STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MRS. R. C. HORTON, by CHARLES H. )

HORTON, her son, )

)

Petitioner, )

)

vs. ) CASE NO. 78-511

) STATE OF FLORIDA, DEPARTMENT OF ) ENVIRONMENTAL REGULATION and ) CONSOLIDATED CITY OF ) JACKSONVILLE MOSQUITO CONTROL ) BRANCH, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a hearing was held before Charles C. Adams, Hoaring Officer with the Division of Administrative Hearings, at Room 205, Building "B", 6501 Arlington Expressway, Jacksonville, Florida, commencing at 10:15 A.M. on August 7, 1978.

APPEARANCES

For Petitioner: Charles H. Horton, Esquire

7357 Goodnow Road

Jacksonville, Florida 32216

For Respondent: Carole Joy Barice, Esquire

Department of Department of Environmental Regulation

Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32301

For Respondent: Robert G. Brown, Esquire City of Assistant Counsel Jacksonville 1300 City Hall

Jacksonville, Florida 32202 ISSUE

Whether or not the Respondent, Consolidated City of Jacksonville Mosquito Control Branch, should be allowed to proceed under Permit/Certification No. 16- 31-0756-2E to complete a project known as the storm sewer outfall and maintenance dredging, under the proposed approval of the Respondent, State of Florida, Department of Environmental Regulation.

FINDINGS OF FACT

1. This cause came on for consideration based upon the Petitioner's (Mrs.

   R. C. Horton) amended petition filed by her son, Charles H. Horton, which petition opposes the proposed permit/certification that the State of Florida, Department of Environmental Regulation, intends to issue to the Consolidated City of Jacksonville. Particularly, this concerns the Permit/ Certification No. 16-31-0756-2E, Duval County, Florida. The placard number is 01496.

   
   

2. The Petitioner in this cause, Mrs. R. C. Horton, resides at 7357 Goodnow Road in Jacksonville, Duval County, Florida, on property which is adjacent to the project site in issue. The Respondent, State of Florida, Department of Environmental Regulation, is an agency of the State of Florida which has, among other duties, the consideration of permits which involve maintenance dredging. The authority for this activity on the part of Respondent, State of Florida, Department of Environmental Regulation, is found in Chapter 253 and/or Chapter 403, Florida Statutes.

   
   

3. The second Respondent in this cause is the Consolidated City of Jacksonville Mosquito Control Branch. The Consolidated City of Jacksonville is a municipality in Duval County, Florida.

   
   

4. The proposal in dispute is that request to excavate approximately 9700 cubic yards of material at the site by realignment of 600 feet of canal; widening 250 feet and cleaning and shaping 100 feet of drainage way in the location of Section 56, Township 3 South, Range 27 East, on Eagle Branch, a channelized drainage way in Duval County, Florida. The stated purpose of this work is to prevent an encroachment of the branch onto private property in the area of the 600-foot realignment. An additional purpose is to promote better drainage.

   
   

5. The Petitioner's challenge to the Respondent, Department of Environmental Regulations intent to grant the permit was premised primarily on the testimony of Charles Horton and certain photographic slides which he presented in the course of that Hearing. It is Mr. Horton's position that if the work as applied for were completed, there would be erosion to the property of Mrs. R. C. Horton and a problem with siltation at the mouth of the Eagle Branch where it flows into Pottsburg Creek. In the mind of Charles Horton, this theory is supported by the opinion that clearing out and widening will increase the velocity of the water flowing out of the Eagle Branch, thereby promoting advanced erosion, and by the past when the Eagle Branch channelized in the early fifties and there was a problem with siltation and erosion, to the extent that maintenance dredging was necessary in the 1960's. (Moreover, Charles Horton was concerned about the cost considerations involved in the project; however, he was advised by the undersigned that the purpose of the hearing sub judice was not to question the cost, but to consider the effect of the project on water quality and biological resources as contemplated by Chapters 253 and 403, Florida Statutes, and Rule 17, Florida Administrative Code.) The petitioner did not offer engineering studies or other forms of data which would support the opinion of Mr. Horton.

