refused to give its consent to the proposed project. The Applicant has failed to establish that the proposed project will not take place on lands owned by the state. Since the Applicant has failed to establish that he owns the land which he proposes to fill, the permit application should have been denied, and the permit should now be set aside.
If the Department were seeking to take enforcement action against the Applicant, requiring him to remove the fill material that he previously placed in the area, on the grounds that the material was placed on sovereignty lands, the Department would have the burden of establishing that the land was state owned. The Petitioner has demanded that the Department take such action. With respect to this demand, the Petitioner has the burden of establishing who owns the land, and has failed in its burden. The demand should be denied.
RECOMMENDED ORDER
Based upon the foregoing Findings of Fact and Conclusions of Law, it is, hereby,
RECOMMENDED:
That the Department of Environmental Regulation issue a final order setting aside the permit issued to the Applicant, John W. Mangham, and denying the further prayer of the Petitioner that the Applicant be required to remove fill material previously placed in the area.
RECOMMENDED this 23rd day of January, 1978, in Tallahassee, Florida.
G. STEVEN PFEIFFER Assistant Director
Division of Administrative Hearings The Oakland Building
2009 Apalachee Parkway
Tallahassee, Florida 32301
(904) 488-9675
Filed with the Clerk of the Division of Administrative Hearings this 23rd day of January, 1978.
COPIES FURNISHED:
Terry Cole, Esquire Deputy General Counsel
Department of Environmental Regulation
2562 Executive Center Circle East Montgomery Building
Tallahassee, Florida 32301
Jesse C. Barber, Esquire Post Office Box 796 Bartow, Florida 33830
Gerald P. Hill, Esquire
P. O. Box 9204
Winter Haven, Florida 33880
================================================================= AGENCY FINAL ORDER
=================================================================
BEFORE THE STATE OF FLORIDA DEPARTMENT OF ENVIRONMENTAL REGULATION
DEFENDERS OF CROOKED LAKE, INC.,
Petitioner,
vs. CASE NO. 77-1346
DER NO. 53-39-0160-7E
STATE OF FLORIDA, DEPARTMENT OF ENVIRONMENTAL REGULATION, and JOHN MANGHAM,
Respondent.
/
FINAL ORDER
BY THE DEPARTMENT:
On January 23, 1978, the duly appointed Hearing Officer in the above styled cause entered his Recommended Order, consisting of his Findings of Fact, Conclusions of Law and Recommended Order, and later served copies of the Recommended Order on the Petitioner and Respondents. A copy of the Recommended Order is attached hereto as Exhibit "A".
Pursuant to Section 17-1.26(2), Florida Administrative Code, and Section 120.57(1)(a), Florida Statutes, the parties were given an opportunity to submit written exceptions to the Recommended Order. No exceptions were filed by any party.
The Recommended Order thereafter came before me, as head of the Department, for final agency action on this matter. After consideration of the Recommended Order and the record submitted herein, it is therefore,
ORDERED, that the Hearing Officer's Findings of Fact, Conclusions of Law and Recommended Order are hereby adopted except for paragraph three of the Conclusions of Law. That paragraph is modified to read as follows:
3. Pursuant to Section 253.77(1), Florida Statutes, the Department of Environmental Regulation may not issue a permit involving the use of sovereignty or other lands of the state until the applicant has received from the Board of Trustees of the Internal Improvement Trust Fund or the Department of Natural Resources the required lease, license, easement or other form of consent authorizing the proposed use and exhibited it to the Department. It cannot be determined from the evidence in this case whether the area which the Petitioner proposes to fill is above or below the ordinary high waterline of Crooked Lake. If the area is below the ordinary high waterline, then it is owned by the state. Section 253.12, Florida Statutes (1975). The Department of Natural Resources has refused to give its consent to the proposed project. The Applicant has
failed to establish that the proposed project will not take place on lands owned by the state. Since the Applicant has failed to establish that he owns the land which he proposes to fill, the permit application should have been denied, and the permit should now be set aside. Accordingly, Respondent, John Mangham, is ordered to return to the Department the permit which was issued him by the Department's Southwest District Office within ten (10) days of receipt of this final order.
DONE and ENTERED this 9th day of March, 1978, in Tallahassee, Florida.
JOSEPH W. LANDERS, JR.
Secretary
Department of Environmental Regulation
2600 Blair Stone Road
Twin Towers Office Building Tallahassee, Florida 32301
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true copy of the foregoing Final Order has been furnished by United States Mail to the following list on this 10th day of March, 1978.
Mr. Jesse C. Barber, Esquire Post Office Box 796
Bartow, Florida 33830
Mr. Gerald P. Hill, Esquire Post Office Box 9204
Winter Haven, Florida 33880
G. Steven Pfeiffer Division of Administrative
Hearings
Department of Administration Room 530, Carlton Building Tallahassee, Florida 32304
David Puchaty, District Manager Department of Environmental
Regulation
Southwest District Office 7601 Highway 301 North
Tampa, Florida 33610
TERRY COLE
Deputy General Counsel Department of Environmental
Regulation
2600 Blair Stone Road
Twin Towers Office Building Tallahassee, Florida 32301
Telephone: (904)488-9730
Docket for Case No: 77-001346
Orders for Case No: 77-001346
| Issue Date |
Document |
Summary |
|
Mar. 09, 1978 |
Agency Final Order
|
|
|
Jan. 23, 1978 |
Recommended Order
|
Set aside permit to fill in land by a lake that had receded; did not establish the ordinary high water mark was below fill line. Deny Petitioner`s request.
|
