STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JOHN W. MCPHAIL, )

)

Petitioner, )

)

vs. ) CASE NO. 79-2174

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

)

Respondent. )

)

RECOMMENDED ORDER

A hearing was held in the above captioned matter, after due notice, at Daytona Beach, Florida, on January 17, 1980, before Thomas C. Oldham, Hearing Officer.

APPEARANCES

For Petitioner: John W. McPhail

Route 1, Box 692H Deland, Florida 32720

For Respondent: Segundo J. Fernandez

Assistant General Counsel

Department of Environmental Regulation 2600 Blair Stone Road

Tallahassee, Florida 32301 ISSUE

Whether Petitioner's application for a dredge and fill permit should be granted or denied.

Petitioner appeared at the hearing unaccompanied by counsel and was advised by the Hearing Officer as to his rights in an administrative proceeding. He acknowledged understanding such rights and elected to represent himself in the matter.

FINDINGS OF FACT

1. On June 27, 1979, Respondent Department of Environmental Regulation's St. Johns River District office received an application from Petitioner John W. McPhail, Deland, Florida, for a permit to conduct dredge and fill activities on his property at Lake Johnson, DeLeon Springs, Florida. The application reflected that Petitioner desired to dredge 100 cubic yards of material Waterward of the lake mean high Water line and 100 cubic yards landward of the mean high water line, and then fill an adjacent cove area on his Property with the 200 cubic yards of material. (Respondent's Exhibit 1)

2. Lake Johnson is a small privately owned lake about fifteen acres in area. There are two distinct "lobes" of the lake which are joined by a narrow band of water. Each of these lobes is approximately seven acres in area. Some four or five houses, including, Petitioner's, are located around the lake. In the early Seventies, Petitioner dredged part of his shoreline and, in the process, too much material was inadvertently removed from the present cove area and placed in the middle of the property, which left a hump of land in the middle. The shoreline now is irregular with steep ungraded banks, and the cove area is somewhat stagnant. Petitioner wishes to restore the property by dredging the "hump" created by prior filling, and return the material to its Original location by filling the cove area. This will produce an even, sloped shoreline extending some 200 feet and improve the appearance of the lakefront. It will also reduce present maintenance Problems. (Testimony of Petitioner, Vause, Petitioner's Exhibits 1-3)

   
   

3. A field biologist in Respondent's District Dredge and Fill Permitting Section conducted an on-site inspection on August 28, 1979, and rendered a report of the inspection on October 2, 1979. He found that the dominant plant community along the banks of the shoreline consisted primarily of upland weeds and grasses such as broomsedge and bahaia grass. Additionally, primrose willow was found in that location. The vegetation along the shoreline includes maidencane and a small amount of bullrush while the open water area is predominately vegetated with water lilies. Primrose willow is a species of vegetation found in the transitional zone of a submerged land, and bullrush, maidencane, and water lily are also fresh water species of vegetation found in submerged lands, as defined in Chapter 17-4, Florida Administrative &ode. The water depth in the lake is approximately eight feet and the depth the water at the steep banks of the Petitioner's property is approximately three feet. Wetlands vegetation of the above types are conducive to the improvement of water quality by increasing dissolved oxygen levels after removal of polluting nutrients from the water. The removal of a significant amount of such vegetation may have a measurable adverse effect on water quality. Although Lake Johnson, a Class III body of water, presently has excellent Water quality, the vegetation along the shoreline has been removed to a degree of about ten to fifteen percent. The removal of fifteen to twenty percent or more of a shoreline in such a lake normally produces a measurable adverse effect on water quality. The dredging of material along a shoreline can produce short-term turbidity of the water. (Testimony of Vause, Respondent's Exhibits 2-3)

   
   

4. Respondent's inspector found that although filling the cove would remove some beneficial aquatic and land vegetation, would most likely reestablish if proper sloping was maintained on the shoreline. He also noted in his report that the proposed project would restore approximately one-half acre of open water to the lake. He therefore interposed no objection to the filling aspect of the project, but believed that dredging should not be undertaken waterward of the ordinary high water line, and that the shoreline should be merely contoured without dredging. By letter of October 4, 1979, Respondent's district manager advised Petitioner of its intent to deny his application for permit for the reason that the proposed work would eliminate approximately .5 acres of wetland community and thereby degrade water quality in the areas of BOD, turbidity, and dissolved oxygen. (Testimony of Vause, Respondent's Exhibits 2-4)

   
   

   CONCLUSIONS OF LAW

   
   

5. The permitting requirements of Section 403.087 Florida Statutes, are implemented in dredging and filling activities by Rule 17-4.28, Florida

   Administrative Code. The rule provides generally that a permit is required to dredge or fill in certain waters, including the submerged lands of such waters and transitional zone of the submerged land. Natural lakes are included in the categories of such waters unless they are owned by only one person, become dry each year without standing water, or are of no more than ten acres of water area at a maximum average depth of two feet existing throughout the year. Although the particular portion of Lake Johnson where Petitioner's property is located is less than ten acres, the entire lake is more than ten acres with the requisite average depth during the year. Accordingly, it is concluded that Respondent has permitting jurisdiction over the area in question.

