STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JIMMIE L. MILLS, )

)

Petitioner, )

)

vs. ) CASE NO. 81-1696

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

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice the Division of Administrative Hearings, by its designated Hearing Officer, Michael Pearce Dodson, held the final hearing in this case on August 28, 1981, in Tallahassee, Florida. The following appearances were entered:

APPEARANCES

For Petitioner: Jimmie L. Mills, pro se

Route 2, Box 244

Hawthorne, Florida 32640

For Respondent: Silvia Morell Alderman, Esquire

Cynthia K. Christen, Esquire Department of Environmental Regulation Twin Towers Office Building

2600 Blair Stone Road Tallahassee, Florida 32301

PROCEDURAL BACKGROUND

These proceedings began on April 20, 1981, when Petitioner, Jimmie L. Mills, filed an application for a dredge and fill permit from the Respondent, Department of Environmental Regulation (DER) to dredge along the shore of South Bull Pond and fill on his lake front. By a letter dated June 12, 1981, DER gave notice of its intent to deny the application. On June 15, 1981, Petitioner requested an administrative hearing on his permit application. The case was forwarded on June 26, 1981, 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 and offered no exhibits. Respondent presented Mr. John Hendrix and Mr. Jeremy Tyler as its witnesses and offered Exhibits 1-7 which were received into evidence.

The receipt of Exhibit 5 is limited to show only that the United States Fish and Wildlife Service is opposed to the proposed project. All the other facts asserted in that exhibit are hearsay and are not received.

At the conclusion of the hearing pursuant to Section 120.57(1)(b)4, Florida Statutes (Supp. 1980), the parties were informed of their right to file proposed findings of fact and proposed recommended orders. DER filed an excellent proposed order containing findings of fact. To the extent that the proposed findings submitted by the Department are not reflected in this order, they are rejected as being either not supported by admissible evidence or as being irrelevant to the issues determined here. Agrico Chemical Company v. Department of Environmental Regulation, 356 So.2d 759, 763 (Fla. 1st D.C.A. 1978).

FINDINGS OF FACT

1. Mr. Mills owns a 105 acre tract of land on which he raises cattle. This land is directly east of South Bull Pond in Putnam County, Florida. The land which he proposes to fill lies within the landward extent of South Bull Pond. The pond is a natural lake of approximately 350 acres which does not become dry each year. The lake has a maximum average depth of greater than 2 feet throughout the year. Its shoreline is owned by more than one person. South Bull Pond is a Class III water of the State of Florida.

   
   

2. Petitioner's proposed project involves the excavation of approximately 5,000 cubic yards of sand and muck from the lake bottom. He plans to place the fill in an area adjacent to the dredge site but within the landward extent of the lake. The area to be excavated is 200 feet long and 50 feet wide. The area to be filled with spoil material is the same size immediately to the east of the dredge area. The excavation will be approximately three feet deep into the lake bottom. Mr. Mills' application indicates that the purpose of the proposed work is to keep his cows out of the bog and also to increase the value of his property.

   
   

3. The proposed dredging and filling will result in the permanent elimination of approximately one-half acre of natural vegetation along the lake. This area consists of a natural berm formed by alluvial deposits and a wet bog landward of the berm. There is an opening through the berm which allows the free exchange of waters between the main body of the lake and the bog area.

   
   

4. The top elevation of the berm is such that the berm area is submerged for long periods of time. Ordinary high water inundates the berm and passes over it into the bog which is at a lower elevation than the berm.

   
   

5. The field appraisal of the proposed site was conducted by Mr. John Hendrix, a Department biologist, on May 5, 1981. The site consists of three areas: the lakeshore, the berm, and the bog. The dominate species along the lakeshore are Saw grass (Cladium jamaicensis), Water Lily (Nymphaea spp.), Pickerelweed (Pontederia lanceolata), and Spatter dock (Nuphar spp.). The dominant fresh water species on the berm are: Saw grass (Cladium jamaicensis), and Arrowhead (Sagittaria spp.). Two transitional fresh water species also grow on the berm: St. John's wort (Hypericum fasciculatum) and Button bush (Cephalanthus occidentalis). The dominant species of the bog, which is landward of the berm, are Water Lily (nymphaea spp.), Water shield (Brasenia schreberi), Royal fern (Osmunda regalis), and Arrowhead (Sagittaria spp.).