   
   

6. In defense of the project, the Respondent, Consolidated City of Jacksonville Mosquito Control Branch, offered testimony from George R. Knecht, a civil engineer. Mr. Knecht has had experience in this type project over a period of the last 7-1/2 years. He stated in testimony that the aims of the project were to take the creek bed away from private property on the north side of the city maintenance yard by process of realignment, and to clean out the

   Eagle Branch, thereby decreasing the velocity of the water flowing through that branch in the area of the maintenance yard. (The maintenance yard may be seen on the Respondent, Consolidated City of Jacksonville's Exhibit No. 1 admitted into Evidence.) It was to these ends that the City of Jacksonville submitted its proposals for permit, which may be found as Petitioner's Exhibit No. 1 admitted into evidence.

   
   

7. Respondent, State of Florida, Department of Environmental Regulation, received the application and made an application appraisal, which may be found as Respondent, Department of Environmental Regulation's Exhibit No. 1 admitted into evidence. In the process of conducting the appraisal, a biological study was done and other steps were taken to discern the effect of the project on water quality in the area which includes a flood plain at the mouth of the Eagle Branch, which flows into Pottsburg Creek. Among the things that were required as conditions to the granting of the permit were the placing of turbidity curtains at the mouth of the branch during the course of the entire construction; monitoring the turbidity daily on the downstream side of the turbidity curtain during the dredging operation; containing the dredging through the swamp flood plain in the existing channel to avoid destruction of trees of the flood plain, and placing the spoil from the flood plain on the existing berm or removing it to uplands. (These conditions, and a statement of intent to grant the permit, may be found in Petitioner's Exhibit No. 2 admitted into evidence.) The Respondent, State of Florida, Department of Environmental Regulation, also received comments from the Florida Game and Fresh Water Fish Commission and those comments may be found in the Respondent, Department of Environmental Regulation's Exhibit No. 2 admitted into evidence. The intent to grant the permit incorporates the protections suggested by the Florida Game and Fresh Water Fish Commission. The testimony on the approach of the State of Florida, Department of Environmental Regulation to the request for permit was offered by Jeremy Tyler and Dave Scott, employees of the Respondent, State of Florida, Department of Environmental Regulation.

   
   

8. Upon consideration of the testimony offered, it is concluded that water quality and biological resources will not be unreasonably affected, and that it would be in keeping with requirements of Chapters 253 and 403, Florida Statutes, and Rule 17, Florida Administrative Code, to allow the granting of Permit/Certification No. 16-31-0756-2E, Duval County, Florida.

   
   

   CONCLUSIONS OF LAW

   
   

9. The Division of Administrative Hearings has jurisdiction in the cause.

   
   

10. Upon a consideration of all facts in this cause, it is concluded that as a matter of law the Respondent, Consolidated City of Jacksonville Mosquito Control Branch, should have issued to it Permit/Certification No. 16-31-0756-2E, as authorized by the Respondent, State of Florida, Department of Environmental Regulation, under the provisions of Chapters 253 and 403, Florida Statutes, and Rule 17, Florida Administrative Code.

RECOMMENDATION

It is recommended that the State of Florida, Department of Environmental Regulation, issue Permit/Certification No. 16-31-0756-2E, Duval County, Florida, for the benefit of Consolidated City of Jacksonville Mosquito Control Branch.

DONE and ENTERED this 1st day of September, 1978, in Tallahassee, Florida.

CHARLES C. ADAMS, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304

(904) 488-9675

COPIES FURNISHED:

Charles H. Horton, Esquire 757 Goodnow Road

Jacksonville, Florida 32216

Carole Joy Barice, Esquire Department of Environmental

Regulation

Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32301

Robert G. Brown, Esquire Assistant Counsel

1300 City Hall

Jacksonville, Florida 32202

Docket for Case No: 78-000511

Orders for Case No: 78-000511