   
   

6. Rule 17-4.28(3) provides that an applicant shall "affirmatively provide reasonable assurance to the Department that the short-term and long-term effects of the activity will not result in violations of the water quality criteria, standards, requirements and provisions of Chapter 17-3, Florida Administrative Code." The first question presented for consideration is whether or not Petitioner has provided such reasonable assurance to the Respondent concerning the proposed dredging activity. Respondent's representative testified at the hearing that the Department would have no objection to filling the area desired by Petitioner. Petitioner claims that no adverse effects will ensue from the dredging activity because he will be merely restoring the property to its prior condition. He further points out that the vegetation which would be removed by dredging will reestablish itself over a period of time as it has done since the prior dredging of the property. This contention is in part supported by the report of Respondent's biologist provided proper slopes are maintained on the shoreline. Although undoubtedly some short-term turbidity in the waters will result from the dredging activity, it is not considered that this will have any permanent deleterious effect upon water quality. Respondent's own expert testified that a measurable adverse effect on water quality in a lake does not ordinarily occur until the shoreline vegetation has been disturbed to the extent of fifteen to twenty percent, but that Lake Johnson vegetation presently has been eliminated to a degree of only ten to fifteen percent of shoreline. It is therefore concluded that the relatively small amount of vegetation encompassed within the requested application would not result in degradation of water quality to any significant degree. In fact, it is likely that water quality could be enhanced by eliminating the present steep banks along the shoreline which are subject to erosion, and also by eliminating the present stagnant cove area. Petitioner therefore is considered to have provided the Respondent with the requisite reasonable assurances concerning water quality. Respondent's concerns about the cumulative effects of this and any future dredging activities are understandable, but should be addressed to subsequent applications which by their scope will measurably affect water quality. It is noted that Respondent's posthearing reliance on the Department's final order in the case of Dowdy v. State Dept. of Environmental Regulation, DOAH Case No 79-219, dealt with filling activities on a lake where the shoreline had already been developed to an extent of approximately fifty percent. That decision is therefore clearly distinguishable from the instant case.

   
   

7. Rule 17-4.28(11)(d) provides that permit applications must be approved or denied within 90 days after receipt of the original application or receipt of additional information requested by Respondent or correction of errors or omissions. The application in question was filed on June 27, 1979, but the letter of denial was not issued until October 4, 1979, a period in excess of 90 days. The record is devoid of any evidence that the 90-day period was tolled or extended by a request to Petitioner for additional information or correction of errors or omissions. The rule provision states that if the application is not approved or denied within the requisite period, or if the period is not

otherwise tolled by hearings thereon which presumably are triggered by action taken on the application prior to expiration of the 90-day period, the application shall be deemed approved. This provision tracks the language of Section 120.60(2), Florida Statutes, with regard to licensing. It is considered that Respondent Department has the affirmative burden of showing compliance with the state statutory provision and rule. Otherwise, the application must be deemed approved by operation of law even if, as here, the issue was not raised by either party during the course of the proceeding. Respondent did not so establish its compliance and, based on the record before the Hearing Officer as stated above, the application must be approved for this reason alone.

RECOMMENDATION

That Petitioner be issued the requested permit, subject to standard conditions.

DONE and ENTERED this 13th day of February, 1980, in Tallahassee, Florida.

THOMAS C. OLDHAM

Hearing Officer

Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301

(904) 488-9675

COPIES FURNISHED:

Segundo J. Fernandez Assistant General Counsel Department of Environmental

Regulation

2600 Blair Stone Road Tallahassee, Florida 32301

John W. McPhail Route 1, Box 692H

Deland, Florida 32720

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

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

BEFORE THE STATE OF FLORIDA DEPARTMENT OF ENVIRONMENTAL REGULATION

JOHN W. MCPHAIL,

Petitioner,

vs. CASE NO. 79-2174

STATE OF FLORIDA, DEPARTMENT OF ENVIRONMENTAL REGULATION

Respondent.

