STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

AUDOBON SOCIETY OF SOUTHWEST ) FLORIDA and FLORIDA AUDOBON ) SOCIETY, )

)

Petitioners, )

)

vs. ) CASE NO. 81-2307

)

LEE COUNTY BOARD OF COUNTY )

COMMISSIONERS and STATE OF )

FLORIDA, DEPARTMENT OF )

ENVIRONMENTAL REGULATION, )

)

Respondents, )

)

vs. )

) RALPH MARCIANO, CLAUDIA TIPTON, )

H. MARK STRONG and COMMUNITY ) COUNCIL OF LEHIGH ACRES OF )

FLORIDA, INC., )

)

Intervenors. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative

Hearings, by its duly designated Hearing Officer, William E. Williams, held a public hearing in this cause on February 10 and 11, 1982, in Fort Myers, Florida.

APPEARANCES

For Petitioners: Charles Lee

1101 Audubon Way

Maitland, Florida 32751

For Respondents: Charles G. Stephens, Esquire

Assistant General Counsel

Department of Environmental Regulation 2600 Blair Stone Road

Tallahassee, Florida 32301

Robert A. Routa, Esquire

217 South Adams Street Tallahassee, Florida 32301

For Intervenors: L. M. Buddy Blain, Esquire

Post Office Box 399 Tampa, Florida 33601

On September 11, 1981, the State of Florida, Department of Environmental Regulation ("DER"), forwarded to the Division of Administrative Hearings, pursuant to Section 120.57(1)(b)(3), Florida Statutes, the petition of the Audubon Society of Southwest Florida ("ASSWF") opposing DER's issuance of a permit to the Board of County Commissioners of Lee County, Florida ("Lee County"), to dredge and fill in order to extend Colonial Boulevard in Lee County through an area known as the Six Mile Cypress Strand or Six Mile Cypress Slough. The petition of ASSWF alleged that Lee County's permit was issued on August 14, 1981, was not preceded by notice from DER of intent to issue that permit, that ASSWF received a copy of the permit on August 27, 1981, and that the proposed dredging and filling would cause environmental damage in the Strand, including areas of the Strand used by ASSWF members.

On September 21, 1981, Lee County moved to dismiss the petition of the ASSWF on grounds that the issuance of the permit was final agency action, and that, at the time of the filing of the petition, ASSWF had no standing to contest the issuance of the permit. Prior to hearing on that motion, on October 15, 1981, the Audubon Society of Florida ("Audubon") filed a verified petition to intervene, pursuant to Section 403.412(5), Florida Statutes, alleging environmental damage and standing pursuant to the aforementioned statute.

Concurrently, ASSWF moved to amend its petition to adopt the allegations contained in Audubon's petition. At hearing, the Hearing Officer ruled that, as a matter of law, ASSWF had fourteen (14) days from actual notice under the facts involved in this case to request a Section 120.57(1) , Florida Statutes, hearing, and that both groups had alleged facts which, if proven, would establish their standing under Section 403.412(5), Florida Statutes.

After hearing on a Motion for Clarification filed by Lee County, the Hearing Officer ruled, pursuant to stipulation between counsel for all parties, that he would consider and determine whether DER had jurisdiction under Chapter 253, Florida Statutes, over the proposed project and, if so, whether the requirements of that statute had been met in the application.

On February 2, 1982, Ralph Marciano, Claudia Tiptor and H. Mark Strong filed a petition to intervene in this proceeding in support of the permit application. The Community Council of Lehigh Acres concurrently filed a similar petition. Audubon and ASSWF objected to the petition to intervene on the grounds that the would-be intervenors had not alleged facts sufficient to establish their standing to participate in the proceeding. The Hearing Officer allowed counsel for both intervening groups to participate in cross-examination of witnesses, holding that all parties would be bound by the prehearing stipulation, and reserved ruling on the question of the intervenors' standing.

Certain stipulations were then entered into by counsel for all parties concerning facts alleged in the petitions to intervene.

At the final hearing, Lee County called William L. Todd, II; Dr. Martin Roessler; Dr. Taylor Alexander; William A. Pitt, Jr.; Bruno Ferraro and Benjamin

1. Pratt as its witnesses. Lee County offered Respondents' Exhibits 13 through 25, each of which was received into evidence. DER called Jeremy A. Craft and Dan Garlick as its witnesses. Audubon and ASSWF called David Key, Richard W. Cantrell, Joseph R. Donahue and Kevin L. Erwin as its witnesses. Audubon and ASSWF offered Petitioner's Exhibits 6, 11, 12 and 26, and DER offered its Exhibits 1 through 5 and 7 through 10, each of which was received into evidence.

   Each of the parties to these proceedings have filed proposed findings of fact for consideration by the Hearing Officer. To the extent that those proposed findings of fact are not contained in this Recommended Order, they have been specifically rejected as either being irrelevant to the issues involved in this proceeding, or as not having been supported by evidence of record.

