RAYMOND H. HODGES, JR., )
AND ANNE G. HODGES, )
vs. ) CASE NO. 81-1088
Respondent. )
Pursuant to notice this cause came on for administrative hearing before P. Michael Ruff, Hearing Officer of the Division of Administrative Hearings, in Cross City, Florida.
For Petitioner: Raymond H. Hodges, Esquire
This cause arose on the application of Raymond H. Hodges, Jr., and Anne G. Hodges for a dredge and fill permit pursuant to Chapters 253 and 403, Florida Statutes, and Chapter 17-4, Florida Administrative Code, filed with the Respondent on August 5, 1980. The application seeks to dredge and fill a portion of Petitioners' property lying adjacent to the Suwannee River in Dixie County, Florida. After several communications with the Petitioners and requests for additional information by the Department (as well as by the Army Corps of Engineers), on March 20, 1981, the Department issued a Notice of Intent to Deny the Petitioners' application, notifying them of their right to a hearing pursuant to Section 120.57, Florida Statutes.
A hearing was held in the Courtroom of the Dixie County Courthouse at Cross City, Florida, on June 30, 1981. The issue litigated concerns whether the Petitioners provided affirmative reasonable assurances that the proposed project will not result in violations of the water quality standards enumerated in the above statutory authority, as well as the Department's rules, in both its short- term and long-term effects on the State waters involved herein and whether the project will cause pollution.
The Petitioners presented two witnesses and twenty-two exhibits. The Respondent presented five witnesses and five exhibits. All exhibits were admitted, although Petitioners' Exhibit V was admitted as corroborative hearsay only, pursuant to Section 120.58, Florida Statutes, and is not the basis of a finding of fact herein.
At the conclusion of the hearing, the parties availed themselves of their opportunity to present proposed findings of fact and conclusions of law and they requested that the filing date for those pleadings be extended to August 15, 1981, as well as conjunctively waiving the 30-day period for rendition of the recommended order.
On August 5, 1980, the Petitioners filed an application for a dredge and fill permit pursuant to Chapters 253 and 403, Florida Statutes, and Chapter 17-4, Florida Administrative Code, as well as for water quality certification pursuant to Chapter 401 of Public Law 92-500, as amended, United States Statutes At Large.
On March 20, 1981, the Department gave the Petitioners notice that it intended to deny their application for the permit and notified Petitioners of their right to a hearing pursuant to Sections 120.57, Florida Statutes, which right they chose to exercise.
The Petitioners own a tract of land adjacent to and partially within the landward extent of the Suwannee River in Dixie County, Florida. The Department of Environmental Regulation (Department) is an agency of the State of Florida charged with carrying out the mandates of Chapter 403, Florida Statutes, and the rules contained in Chapter 17, Florida Administrative Code, promulgated thereunder.
The Petitioners propose to embark on a project involving the dredging of a canal approximately 200 feet long in a generally westerly direction from the navigable portion of the Suwannee River through the river berm into the river swamp or floodplain. Across and perpendicular to the landward end of that access canal the Petitioners propose to construct a boat basin approximately 100 feet wide by 275 feet long in the swamp floodplain. The proposed excavation would be to a depth of 6.25 feet below mean sea level and approximately 9000 cubic yards of fill material would be deposited as-fill in the adjacent swamp floodplain remaining around the boat basin and access canal. A boat ramp would then be constructed into the boat basin. A retaining wall would be constructed around the excavated areas along the north and south property lines of the property owned by the Petitioners. The property to be developed by the Petitioners lies within the landward extent of the Suwannee River in Dixie County and the Suwannee River constitutes waters of the State over which the Department has dredge and fill permitting jurisdiction pursuant to Rule 17- 4.28(2)(a), Florida Administrative Code. The project area lies within an "outstanding Florida water" as defined in Rule 3.041(3)(g), Florida Administrative Code. The river terrace or "berm" on the property immediately adjacent to the navigable portion of the river is caused by the natural deposition of alluvial material. The landward extent of the State waters which are the subject matter of this proceeding cross the property immediately behind this terrace and connect with the navigable portion of the river on an adjacent parcel of property.
The proposed dredging operation would connect 37,500 square feet of a dead-end canal system excavated to minus 6.25 feet below mean sea level to the navigable portion of the Suwannee River. The dredging and filling operation would result in the permanent elimination of approximately 2.84 acres of the landward extent of the Suwannee River floodplain which is dominated by plant species listed in Rule 17-4.02(17) , Florida Administrative Code, which define jurisdiction of the Respondent. The proposed dredging and filling will cause and constitute a stationary installation reasonably expected to be a source of pollution. The Petitioners during the course of this application process cleared the subject property at least in part. Prior to that clearing operation, the terrace area was vegetated with bald cypress, blue beech, water hickory and sweet gum, with bald cypress and buttonbush becoming the dominant plant species progressing in a southerly direction along the terrace. Landward of the natural terrace or berm, the cypress-tupelo swamp was dominated by water tupelo, bald cypress, water ash, and buttonbush, all species listed in Rule 17- 402(17), Florida Administrative Code. An additional inspection conducted after the land-clearing operation revealed that the area was again sprouting or revegetating into the same swamp species, with the dominant species being bald cypress.
