STATE OF FLORIDA DIVISION OF ADMINISTRATIVE HEARINGS

JOHN M. RUZICKA, )

)

Petitioner, )

)

vs. ) CASE NO. 78-1358

)

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, conducted a final hearing in the above case on February 27, 1979, in Jacksonville, Florida. The following appearances were entered:

APPEARANCES

For Petitioner: John M. Ruzicka

Post Office Box 342

DeLeon Springs, Florida 32028

For Respondent: Terry Cole, Esquire

Department of Environmental Regulation 2600 Blair Stone Road

Tallahassee, Florida 32301

On or about March 14, 1978, John M. Ruzicka ("Petitioner" hereafter) filed an application with the Florida Department of Environmental Regulation ("Department" hereafter) to dredge two "ponds" adjacent to Clear Lake in Putnam County, Florida, and to use the dredge material to fill areas adjacent to the ponds. The dredging and filling activity was undertaken by the Petitioner prior to the time that he filed his permit application. The application has been handled by the Department as an "after-the-fact" permit application. On or about June 23, 1978, the Department issued a notice of its intent to deny the application. The Petitioner requested a hearing, and the matter was forwarded to the office of the Division of Administrative Hearings. The matter was scheduled for hearing on several occasions, but was continued upon request of the parties. The final hearing was scheduled to be conducted as set out above by an Amended Notice of Hearing dated January 9, 1979.

At the final hearing the Petitioner testified as a witness on his own behalf. The Department called the following witnesses: Randy Kautz, an environmental specialist employed with the Florida Game and Fresh Water Fish Commission; and John Hendrix, an environmental specialist employed with the Department. Department Exhibits 1-11 were received into evidence.

FINDINGS OF FACT

1. Ivan J. Russell owns land on the northern shore of Clear Lake which lies between the St. Johns River and Crescent Lake in southern Putnam County. The Petitioner is the owner's son-in-law. The owner authorized the Petitioner to excavate two "ponds" on the marshy part of the property nearest to Clear Lake. The Petitioner testified that he had in mind raising an okra crop on the area, and wished to fill part of the area so that his tractor would not bog down, and to use the resulting ponds as an irrigation source. The Petitioner also indicated that he desired to provided better access to Clear Lake. Despite his original intention to farm the area, he testified that he and the owner would be willing to dedicate the land to non-agricultural use in order to obtain a permit for the excavations. The excavations are each 30 feet wide by 150 feet long, and are three to four feet deep. Spoil material from the excavations was placed on the property adjacent to them. The excavations are clearly depicted in aerial photographs which were received in evidence as Department Exhibits 7-

1. They are actually dead end canals which extend from Clear Lake to the upland portions of the property through what had been a marshy littoral zone.

   At the time that the excavations were undertaken the waters of Clear Lake were apparently quite low, and the excavations were not physically connected with the lake. At the time of the hearing, however, the waters of the lake were considerably higher and water flowed unimpeded from the lake into the excavations. The excavations are now separated from the lake only by a narrow fringe of vegetation.

   
   

   1. Clear Lake is located in an area which is described in geologic terms as a "sandhill area." The lake is classified as a sandhill lake. Such areas are typified by sandy, highly leached soils of coastal origin. Sinkholes are common. When a sinkhole develops, ground water seeps into it, forming a lake such as Clear Lake. Precipitation levels regulate the water levels of the lake, however, the water level will respond only gradually to high or low precipitation periods. In other words, the lake will gradually decrease in depth during drought periods, and will rise gradually in response to heavy rainfall periods. Where the shoreline of a sandhill lake slopes gradually, broad marsh areas are typical. The Petitioner's project was undertaken in such a marsh. The excavations were made in an area which is dominated by both transitional and submerged vegetation. This indicates that during periods when the water level is high the area is submerged, and during periods when the water level is low it is a transitional zone. At no time could the marsh be considered an upland area. At the time of the hearing the marsh was in fact a part of Clear Lake.

      
      

   2. A broad marshy area surrounding a sandhill lake performs a significant function to maintain the water quality of the lake, and to provide a food supply and habitat for fish and wildlife. The marsh vegetation serves to filter excess nutrients from the waters of the lake, and to filter excess nutrients from runoff that enters the lake. The marsh also constitutes and essential part of the food chain for fish resources of the lake, and during the early stages of development, fish will use the marsh area as a habitat.

      
      

   3. The Petitioner's excavations effectively obliterate a significant portion of the marsh on the northern side of Clear Lake. The marsh has been replaced with two dead end canals which are adjoined by sandy, dry areas. The project will have an adverse impact upon water quality in the lake. The filtering function, which vegetation in such a zone performs, has been eliminated. The project will also have an adverse impact upon fish resources in the lake, because a significant habitat has been lost.

   4. There has been considerable development around the shore of Clear Lake. Most of the development has occurred on the southern portion of the lake where the shoreline is more steep, and where the marshy littoral zone is narrow. The fact that the littoral zone surrounding the lake is not uniformly broad renders the broad areas that do exist especially significant. The existence of development around the lake augments the significance. The adverse impacts of the Petitioner's project may not be readily apparent. If it and other such projects were permitted, however, the water quality of Clear Lake will inevitably deteriorate.

