WILBUR T. WALTON, )
vs. ) CASE NO. 80-2315
Respondent. )
Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, P. Michael Ruff, held a public hearing in this case on April 10, 1981 in Jacksonville, Florida.
For Petitioner: Wilbur T. Walton
of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee Florida 32301
On May 7, Petitioner, Wilbur T. Walton through his agent, Conrad Acosta, applied for a dredge and fill permit pursuant to Chapter 403, Florida Statutes, and Chapter 174, Florida Administrative Code, a well as water quality certification pursuant to Section 401 of Public Law 92-500 (see stipulated facts, Exhibit 1). On November 19, 1980, the Department of Environmental Regulation gave the Petitioner notice that it intended to deny his application for the permit under Chapter 403, Florida Statutes, Chapter 17-4, Florida Administrative Code, and water quality certification pursuant to Section 401 of Public Law 92-500, and notified the petitioner of his right to a hearing pursuant to Section 120.57, Florida Statutes. On December 5, 1980, the Petition for Hearing was filed and forwarded to the Division of Administrative Hearings and the undersigned Hearing Officer was ultimately assigned to hear the case.
One witness testified in support of the petitioner and the Petitioner presented Exhibits A, B and C. Petitioner's Exhibit B was admitted as corroborative of his live testimony only, due to its hearsay nature, and it will not be used as the basis of any findings of fact. The Respondent presented four witnesses and five exhibits. All exhibits were admitted.
The issues litigated concerned whether the petitioner has established his entitlement to the requested permit and concomitantly whether the project proposed by the Petitioner will be in the public interest and whether it will have a negative impact on the waters of the state.
The petitioner is a private landowner of a tract of land adjacent to the Suwannee River in Dixie County, Florida. The Respondent, State of Florida, Department of Environmental Regulation, is an agency of the State of Florida charged with carrying out the mandates of Chapter 403, Florida Statutes, and the rules contained in the Florida Administrative Code promulgated thereunder.
The Petitioner's proposed project entails the construction of a twelve- foot wide filled road across approximately 270 feet of swampy area in which the dominant plant species is bald cypress (taxodium distichum), a species listed in Rule 17-4.02(17), Florida Administrative Code. The property to be so developed by the petitioner lies within the landward extent of the Suwannee River in Dixie County. The Suwannee River, in this project area, constitutes waters of the state over which the Department has dredge and fill permitting jurisdiction pursuant to Rule 17-4.28(a), Florida Administrative Code. The project areas within "outstanding Florida waters" as defined in Rule 17-3.04(1)(3)g, Florida Administrative Code. The "upland berm" or river terrace on the property immediately adjacent to the navigable portion of the river is caused by the natural alluvial deposition of the river and the landward extent of the state waters here involved crosses the property in approximately the center of the parcel.
The proposed filing for the road crossing the swamp would result in the permanent elimination of at least 3,240 square feet of area within the landward extent of the Suwannee River. Specifically, the project would consist of a road some 12 feet wide at the bottom and 8 feet wide at the top, extending approximately 270 feet across the swampy area in question from the portion of the property which fronts on a public road, to the river terrace or "berm" area along the navigable portion of the Suwannee River. The road will be constructed with approximately 450 cubic yards of clean fill material with culverts 12 feet in length and 3 feet in diameter placed under the road at 25 foot intervals.
The parties have stipulated that the Department has jurisdiction pursuant to Chapter 403, Florida Statutes, and Public Law 92-500, to require a permit and water quality certification or the construction of a stationary installation within the waters of the state which this project has been stipulated to be.
The area to be filled is primarily vegetated by bald cypress, ash, blackgum, planer trees and other swamp species falling within the definitional portion of the above rule. The swamp contributes to the maintenance of water quality in the river itself by the filtering of sediment and particulates, assimilating and transforming nutrients and other pollutants through the uptake action of the plant species growing therein. The proposed project would destroy by removal, and by the filling, a substantial number of these species on the site which perform this function. The swamp area also serves as a habitat, food source and breeding ground for various forms of fish and wildlife including a species of state concern, the yellow-crowned night heron, which has been observed on this site and which requires such habitat for breeding and for its food source (see the testimony of Kautz). The area in question provides flood protection by storing flood waters and releasing them in a gradual fashion to the river system, especially during dry periods when the river level is lower than that of the swamp which serves to augment stream flow in such periods. As
established by witness Kautz, as well as witnesses Rector and Tyler, the filling proposed by the Petitioner would cause degradation of local water quality within the immediate area where the fill would be placed and, the attendant construction activity adjacent to either side of the filled area would disturb trees, animals and other local biota. The period during and immediately after the construction on the site would be characterized by excessive turbidity and resultant degradation of the water quality within the area and downstream of it.