The swamp area in question provides flood protection as well as control of sedimentation by the storing of flood waters and the filtering of sediment and particulates 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. This also serves to augment the stream flow in the river itself during such periods. The proposed activity, by removing the trees and other plant species named above, as well as because of the dredging and filling of the swamp floodplain area, would cause degradation of local water quality. The swamp currently contributes to the maintenance of water quality in the navigable river itself by the filtering of sediment and particulates, as well as the assimilating, uptake and transforming of nutrients and other pollutants by the plant species growing on the site. The proposed project would destroy by tree- cutting, and the dredging and filling, this function of the swamp area in controlling pollution and promoting water quality in the river. The river swamp on this parcel of property, as well as on adjacent areas, serves as a habitat, food source and breeding ground for various forms of fish and wildlife. The proposed dredging and accompanying filling of the floodplain area with the associated removal of trees and other plants and increased turbidity would largely eliminate this function on the Petitioners' property and drastically alter the swamp area as a habitat, food source and breeding ground on adjacent areas, particularly downstream of the property.
The most notable long-term adverse impact of this project would include excessive turbidity caused by the removal of the subject plant species and the deposition of the fill in the floodplain area. Turbidity would be a special problem during times of excessive rain and high or flood waters in the river and adjacent swamp land. An additional long-term detrimental effect will be excessive nutrient enrichment in the area due to the removal of the filtrative and assimilative functions performed by the trees and other plant life across the entire width of the swamp. As a result the adjacent areas will be unable to fully 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.
Because of its physical design and dimensions and tangential exposure to river currents and tidal flow, the proposed canal and boat basin will be characterized by sluggish circulation and will lack sufficient flushing action to maintain water quality at an appropriate level, particularly with regard to dissolved oxygen content. The lack of adequate water exchange or flushing will lead to an accumulation of oxygen-demanding sediment and organic waste in the canal and boat basin. This accumulation results in low-dissolved oxygen content in the water and anerobic conditions, which result in a substantially decreasing ability for the water to support aquatic and other wildlife. The lack of water exchange will lead to an accumulation of nutrients which can result in explosive growth of noxious aquatic weeds. In turn, these weeds grow and decay and contribute through the decay process to the low-dissolved oxygen levels in the canal. Thus, the long-term effects will result in violations of water quality criteria for biochemical oxygen demand, nutrient content and dissolved
The cumulative effect of a proliferation of projects such as this one involving dredging of canals and associated filling, as well as filled roads across similar floodplain areas, will cause degradation of local water quality in violation of State standards both singly and in the aggregate. Such a project ultimately alters the hydro-period of the area, which is the average time during which flood waters are retained in the swamp and floodplain area for gradual, filtered release into the river itself. The altered hydro-period will result particularly from the removal of trees and other plant species which perform a filtrative function for flood waters and associated sediment. The removal of the plant life will result in a more rapid flow of waters through the subject swamp area which will prevent sediments from precipitating out of the water before it returns to the navigable river which effect will be heightened by the presence of the turbidity caused by the deposition of the fill material and its exposure to the erosive effect of flood waters.
The Petitioners additionally failed to show that the project was necessary in order for them to have access to the navigable portion of the river. The Department advocated prior to and during the hearing that a viable and acceptable alternative would be the construction of a walk-way or a bridge on pilings across the jurisdictional area in question connecting the two upland portions of the Petitioners' property. Although the bridge or walkway would require a permit, the Department took the position that it would not object to such a permit for an elevated wooden walkway and dock into the navigable portion of the river or a bridge for vehicles and an attendant boat ramp. The Petitioners did not agree to such a solution of the controversy. It should also be noted that access is available for the Petitioners to the waterward portion of the property from the navigable side of the river berm by boat.