/

FINAL ORDER

BY THE DEPARTMENT:

On February 13, 1980, the duly appointed hearing officer in this case completed and submitted to the Department a Recommended Order, consisting of Findings of Fact, Conclusions of Law, and a Recommendation. The hearing officer recommended that Petitioner be issued the requested permit, subject to standard conditions. A copy of that Recommended Order is attached here to as Exhibit I.

Pursuant to Section 17-1.68(1), Florida Administrative Code, and Section 120.57(1)(b)(8), Florida Statutes, the parties were allowed ten (10) days in which to submit written exceptions to the Recommended Order. Respondent filed an exception to the hearing officer's Conclusion of Law Number 3. Petitioner filed no exceptions.

Respondent takes exception to the hearing officer's Conclusion of Law that in a proceeding such as this, where a permit applicant seeks to show entitlement to a permit, the Department has the affirmative burden of showing compliance with the time processing requirements of Section 120.60(2), Florida Statutes, and Section 17-4.28(11)(d), Florida Administrative Code, even though the issue was not raised by either party during the course of the proceedings. Respondent did not file a request for oral argument on its exception as provided for in Section 17-1.68, Florida Administrative Code. The Recommended Order and Respondent's exception thereafter came before me, as head of the Department, for final agency action.

Having considered the Recommended Order submitted herein, Respondent's Exception to Hearing Officer's Recommended Order, the Exhibits received in evidence at the hearing, and being otherwise fully advised, it is, therefore,

ORDERED that:

1. The hearing officer's Findings of Fact are hereby adopted in toto.

2. The hearing officer's Conclusion of Law Number 3 is rejected. As pointed out by Respondent in his exception, Petitioner is here seeking a permit and asserting the affirmative of an issue, namely that the permit be granted. Under Florida law, Petitioner has the affirmative burden of showing his entitlement to the permit. To hold that the Department has the affirmative burden of showing compliance with the time requirements of Section 120.60(2), Florida Statutes, and Section 17-4.28(11)(d), Florida Administrative Code, particularly when, as the hearing officer himself admits, the issue was not raised by either party during the course of the proceedings, nor addressed in the Petition for Hearing or Notice of Hearing filed in this case, runs counter to the law of burden of proof applicable to administrative proceedings. Withers

v. Metropolitan Dade County, 290 So.2d 573 (Fla. 3rd DCA 1974); 1 Fla. Jur. 2nd, Administrative Law, Section 81 (1977)

The remaining Conclusions of Law entered by the hearing officer, and his recommendation, are hereby adopted.

Accordingly, the St. Johns River District office is directed to prepare and issue to the applicant a permit for the proposed project, subject to standard conditions, within twenty (20) days from the effective date of this order.

Done and entered this 27th day of March 1980, 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

FILING AND ACKNOWLEDGMENT

FILED, on this date, pursuant to S. 120.52(9), Florida Statutes, with the designated Department clerk, receipt of which is hereby acknowledged.

Diane Quigg, for 3-28-80

Linda Bevard Date

Clerk

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 persons listed below, this 28th day of March, 1980:

Thomas C. Oldham Alex Senkevich

Hearing Officer District Manager Division of Administrative St. Johns River District

Hearings Suite 232

Room 101, Collins Building 3319 Maguire Boulevard Tallahassee, Florida 32301 Orlando, Florida 32803

Office of Public Information U.S. Army Corps of Engineers State of Florida, Department of Post Office Box 4970

Environmental Regulation Jacksonville, Florida 32201 Twin Towers Office Building

2600 Blair Stone Road Howard Marshall Tallahassee, Florida 32301 Ecological Review Branch

U.S. Environmental Protection

Bill White, Administrator Agency

Office of Enforcement 345 Courtland Street, N.E. State of Florida Department of Atlanta, Georgia 30308

Environmental Regulation

Twin Towers Office Building Florida Marine Patrol 2600 Blair Stone Road Department of Natural Tallahassee, Florida 32301 Resources

Crown Building, Room 538 Florida Game & Fresh Water Fish 202 Blount Street

Commission Tallahassee, Florida 32301 620 South Meridian Street

Tallahassee, Florida 32304 John W. McPhail

Route 1, Box 692H Deland, Florida 32720

SEGUNDO J. FERNANDEZ

Deputy General Counsel

State of Florida, Department of Environmental Regulation

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

Telephone: (904) 488-9730

Docket for Case No: 79-002174

Orders for Case No: 79-002174