STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DOMINIC J. SAVINO, )

)

Petitioner, )

)

vs. ) CASE NO. 80-684

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

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice the Division of Administrative Hearings, by its duly designated Hearing Officer, Michael Pearce Dodson, held a final hearing in this case on June 27, 1980, in Bunnell, Florida. The following appearances were entered:

APPEARANCES

For Petitioner: Mr. Dominic J. Savino, pro se

334 North 11th Street Flagler Beach, Florida 32036

For Respondent: Silvia Morell Alderman, Esquire

Department of Environmental Regulation 2600 Blair Stone Road

Tallahassee, Florida 32301

These proceedings began on April 3, 1980, when Petitioner, Dominic J. Savino, requested an administrative hearing on the proposed denial of his application for a permit to fill in state waters. On April 9, 1980, the matter was forwarded to the Division of Administrative Hearings for the assignment of a hearing officer and the scheduling of a final hearing.

At the final hearing Petitioner presented himself as his witness. He offered Exhibits A through E into evidence. Exhibits A, B and E were so received, but Exhibit E was received only as a diagram of Mr. Savino's contemporaneous testimony at the hearing. Respondent presented Mr. John Hendrix and Mr. G. Doug Dutton as its witnesses. The Department offered Exhibits 1 though 5, which were received into evidence. At the conclusion of the hearing the parties were offered an opportunity to file proposed findings of fact and proposed orders. Section 120.57(1)(b)4, Florida Statutes (1979). Neither party submitted proposals, although the Department submitted a copy of the Final Order and Recommended Order in Hodges v. Department of Environmental Regulation, DOAH Case No. 79-2356, in place of a proposed recommended order.

FINDINGS OF FACT

1. Mr. Savino owns a parcel of land at the intersection of two mosquito control canals in Flagler County, Florida. The portion which he desires to fill is no higher than 0.5 feet above mean high water. It is flooded by the canals several times a year.

   
   

2. In his original application to fill Mr. Savino said that he wanted to make his land suitable for the construction of two residential houses. Later, in response to a Department request for further information, he changed his plans for the filled area. He now intends it to be only the backyard of his residence. Prior to the time of the pending application, Mr. Savino had filled some of the same area involved here. Because he had no permit, an enforcement action was begun by the United States Corps of Engineers. As a result of that action part of the original fill was removed. The remainder of the fill is still in place and is within the scope of the pending application on an after- the-fact basis. 1/

   
   

3. The area projected to be filled is 6,000 square feet along the edge of the mosquito control canals. The fill would consist of 450 cubic yards of clay- type soil to be stabilized by planting Bahia or St. Augustine grass on it. This filling would raise the land level to an elevation of three feet along the immediate edge of the canals and two feet over the rest of the filled area. The fill would be placed in a band beginning five feet back from the water's edge and extending 50 feet landward.

   
   

4. The project site is near Smith Creek and the Intercoastal Waterway. These are state waters into which the mosquito control canals flow directly. The surrounding area of the site consists of tidal lagoons, bayous and spoil islands which were created by the construction of the Intercoastal Waterway.

   
   

5. The immediate fill site is covered by salt-tolerant vegetation which consists of salt grass (Distichlis spicata, marshhay cordgrass (Spartina patens), sea purslane (Sesuvium portulacastrum), marsh elder (Iva frutescens), saltwort (Batis maritima), glasswort (Salicornia virginica), and groundsel (Baccharis halimifolia). The foregoing species are the dominant plant community there.

   
   

6. This vegetation is part of the Smith Creek salt marsh system which provides several benefits in terms of water quality. The transitional marshlands provide water filtration and nutrient uptake for runoff from the adjacent uplands. During periods of inundation they also provide both habitat and forage area for juvenile estuarine fish.

   
   

7. Mr. Savino proposes to stabilize the fill by planting St. Augustine or Bahia grass. No showing was made, however, that the grass will grow on the fill which is on land periodically inundated by salt water. It is probable that there will be runoff from the fill into the mosquito control canals which will then convey suspended solids and man induced nutrients into Smith Creek and the Intercoastal waterway. Mr. Savino has not provided for a plan which will reasonably prevent that runoff. The receiving waters of Smith Creek and the Intercoastal Waterway are Class III waters.

   
   

8. On April 1, 1980, the Department responded to Mr. Savino's fill application by issuing a notice of intent to deny it on the grounds that valuable transitional marshland would be destroyed and a degradation of local water quality would be expected. In reaching its conclusion the Department

   relied in part on Petitioner's earlier intention to build two residences on the filled site. He has not deleted that part of his plan. That deletion does not, however, remove the major objections by the Department.