The Petitioners contend they are entitled to a permit by default on the part of the Respondent. The Department received the application on August 5, 1980. Three days later on August 8, 1980, the Respondent requested additional information and informed the Petitioners that they had to present evidence of consent to the use of the State-owned land involved from the Board of Trustees of the Internal Improvement Trust Fund/Department of Natural Resources (DNR). The application was forwarded to the DNR on September 8, 1980. Another copy of the application was forwarded to the DNR on January 8, 1981. A letter from DNR to the Petitioners on approximately March 9, 1981, indicates that the application was held in abeyance pending notification of action by the DER, the Respondent herein. Ultimately, the DNR by letter of March 19, 1981, acknowledged receipt of payment for the subject fill material, but elected not to formally consent or reject the project. It has been the practice of the Respondent Department to await a DNR consent or rejection prior to issuance of
its notice of proposed agency action. The Department issued its intent to deny by letter on March 20, 1981, which was 43 days after the Petitioners' last modification of its application on February 5, 1981. Thus, the application was not complete until February 5, 1981, since the Petitioners never furnished the lawfully requested information until that date.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties to and the subject matter of these proceedings. Section 120.57(1), Florida Statutes.
Article II, Section VII 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:
(3) . . . 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 of the State to conserve State waters and to protect, maintain and improve the quality thereof for the propagation of wildlife, fish and other aquatic life and other beneficial uses. That section further provides that prevention, abatement and control of pollution of the waters of the State are clothed with or affected by a public-interest.
Section 403.087, Florida Statutes, 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, then 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(S) Florida Statutes, in turn defines "installation" to include any structure, equipment or operation which may admit contaminants in quantities prohibited by rules promulgated by the Department.
The record in this proceeding establishes without question that the project proposed by the Petitioners will constitute a stationary installation reasonably expected to be a source of water pollution within the meaning of the above section and thus a permit is required. Sexton Cove Estates, Inc., vs. State Pollution Board, 325 So.2d 468 (Fla. 1st DCA 1976). See also Farrugia vs. Frederick, 344 So.2d 921 (Fla. 1st DCA 1977).
The landward extent of State waters is determined by criteria provided in the form of a vegetative index contained in Rule 17-4.02(17), Florida Administrative Code, which provides that State waters over which the Department has jurisdiction are defined by the presence of one or more of the enumerated species of plants growing thereon as the dominant species. There is no question that the expert testimony and other evidence in this record shows that the Petitioners' project lies within the landward extent of State waters of the Suwannee River. The Petitioners' reliance on Rule 17-4.28(2)(g), Florida Administrative Code, regarding the exclusion from jurisdiction of water courses which do not normally contain contiguous areas of standing water, and which act as only intermittent tributaries following rainfall, is inapposite. The area in question is not a tributary. The record reflects in an unrefuted way that it is within the landward extent of the Suwannee River itself, pursuant to the above rule, and does not involve a tributary stream of any form.
The Suwannee River is designated as an "outstanding Florida water." This designation, listed in Rule 17-3.041 (4)(g), Florida Administrative Code, establishes that the river is of exceptional recreational or ecological significance. That rule provides that it is the policy of the Respondent to afford the highest protection to such waters. The river also falls within the designation of "Class III Waters of the State" as provided in Rule 17-3.161, Florida Administrative Code. The outstanding Florida waters classification is, of course, composed of stricter criteria than the Class III waters criteria, which are enumerated in Rules 17-3.051, 17-3.061 and 17-3.121, Florida Administrative Code.
Rule 17-4.242, Florida Administrative Code, provides a two-part test for determining whether a permit should be issued for a stationary installation with regard to water quality criteria. Initially, the discharge or activity involved must be in the public interest. Secondly, either of the following muse 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. Rule 17-4.242(1)(a)2, Florida Administrative Code.
That Rule continues to provide:
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 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. Rule 17-4.242(1)(b) Florida Administrative Code.
The expert testimony and evidence adduced by the Respondent in this record which was unrefuted by the Petitioners, establishes that the project will not meet either of the tests mandated by the above rule. Both tests must be complied with in order for a permit to be issued. Thus, the project is impermissible under Rule 17-4.242(1)(b), Florida Administrative Code.
Rule 17-4.28(3), Florida Administrative Code, provides that the applicant for a permit to conduct a dredging and filling operation in or connecting to State waters must provide affirmative reasonable assurances that the project will not result in a violation of water quality criteria in both long and short-term effects. The Petitioners herein failed to establish that this 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 pertinent water quality standards, including ambient levels protected in outstanding Florida waters will occur if the project is performed. Thus, the project cannot be found to be in the public interest.
In the face of the Respondent's expert testimony and evidence establishing that the specific State water quality standards contained in Sections 17-3.061, 17-3.121, 17-3.131, Florida Administrative Code, will be violated, the Petitioners presented no preponderant evidence supportive of their position that no degradation of water quality would occur. The unrefuted evidence adduced by the Respondent established that degradation of existing ambient water quality would occur by the fact of the existence of this project alone, as well as its cumulative effect with other such projects which have already been constructed in the same floodplain area. The cumulative impact of the proliferation of such dredge and fill projects is a legally recognized consideration. Walton vs. State of Florida, Department of Environmental Regulation, DOAH Case No. 80-2315, Final Order entered June 12, 1981. Section 403.088, Florida Statutes, recognizes the necessity of a review of such a cumulative effect. Thus, no person is allowed to discharge wastes which by themselves, or in conjunction or combination with other discharges, will reduce the quality of receiving State waters below standards embodied in Chapter 17, Florida Administrative Code. The Petitioners' project was clearly shown by the Respondent to reduce the quality of the receiving waters below the above delineated classification standards, as well as posing a substantial exacerbating influence on the receiving waters of the river in conjunction with degradation caused by other such projects.