   
   

6. The lake is presently mesotrophic. It has a large productive vegetative structure primarily along the shoreline. The nutrients are "tied up" or stored in the marshes and peaty sediments of this shoreline and are not freely circulating in the main water body.

7. The shoreline vegetation provides filtration for the main water body. The plants physically entrap sediments and biochemically assimilate them. They also store nutrients which otherwise degrade the water in the lake.

   
   

8. The proposed dredging and filling will degrade water quality in two ways: 1) The equipment used for dredging will disrupt the sediments. They will then discharge freely into the water column of the lake and release their stored nutrients. 2) The berm and bog areas will be destroyed so that they can no longer stabilize the shoreline or provide the filtration function.

   
   

9. Adverse water quality impacts from the project will be both short and long term. The short terms impacts include expected violations of the following water quality criteria found in Chapter 17-3, Florida Administrative Code: BOD; dissolved oxygen; transparency; biological integrity; turbidity; pH; nuisance species; and both nutrients criteria. The long term impacts will include stimulation of shifting of the natural balance of the lake towards a more eutrophic state and violation of the water quality criteria for nutrients, dissolved oxygen, BOD and transparency.

   
   

10. Petitioner wants to fill the bog to prevent injury to his cows. A workable alternative to filling the bog is to erect a fence across the property to exclude the cows from that area.

    
    

11. The drawings submitted by Petitioner as part of his application show that the operation of the dredging machinery would be from the berm. During the hearing Petitioner indicated that such machinery would be operating from the lakeshore. This modification would create fewer short term violations of water quality criteria. However, the following criteria would still be violated:

    BOD, turbidity, nuisance species, biological integrity, dissolved oxygen, transparency and nutrients.

    
    

    CONCLUSIONS OF LAW

    
    

12. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter of this case. Sections 120.57(1) and 120.60, Florida Statutes.

    
    

13. The Department of Environmental Regulation has permitting jurisdiction over the proposed project. Sections 403.031(3) and 403.087, Florida Statutes. Sections 17-4.02(17) and 17-4.28(2), Florida Administrative Code. To dredge and fill in waters of the state a permit applicant must comply with the provisions of Section 17-4.28(3), Florida Administrative Code, which provides:

    
    

    The applicant for a dredge and/or fill permit or a federal certification for a dredging and/or filling activity shall affirmatively provide reasonable assurances to the department that the short term and long term effects of the activity will not result in violations of the state water quality criteria, standards and requirements and provisions of Chapter 17-3, Florida Administrative Code.

14. Mr. Mills has failed to meet this requirement. He presented no evidence that his project which covers approximately one half acre of productive fresh water vegetation will not result in violations of the water quality criteria for a Class III water of the state as set out in Chapter 17-3, Florida Administrative Code. Because he has not met his burden of affirmatively providing reasonable assurances, his permit application must be denied. Section 17-4.28(3), Florida Administrative Code.

    
    

15. Throughout these proceedings Petitioner has not contested the Department's evidence. What he objects to is the regulation by the Department of how he uses his private property. While his concern is genuine he has not demonstrated that the restrictions imposed of Chapter 403, Florida Statutes, and its attendant rules significantly deprive him of the beneficial use of his land. Graham v. Estuary Properties, Inc., 399 So.2d 1374, 1380-1383 (Fla. 1981).

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 Petitioner's permit application.

DONE AND ENTERED this 14th day of October 1981 in Tallahassee, Florida.

MICHAEL PEARCE DODSON

Hearing Officer

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 14th day of October 1981.

COPIES FURNISHED:

Jimmie L. Mills Route 2, Box 244

Hawthorne, Florida 32640

Silvia Morell Alderman, Esquire Cynthia K. Christen, Esquire Assistant General Counsel

Department of Environmental Regulation 2600 Blair Stone Road

Tallahassee, Florida 32301

Docket for Case No: 81-001696

Orders for Case No: 81-001696