STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ALEXIS CRLENJAK, )

)

Petitioner, )

)

vs. ) CASE NO. 81-079

) STATE OF FLORIDA, DEPARTMENT OF ) ENVIROMENTAL REGULATION, )

)

Respondent. )

)

RECOMMENDED ORDER

A hearing was held in the above captioned matter, after due notice, at Tallahassee, Florida, on July 14, 1981, before Thomas C. Oldham, Hearing Officer.

APPEARANCES

For Petitioner: Alexis Crlenjak

Route 2, Box 618

Havana, Florida 32333

For Respondent: Silvia Morell Alderman

Assistant General Counsel

Department of Environmental Regulation 2600 Blair Stone Road

Tallahassee, Florida 32301 ISSUE PRESENTED

Whether Petitioner's application for a permit, pursuant to Chapter 403, Florida Statutes, to place approximately 1,000 yards of fill material on property contiguous to Black Creek, Clay County, should be approved.

Petitioner appeared at the hearing without counsel and stated that he desired to represent himself in this proceeding. He was advised as to procedures employed in Chapter 120 proceedings, and he acknowledged that he understood such procedures and elected to proceed without counsel.

Respondent's proposed recommended order has been fully considered, and those portions not adopted herein are considered to be either unnecessary or irrelevant, or unsupported in law or fact. Petitioner made no posthearing submission.

FINDINGS OF FACT

1. Petitioner Alexis Crlenjak is the owner of an unimproved lot approximately 90 feet by 230 feet in size which abuts Black Creek in Clay County, Florida. (Testimony of Petitioner, Exhibit 2)

2. By application received by the St. Johns River Subdistrict of the Department of Environmental Regulation on September 9, 1980, Petitioner sought a permit to place approximately 1,000 cubic yards of clean fill dirt over an area of 90 by 130 feet to a depth of 3 feet on the southern portion of his lot. The stated purpose for the request was to enable Petitioner to obtain a county permit to install a septic tank and drainfield in the filled portion of the lot. Such a permit previously had been denied by the county for the reason that inadequate drainage for a septic tank existed in the lot's present natural condition. (Testimony of Petitioner, Exhibit 2)

   
   

3. Subsequent to receipt of the application, DER's Subdistrict Office solicited comments or objections to the proposed project from adjacent landowners and various governmental agencies. An adjoining landowner, Frederick

   G. Flagge, filed an opposition to the concept of placement of a septic tank and drainfield next to his land due to the possibility of seepage and contamination. The United States Environmental Protection Agency, Region IV, expressed the view that placement of fill material in flood plain wetlands to raise the elevation for a septic tank placement is not in the public's interest and recommended denial of the application, and suggested that the applicant utilize the upland portion of his property for such purpose. The Southeast Regional Office of the National Marine Fisheries Service, U.S. Department of Commerce, concluded that the work would adversely impact fishery resources by filling productive wetlands and made a similar recommendation to that of the EPA. A representative of the Department of Interior Fish and Wildlife Service inspected the area in November 1980, and found that the proposed project would destroy 0.27 acres of wetlands which provide nesting, feed and shelter habitat for various species of birds, maimals and reptiles. The agency therefore recommended that any fill be limited to upland areas. The Florida Game and Freshwater Fish Commission reviewed the application and recommended denial because the project would adversely affect fish and wildlife resources by eliminating a protective wetland habitat. (Testimony of Tyler, Exhibit 2)

   
   

4. Petitioner's lot is bounded on the north by Black Creek, on the east by a dredged canal which terminates at a boat basin immediately south of his property. A filled driveway separates Petitioner' s land from the Flagge property to the west. Although the area surrounding the north bank of Black Creek is still in a natural condition, Petitioner's and Flagge's lots are practically the only ones on the south bank in that area which are undeveloped and still in a relatively natural state. The northern border of Petitioner's property is high and dry due to the berm along Black Creek which has been deposited over the years and has become vegetated. However, the southern half is a hardwood swamp area where blackgum is the dominant species, together with other species such as buttonbush, water ash, dahoon, willow, water locust, red maple and sweetgum. Black Creek is classified as a Class III body of water under Chapter 17-3, Florida Administrative Code. The type of vegetation on the southern portion of Petitioner's lot is associated with periodic inundation during seasonal rainfall, and is thus deemed to constitute the landward extent of waters of the state pursuant to the vegetative indices of Chapter 17-4, Florida Administrative Code.

   
   

5. After receiving the application an environmental specialist in Respondent's subdistrict office visited the site and thereafter prepared a Permit Application Appraisal. He identified the various species of plant life located in the area to be filled and determined that it was properly within Respondent's jurisdiction. His appraisal found that the swamp area in question benefits the water quality of Black Creek by filtering sediments and

   assimilating pollutants generated by upland runoff. He also found that the area is a fish and wildlife habitat, provides flood control, and serves as a primary food source for fish and wildlife. He therefore determined that the proposed project would result in the elimination of those biological resources that aid in maintaining water quality and would further degrade water quality by adding septic tank waste in close proximity to the waterway. He concluded that the project as proposed would induce flooding on the lot to the West by blocking the flow through the swamp which presently is connected by a culvert under the filled driveway to the west. His supervisor subsequently visited the site and agreed with the application appraisal. It was their combined opinion that filling of the land would eventually lead to eutrophication of the adjacent canal and adversely affect the water quality of Black Creek. At the time of their visits, the DER personnel did not observe standing water on Petitioner's property, but did so on the adjacent lot to the west. (Testimony of Rector, Tyler, Exhibit 2)