The Petitioners have asserted they are entitled to a permit by default, asserting that the Department was required to submit its biological report to the Department of Natural Resources (DNR) and failed to timely do so. Chapter 253, however, as well as the rules of DNR do not require the submission of such a report from the Respondent. Section 253.77, Florida Statutes (1980 Supplement), provides that:
No . . . agency of the State possessing regulatory powers involving the issuance of permits shall issue any permit, license or other evidence of authority involving the use of sovereignty or other lands of the state, title to which is vested in
the Board of Trustees of the Internal Improvement Trust Fund or the Department of Natural Resources under Chapter 253, until the applicant
for such permit, license or other evidence or permission shall have received from the Board of Trustees of the Internal Improvement Trust Fund the required lease, license easement or other form of consent authorizing the proposed use and exhibited it to such agency or department or subdivision thereof having regulatory power to permit such use.
The permitting agency shall within 30 days after receipt of a permit application, notify the
applicant and the executive director of the Department of Natural Resources or his designee that a lease, license,
easement or other form of consent of the Board of Trustees of the Internal Improvement Trust Fund authorizing the proposed use may
be required . . . (Emphasis Supplied)
The Department herein complied with the notification requirements of Subsection (2) above by notifying the applicant within 30 days that the above consent was required and it notified the DNR within 33 days. It is true that the notification to the DNR was 3 days late, but no resultant prejudice to the rights of the applicant was shown sufficient to give rise to a default pursuant to Section 120.60, Florida Statutes. The Section 120.60 time period of 30 days for requesting additional information was complied with by the Department in that it timely requested that the applicant provide evidence of the above DNR consent.
The Petitioners also assert that the default occurred on the part of the Department because it failed to respond to a letter requesting a hearing which the Department received February 5, 1981, prior to the entry of the notice to intent to deny the permit. Pursuant to Section 120.57, Florida Statutes, such a hearing request should normally be granted or denied within 15 days. The Department responded to the request for hearing 19 days later on February 24, 1981, but the additional delay was occasioned by the Petitioners' misfiling of the letter request for hearing. In any event, the Petitioners were not entitled to a hearing prior to the formulation of proposed agency action since they were not substantially affected for purposes of Section 120.57, Florida Statutes, until after the agency took a position and issued its Notice of Intent to Deny. Thus, a default did not occur under these circumstances.
In short, the evidence in the record indicates that the application remained incomplete due to the lack of Section 253.77, Florida Statutes, approval of the project by DNR and therefore the delay was caused by the Petitioners' not securing that approval, rather than the Department's failure to submit a biological report to the local Board of County Commissioners and, since DNR has not yet issued its consent to the proposed dredging and removal of fill, the application actually still remains technically incomplete. The Department properly tolled the running of the time clock by requesting evidence of consent as it is permitted to do by Section 253.77, within 30 days of the receipt of the application. Since the Petitioners waived their right to challenge this request for information by the agency pursuant to Section 403.0876, Florida Statutes, and since the application remains incomplete, there can be no default on this basis. Further, the evidence shows that the Petitioners made modifications to the application a number of times, the last being on February 5, 1981, when they again requested that the application be processed as originally filed. The Department then issued its letter of Intent to Deny on March 20, 1981, 43 days after the last modification was filed. Thus, the Department acted well within
90 days of the last modification to the application and the petition for hearing was timely filed 14 days thereafter. It is therefore concluded that the Petitioner failed to provide affirmative reasonable assurances that the proposed project will not result in violations of the water quality standards described above with regard to both the short-term and long-term effects on the subject State waters. The preponderance of the evidence also demonstrates that the proposed project will cause pollution in contravention of Chapter 17 of the Florida Administrative Code, as well as the above statutory authority.
Having considered the foregoing-findings of fact, conclusions of law, the candor and demeanor of the witnesses and the pleadings and arguments of counsel, it is therefore
RECOMMENDED that the petition of Raymond H. Hodges, Jr., and Anne G. Hodges for a dredge and fill permit be
DENIED.
DONE AND ENTERED this 16th day of October, 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 16th day of October, 1981.
Raymond H. Hodges, Esquire Post Office Box 1688