The long-term impact of the project would include continued turbidity adjacent to and downstream from the filled road due to sloughing off of the sides of the road caused by an excessively steep slope and to the necessary maintenance operations required to re-establish the road after washouts caused by each rain or rainy period. An additional long-term detrimental effect will be excessive nutrient enrichment expected in the area due to the removal of the filtrative functions caused by removal of the trees and other plant life across the entire width of the swamp and the resultant inability of the adjacent areas to take up the nutrient load formerly assimilated by the plant life on the project area. The project will thus permanently eradicate the subject area's filtrative and assimilative capacity for nutrients, heavy metals and other pollutants.
The effect of this project, as well as the cumulative effect of many such already existent fill roads in this vicinity along the Suwannee River, and the effect of proliferation of such filling, will cause significant degradation of local water quality in violation of state standards. The effect of even this single filled road across the subject swamp is especially severe in terms of its "damming" effect (even with culverts). The resultant retention of water standing in the swamp for excessive periods of time will grossly alter the "hydro period" of the area or the length of time the area is alternately inundated with floodwaters or drained of them. This will cause a severe detrimental effect on various forms of plant and animal life and biological processes necessary to maintenance of adequate water quality in the swamp and in its discharge to the river itself. The excessive retention of floodwaters caused by this damming effect will ultimately result in the death of many of the tree species necessary for the uptake of nutrients and other pollutants which can only tolerate the naturally intermittent and brief flood periods.
This permit is not necessary in order for the Petitioner to have access to his property as his parcel fronts on a public access road. The purpose of the proposed road is merely to provide access to the river terrace or "upland berm" area on the portion of the property immediately adjacent to the navigable waters of the Suwannee River. The Department advocated through its various witnesses that a viable and acceptable alternative would be the construction of a walkway or a bridge on pilings across the jurisdictional area in question connecting the two upland portions of Petitioner's property. Such a walkway would also require a permit, but the Department took the position that it would not object to the permitting of an elevated wooden walkway or bridge for vehicles. The petitioner, near the close of the hearing, ultimately agreed that construction of such a walkway or bridge would comport with his wishes and intentions for access to the river berm portion of his property and generally indicated that that approach would be acceptable to him. It should also be pointed out that access is readily available to the waterward portion of the property from the navigable waters of the river by boat.
The Petitioner did not refute the evidence propounded by the Department's expert witnesses, but testified that he desired the fill-road alternative because he believed it to be somewhat less expensive than
construction of an elevated wooden bridge or walkway and that he had been of the belief that the use of treated pilings for such a walkway or bridge would result in chemical pollution of the state waters in question. The expert testimony propounded by the Respondent, however, establishes that any leaching action of the chemical in treated pilings would have a negligible effect on any life forms in the subject state waters at any measurable distance from the pilings. In summary, the petitioner, although he did not stipulate to amend his petition to allow for construction of the bridge as opposed to the fill road, did not disagree with it as a viable solution and indicated willingness to effect establishment of access to the riverfront portion of his property by that alternative should it be permitted.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties to and the subject of this proceeding, Section 120.57(1), Florida Statutes.
Article II, Section 7, of the Florida Constitution provides that it:
Shall be the policy of the state to conserve and protect its natural resources and scenic beauty, and that provisions shall be made by law for the abatement of air and water
pollution and of excessive and unnecessary noise."
Section 403.031(3), Florida Statutes, defines waters, of the state over which the Department may exercise jurisdiction pursuant to Chapter 403, Florida Statutes, to include:
". . .include, but not be limited to rivers, lakes, streams, springs, impoundments, and all other waters or bodies of water, including fresh, brackish, saline, tidal, surface or underground. Waters owned entirely by one person other than the state are included only in regard to possible discharge on other property or water. . ."