   
   

   CONCLUSIONS OF LAW

   
   

9. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter of this case. Section 120.57(1), Florida Statutes (Supp. 1980), Section 120.60 and Section 120.65, Florida Statutes (1979).

   
   

10. Although Mr. Savino has applied for a permit from the Department for his fill project, at the final hearing he contested the Department's jurisdiction over his land. He argued that the land where he intends to place the fill is an upland as defined in Section 17-4.02(18), Florida Administrative Code. The Department argues that the land is part of the transitional zone of the Intercoastal Waterway and Smith Creek. If the land is indeed transitional, Section 17-4.28(2), Florida Administrative Code, requires a permit for the fill. A transitional zone is defined as:

    
    

    . . . that area of land between a submerged land as defined in Subsection (17) above and an upland as defined in Subsection (18) above. It shall consist of the first fifty

    (50) feet landward of a line defined by the landward limit of a submerged land, or the waterward quarter (1/4) of the area between a submerged land and an upland, whichever is greater, and upon which any of the following vegetational species, or combination of such species, constitute the dominant plant community: [Following is a long list of plants.]

    
    

    Section 17-4.02(19), Florida Administrative Code.

    
    

    Among the identifying species named in the foregoing rule are glasswort, salt grass, sea daisy, sea purslane and switch grass. These plants do predominate on that part of Mr. Savino's land nearest the mosquito control canals where his fill would be placed.

    
    

11. On the basis of Section 17-4.28(2) and 17-4.02(19), Florida Administrative Code, the Department does have permitting jurisdiction here. The permit may not be granted until Mr. Savino complies with that part of Section

    17-4.28(3), Florida Administrative Code, which requires that:

    
    

    (3) The applicant for a dredge and/or fill permit or a federal certification for a dredging and/or filling activity 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, standard, requirements and provisions of Chapter 17-3, Florida Administrative Code.

12. Mr. Savino has failed to meet this requirement. Aside from his own personal beliefs as a layman, he has provided no evidence that his project which covers 6,000 square feet of marshland will not have a detrimental effect in either the short-term or long-term on the quality of nearby state waters. As an example, he plans to stabilize the fill with either Bahia or St. Augustine grass but will not fertilize it to prevent nutrient runoff. No showing was made, either in his application or at the hearing, that eight of those two grasses will grow on the fill soil, especially with no fertilization. Without adequate groundcover on the fill it will run off during either heavy rain occurrences or tidal inundations to possibly increase the turbidity in Smith Creek and the Intercoastal Waterway.

    
    

13. The foregoing discussion is not meant to imply that the proposed project has been proven harmful to state waters. It does mean, however, that Mr. Savino has not met his burden in affirmatively providing reasonably assurance that the harm will not happen. Until such assurances have been provided the Department, the permit must be denied. Section 17-4.28(3), Florida Administrative Code.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Environmental Regulation enter a final order denying the application for Mr. Savino to fill in a transitional zone of state waters. 2/

DONE AND ENTERED this 22nd day of January 1981 in Tallahassee, Leon County, Florida.

MICHAEL PEARCE DODSON

Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 22nd day of January 1981.

ENDNOTES

1/ The land in question here appears to have been the subject of earlier proceedings in the Division of Administrative Hearings. Case No. 79-367 reflects a request for hearing by Mr. Savino on a denial of a permit to dredge a canal and place the resulting spoil on the submerged and transitional surrounding lands. On May 16, 1979, Mr. Savino withdrew his request for a hearing, and the file was closed.

2/ This recommendation is subject to the continuing validity of Sections 17- 4.02(19) and 17-4.28(2), Florida Administrative Code. They were declared invalid in The Deltona Corp. v. D.E.R., 2 F.A.L.R. 1302A, 1307A (DOAH Case Nos.

80-1265R and 80-1299R, Final Order, Sept. 15, 1980); order stayed by an appeal to the 1st District Court of Appeal.

COPIES FURNISHED:

Mr. Dominic J. Savino

334 North 11th Street Flagler Beach, Florida 32036

Silvia Morell Alderman, Esquire Department of Environmental Regulation Twin Towers Office Building

2600 Blair Stone Road Tallahassee, Florida 32301

Docket for Case No: 80-000684

Orders for Case No: 80-000684