   
   

6. As a result of the adverse application appraisal, Respondent advised Petitioner on December 9, 1980, of its intent to deny the application based on the loss of submerged land, and anticipated water quality degradation by replacing the aquatic ecosystem with a septic tank and drain ield which has a potential for leaking into the adjacent canal. The Notice of Intent to Deny further specified state water quality standards which would be adversely affected, and found that the applicant had not provided the department with affirmative reasonable assurances that the immediate and long-term impacts of the project would not result in a violation of state water quality standards. (Testimony of Tyler, Exhibit 2)

   
   

7. At the hearing, Petitioner scaled down his request by stating that he now only wished to fill an area approximately 25 feet by 40 feet in the southwest corner of his lot to serve as the drainfield for a septic tank. However, the DER personnel who had reviewed the project testified that their recommendation of denial would not be changed in spite of the reduced proposed filling activity. They were of the opinion that the same considerations which led to the denial recommendation would still be present, except on a smaller scale. They indicated that Petitioner could still use his land, in spite of the permit denial, for recreational activities, or by erecting a "stilt" house on the lower half of the lot. However, in such an eventuality, the septic tank and drainfield would have to be placed on the upland portion of the lot. As petitioner pointed out, this cannot take place under current health regulations in view of the fact that a well is located on the north side of the adjacent lot, and the spacing distance would be insufficient for state and county permitting purposes. Although Petitioner denied that a culvert existed under the driveway separating the lots, he conceded that he had not visited the property for about a year. (Testimony of Tyler, petitioner, Exhibit 2)

   
   

   CONCLUSIONS OF LAW

   
   

8. DER's Rule 17-4.28, Florida Administrative Code, which implements Chapter 403, F.S., permitting requirements, requires that a permit be obtained for filling activities which are connected via an excavated water body to certain categories of waters, including rivers, streams and natural tributaries thereto. The vegetation indices in Rule 17-4.02(17), F.A.C., serves as a guide in the establishment of the border of the water bodies over which DER has permitting jurisdiction. Those indices are presumed to accurately delineate the landward extent of such water bodies. In the instant case the dominant species of black gum shows that the portion of Petitioner's property proposed to be filled is included within the landward extent of Black Creek and the adjacent

   canal, which is customarily submerged and exchanges waters with those recognizable water bodies. Accordingly, it is concluded that DER has jurisdiction for filling activities in the area in question.

   
   

9. Rule 17-4.28(3) provides that the applicant for a fill permit or a federal certification for a 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 violation of the water quality criteria, standards, requirements and provisions of Chapter 17-3, Florida Administrative- Code." Petitioner has not provided such assurances and, consequently, his application should be denied. Petitioner offered no evidence to counteract the expert testimony adduced by Respondent that the filling of even the reduced 25 feet by 40 feet area of hardwood swamp at the southwest corner of his lot would degrade the water quality of Black Creek by eliminating a valuable wetland habitat which assists in maintaining water quality of state waters. As stated by Respondent's personnel, filling even such a small portion will eliminate part of a filter system which assimilates nutrients through filtration uptake and transformation of pollutants. The filling proposed by Petitioner will immediately cause degradation of local water quality within the area Where the fill would be placed by short-term turbidity. Long-term impacts include continued turbidity adjacent to the project by washout of fill caused by exposure to the elements. Long-term nutrient enrichment in the adjacent canal waters and thus to Black Creek may be expected in the area due to the removal of the filtrative function and the necessity of tee adjacent areas to take up nutrients formerly assimilated by the project area.

   
   

10. It is noted that Respondent's Rule 17-4.04(1), F.A.C., provides that septic tank drainfield systems serving estimated sewage flows of 2,000 gallons per day or less are an exempted source from the permit requirements of Chapter 17-4. The stated purpose of Petitioner's proposed fill activity was to provide solely for a septic tank drainfield area due to the fact that current insufficient drainage characteristics of the property had resulted in the denial of a septic tank permit by Clay County. Inasmuch as Petitioner did not request such an exemption or otherwise establish that his proposed septic tank and drainfield system would serve less than the 2,000 gallon limitation of the rule provision, it cannot be determined if DER properly has jurisdiction over the subject matter of the application in that respect. However, as stated above, it has independent jurisdiction by virtue of the proposed fill activity which is separate and apart from the creation of a drainfield system.

RECOMMENDATION

That Petitioner's application be DENIED.

DONE and ENTERED this 12th day of August, 1981, in Tallahassee, Florida.

THOMAS C. OLDHAM

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32301

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 12th day of August, 1981.

COPIES FURNISHED:

Honorable Victoria J. TSchinkel Secretary, Department of

Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32301

Silvia Morell Alderman, Esquire Alexis Crlenjak Assistant General Counsel Route 2, Box 618 Department of Environmental Havana, Florida 32333

Regulation

2600 Blair Stone Road Tallahassee, Florida 32301

Docket for Case No: 81-000079

Orders for Case No: 81-000079