Section 403.021, Florida Statutes, provides that it is the public policy in this state to conserve the waters of the state and to protect, maintain and improve the quality thereof by the propogation of wildlife, fish and other aquatic life and other beneficial uses. The statute further provides that the prevention, abatement and control of pollution of the waters of this state are clothed with or affected by a public interest. Chapter 403 thus was enacted in implementation of the above constitutional authority.
The legislative intent in enacting Chapter 403, F.S., is implemented through a permitting system established in Sections 403.087 and 403.088, Florida Statutes. Section 403.087 provides that no stationary installation which will reasonably be expected to be a source of pollution shall be constructed without a permit from the Department. Section 403.031(2), Florida Statutes, defines pollution as including the presence in the waters of the state of any man- induced alteration of the chemical, physical or biological integrity of the waters in quantities which are or may prove to be potentially harmful to animal or plant life or to unreasonably interfere with outdoor recreation. Section 403.031(8), Florida Statutes, defines "installation" to include any structure,
equipment, or operation which may emit contaminants in quantities prohibited by the Department rules.
The filling activity of the type proposed by the Petitioner herein constitutes a stationary installation reasonably expected to be a source of water pollution within the meaning of Section 403.087, Florida Statutes, and thus requires a permit. State Department of Pollution Control vs. Universal Adams, Inc., 44 Fla. Supp. 165 (Fla. 19th Circuit Court 1974).
The legislature in Section 403.817, Florida Statutes recognizing that the levels of state waters naturally rise and fall, provided for the establishment of a method of determining the landward extent of waters of the state as defined above to be delineated by the presence of certain plants as dominant species. That methodology and the species by which the landward extent of state waters are to be measured and described is contained in Section 17- 4.02(17), Florida Administrative Code. The landward extent of a water body is thus determined by the presence or absence of any of the enumerated species as the dominant species. There is no question, as shown by the expert testimony in this case, that the Petitioner's project will be undertaken within the landward extent of state waters, to wit, the Suwannee River, as such waters are defined in the above cited rule. Indeed, the parties have stipulated to that jurisdictional criteria.
The Suwannee River is designated as an "outstanding Florida water." This designation, listed in Section 17-3.04(1)(4)g, Florida Administrative Code, indicates that the river is of exceptional recreational or ecological significance. That rule provides that it is the Department's policy to afford the highest protection to such waters. The river also falls within the designation of "Class III waters of the state" as envisioned by Section 17- 3.161, Florida Administrative Code. The outstanding Florida waters classification is a stricter criteria in terms of water quality superimposed over the Class III waters criteria. The applicable Class III waters standards are enumerated in Section 17-3.05(1), 17-3.06(1), and 17-3.12(1), Florida Administrative Code.
The criteria of water quality applicable to outstanding Florida waters and thus applicable to this project are listed in Section 17-4.242, Florida Administrative Code, wherein it is provided that no Department permit shall be issued for any stationary installation unless a two-part test is complied with. First, the discharge or activity involved must clearly be in the public interest, and secondly, either of the following must be true:
A Department permit for the activity has been issued or an application for such permit was complete prior to the effective date of the rule; or
The existing ambient water quality within outstanding Florida waters will not be lowered as a result of the proposed activity or discharge, except on a temporary basis during construction for a period not to exceed 30 days; lower water quality would occur only within a restricted mixing zone approved by
the Department; and, water quality criteria would not be violated outside the restricted mixing zone. Provided, however, that the Department may allow an extension of the
thirty day time limit on construction-caused degradation for a period demonstrated by the applicant to be unavoidable and where suitable management practices and technology approved by the Department are employed to minimize such degradation. Section 17-4.242(1)(a)(2), Florida Administrative Code.
That rule continues to provide:
(b) The Department recognizes that it may be necessary to permit limited activities or discharges in outstanding Florida waters in order to allow for or enhance public usage or for the maintenance of facilities existing prior to the effective date of this rule or facilities permitted subsequent to adoption of this rule. However, such activities or discharges will only be permitted if:
The discharge or activities are in compliance with the provisions specified in subparagraph (1) (a) 2 of this section; or,
Management practices and suitable technology approved by the Department are implemented for all stationary installations including those created for drainage, flood control, or by dredging or filling; and,
There is no alternative to the proposed activity, including the alternative of not undertaking any change, except at an unreasonably higher cost. Section
17-4.242(1)(b), Florida Administrative Code.