      
      

   5. The Petitioner did not consult engineering or environmental consultants before undertaking the project. Neither did he seek nor obtain any permit from the Department or from any other governmental entity.

      
      

      CONCLUSIONS OF LAW

      
      

   6. The Division of Administrative Hearings has jurisdiction over the subject matter of this proceeding and over the parties. Section 120.57(1), Florida Statutes (1978 Supp.).

      
      

   7. The Department has permitting jurisdiction over projects such as that undertaken by the Petitioner. Sections 253, 403.087, Florida Statutes (1977); Rules of the Department of Environmental Regulation, Chapters 17-3, 17-4, Florida Administrative Code. In order to obtain a permit, it is the applicant's burden to provide reasonable assurance that the project will not adversely affect water quality, or fish and wildlife resources. The Petitioner in the instant case has failed to provide such assurance, and in fact it appears from the evidence that the project will have an adverse effect upon water quality and fish and wildlife resources.

      
      

   8. Petitioner's application for an after-the-fact permit should be denied, and the Petitioner should be required to restore the area to its original condition in such a manner as to cause as slight an impact upon the area as is possible.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is, hereby RECOMMENDED that the Department of Environmental Regulation enter a final order denying the Petitioner's application for an after-the-fact permit, and requiring the Petitioner to restore the area to its original condition, taking care that such restoration be accomplished in such a manner to cause as little disruption to the waters of Clear Lake as possible.

DONE AND ENTERED this 9th day of March 1979 in Tallahassee, Florida.

G. STEVEN PFEIFFER Hearing Officer

Division of Administrative Hearings Room 530 Carlton Building Tallahassee, Florida 32304

(904) 488-9675

COPIES FURNISHED:

Terry Cole, Esquire Deputy General Counsel

Department of Environmental Regulation Twin Towers Office Building

2600 Blair Stone Road Tallahassee, Florida 32301

John M. Ruzicka Post Office Box 342

DeLeon Springs, Florida 32028

Mr. Jacob D. Varn, Secretary Department of Environmental Regulation Twin Towers Office Building

2600 Blair Stone Road Tallahassee, Florida 32301

================================================================= AGENCY FINAL ORDER

=================================================================

BEFORE THE STATE OF FLORIDA DEPARTMENT OF ENVIRONMENTAL REGULATION

JOHN M. RUZICKA,

Petitioner,

1. CASE NO. 78-1358

   
   

   STATE OF FLORIDA, DEPARTMENT OF ENVIRONMENTAL REGULATION,

   
   

   Respondent.

   /

   
   

   FINAL ORDER

   
   

   On March 9, 1979, the duly appointed Hearing Officer in the above-styled cause completed and entered a Recommended Order, which was subsequently served by mail on Petitioner and Respondent. A copy of that Order is attached hereto as "Exhibit A".

   
   

   Pursuant to Section 17-1.68(1), Florida Administrative Code, and Section 120.57(1)(b)(8), Florida Statutes, parties were allowed ten (10) days in which to submit written exceptions to the Recommended Order. No party submitted exceptions. The Recommended Order thereafter came before me, as head of the Department, for final agency action.

   Having considered the Hearing Officer's Recommended Order, it is therefore,

   
   

   ORDERED that the Hearing Officer's Recommended Order is adopted in toto as the final action of this agency. Since the application was for an after-the- fact permit and the work has been performed, the Peitioner is ordered to restore the area to its original condition, taking care that such restoration be accomplished in such a manner to cause as little disruption to waters of Clear Lake as possible. Within ninety (90) days of the effective date of these Orders, Petitioner shall completely restore the unauthorized dredge and fill site as follows:

   
   

   1. All spoil fill which was removed from the two excavations and placed on adjacent submerged and transitional areas of Clear Lae, as generally depicted in the application drawings, shall be removed and placed back into the same excvations, returning both the areas of the excavation and filling to the natural elevations which existed before the activity took place, and

      
      

   2. The restoration work shall be accomplished in such a fashion as to minimize and prevent further damage to the aquaic environment adjacent to Respondent's property. A turbidity curtain shall be used to confine the immediate effects of sediment disturbance resulting from restoration. Equipment access shall be provided by portable mats and not by additional dredging and filling. No work shall be commenced without prior notification to the Department.

      
      

   3. Respondent shall be allowed thirty (30) days to submit an alternative restoration plan and schedule to the Department's Subdistrict Office in Jacksonville. The District shall approve or deny the plan within thiryt (30) days of submittal. If no alternative plan is submitted and approved, Respondent shall carry out the above restoration plan.

DONE AND ORDERED this 6th day of April, 1979, in Tallahassee, Florida.

STATE OF FLORIDA DEPARTMENT OF ENVIRONMENTAL REGULATION

JACOB D. VARN

Secretary

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

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy was mailed tis 6th day of April, 1978, to Mr. John M. Ruzicka, Post Office Box 342, DeLeon Springs, Florida 3208.

TERRY COLE

Deputy General Counsel Department of Environmental

Regulation

22600 Blair Stone Road

Twin Towers Office Building Tallahassee, Florida 32301

(904) 488-9730

Copies furnished to:

Randy Kautz

G. Steven Pfeiffer - Hearing Officer John Hendricks

John Adams - Corps of Engrs.

Docket for Case No: 78-001358

Orders for Case No: 78-001358