Expert testimony adduced by the Respondent, which the Petitioner failed to refute, establishes that the Petitioner's project will not meet either of the tests mandated by the above Section 17-4.242(1)(a)(2). Both tests must be met in order for a permit to be issued. It follows that the Petitioner's project is also impermissible under Section 17-4.242(b). Section 17-4.28(2), Florida Administrative Code, provides that:
Those dredging and/or filling activities which are to be conducted in or connected directly or via an excavated water body or series of excavated water bodies to the following categories of waters of the state (including submerged lands of such waters and transitional zones of submerged lands) shall obtain a permit from the Department prior to being undertaken;
rivers and natural tributaries thereto
streams and natural tributaries thereto;
Subsection 3 of Section 17-4.28, Florida Administrative Code, provides that the applicant for a permit to conduct dredging or filling activities in or connecting to waters of the state must provide affirmative reasonable assurances that the project will not result in violation of water quality criteria in both the long-term as well as the short-term effects of the project. The Petitioner
failed to establish that the project will not violate the subject rule. The preponderance of the evidence adduced from the expert witnesses presented by the Respondent established that violations of the pertinent water quality standards are to be expected and will occur. The project thus cannot be conceived to be in the public interest. The specific state water quality standards which will be violated and affected by Petitioner's project include the following:
Turbidity - Shall not exceed fifty (50) Jackson units above natural backgrounds as related to a standard turbidimeter (Section
17-3.061(2)(g), Florida Administrative Code.).
Nutrients - Shall continue to be limited to prevent violations of other standards contained in this chapter. Man-induced nutrient enrichment (total nitrogen or total phosphorus) shall be considered degradation in relation to the provisions of Section 3.041 of this chapter and Section 17-4.242, Florida Administrative Code.
Section 17-3.061(2)(i), Florida Administrative Code. The Petitioner presented no expert or other testimony which would support, by a preponderance of the evidence, his position that no degradation of water quality in the subject state waters would occur. His sole argument in essence was that the denial of the right to construct the fill road would deprive him of the use of his property.
The record indicates unequivocally, however, that adequate access is available to the parcel from a public road bordering the front of it and that adequate access by boat is available on the waterward side of the property, both of which would not cause significant water quality degradation or other environmental damage as would the proposed project. It should be observed, parenthetically at this juncture, that the Petitioner purchased the property presumably with full knowledge of its topography, terrain and hydrologic character. All portions of his property are contiguous and, inasmuch as it abuts and adjoins a public road or thoroughfare providing access, there is no additional right of access to which the Petitioner is entitled in derogation of the public's interest in protection of public waters as defined and mandated in the authority cited herein.
The Petitioner's project was shown by a preponderance of the evidence by the Respondent to result in a degradation of the existing ambient water quality by its action or existence alone, as well as in combination with similar fill road projects which have been constructed in the same riverine swamp or floodplain area. The cumulative impact of the proliferation of such projects is a legally recognized consideration. Section 403.088, Florida Statutes, recognizes the necessity of a review of such a cumulative effect. Pursuant to that section, no person is allowed to discharge wastes which by themselves, or in conjunction or combination with other waste discharge sources, will reduce the quality of receiving state waters below their class standards as embodied in Chapter 17, Florida Administrative Code. The Petitioner's project was clearly shown to reduce the quality of the receiving waters below the classification established for them, as well as serving as a substantial exacerbating factor in the degradation of the receiving waters of the river already occasioned by existing fill roads in the swamp. It is thus concluded that the Petitioner has failed to provide affirmative reasonable assurances that his proposed project will not result in violations of the water quality standards enumerated above as to both its short term and long term effects on the state waters as defined
herein. A preponderance of the evidence demonstrates clearly that the proposed project will cause pollution in contravention of the Department rules and will result in violations of the Department's water quality standards.
In consideration of the foregoing findings of fact and conclusions of law, the candor and demeanor of the witnesses and pleadings and arguments of counsel, it is
That the Department enter a final order denying the requested dredge and fill permit.
DONE and ENTERED this 27th day of May, 1981, in Tallahassee, Florida.
P. MICHAEL RUFF, Hearing Officer Division of Administrative Hearings The Oakland Building
Filed with the Clerk of the Division of Administrative Hearings this 27th day of May, 1981.
Wilbur T. Walton 2880 North 840 East