   
   

   FINDINGS OF FACT

   
   

   1. On April 2, 1981, Lee County applied to DER for a permit to construct an extension of Colonial Boulevard east to State Road 82B by dredging 4,600 cubic yards of material landward of the ordinary high water mark, and by depositing 83,000 cubic yards of fill landward of the ordinary high water mark in an area of Lee County known as the Six Mile Cypress Strand or Six Mile Cypress Slough. The permit application was made by Lee County on standard DER forms which would have been appropriate for an application under either or both Chapters 253 or 403, Florida Statutes. Additionally, Lee County tendered a permit application fee to DER sufficient to cover the cost of an application under both statutes. After review of the application, DER determined that it had no jurisdiction under Chapter 253, Florida Statutes, and refunded to Lee County that portion of the permit application fee required for a Chapter 253 permit. As indicated above, Lee County's application, on its face, reflected that no fill material or dredging was proposed waterward of the ordinary high water mark.

      
      

   2. The Six Mile Cypress Strand is a meandering swamp, approximately 44,000 acres in size, dominated by cypress trees. At periods of high water the waters of the swamp empty into Ten Mile Canal, an artificial water body which connects to Estero Bay by way of Mullock Creek, a natural stream. All water bodies involved in this proceeding are classified as Class III waters.

      
      

   3. Six Mile Cypress Strand functions as a major aquifer recharge area for the eastern central portion of Lee County. The area drained by the Strand receives approximately 54 inches of rainfall annually. The wetland vegetation and uneven contours of the Strand allow the assimilation of nutrients and reduction in turbidity and erosion which could otherwise adversely affect downstream waters. The drainage area north of the proposed project consists of approximately 5,000 acres, or 11 percent of the total drainage basin served by the Strand.

      
      

   4. The proposed roadway would cross the Strand through a corridor which contains three cypress heads, or flag ponds. These ponds generally retain water during dry periods and support a more diverse community of aquatic life than those portions of the Strand which become completely dry. At the time of final hearing in this cause, these ponds exhibited dry season characteristics and contained less than one foot of water in their deepest portions.

      
      

   5. During low water periods the Strand itself may be virtually dry except for standing water in the vicinity of cypress heads and flag ponds. Only during the rainy season, which occurs during approximately four months of the year, does the Strand contain standing water. During high water periods, however, water may flow continuously throughout the length of the Strand. During these latter periods, canoes and other such small water craft may be able to negotiate portions of the Strand. No evidence was presented, however, which would indicate that the Strand is now or has ever been utilized, or is susceptible to utilization, for commercial boat traffic.

   6. The lands in the Strand over which Lee County proposes to build the roadway were conveyed by the Trustees of the Internal Improvement Trust Fund to private ownership after having been acquired from the federal government under the Swamp and Overflow Grant Act of 1850. The Strand was not meandered in the original government survey of the area, and, in fact, the surveyor's field notes reflect that the area of the Strand was densely vegetated and crossed by several roads, including one crossing the section line in the same vicinity proposed for the Colonial Boulevard extension. The existence of this last referenced road is corroborated by biological evidence presently existing on the site, and from examinations of full infrared aerial photography of the area. It is approximately nine miles from the Strand to the nearest meander line contained in the original government survey. Further, evidence of record in this proceeding establishes that water craft may not presently be navigated from Estero Bay into the Strand because of man-made barriers, and no record evidence establishes that such navigation would have been possible at the time of Florida's admission to statehood in 1845 when the stream presumably was in its natural condition.

      
      

   7. The Department of Natural Resources was notified in accordance with DER policy, of the pendency of Lee County's application, and asserted no claim of ownership over sovereignty lands in the area of the proposed project.

      
      

   8. The design for the proposed roadway includes a system of collector and spreader swales on the upstream and downstream sides of the Strand, respectively, connected by large culverts to be located beneath the roadway. The swales and culverts are intended to minimize interruption of the Strand's hydroperiod, the natural fluctuation and flow of waters within the affected

      portion of the Strand. A vegetated swale system paralleling the roadway is also included in the proposed roadway design to provide treatment and nutrient uptake from storm water runoff generated from the surface of the roadway. In addition, the toe of the slope of the roadway will be replanted with native vegetation, and the edge of the fill area will be meandered to save some existing vegetation.

      
      

   9. It is anticipated that the roadway could result in runoff containing from .17 to .18 pounds per day of nitrogen, and from .01 to .07 pounds per day of phosphate. The grassy swales proposed for inclusion in the project design have the capability of assimilating from 1.8 to 3.6 pounds of these nutrients per day, thereby ensuring a significant safety factor. It can also reasonably be anticipated that the swale areas are capable of absorbing any BOD loading from the roadway surface. As a result, it can reasonably be anticipated that the construction of the project will not result in the discharge of nutrients into the Strand, and that any heavy metals will be bound in organic sediments and not result in degradation of existing water quality. Ambient water conditions in the Strand show low dissolved oxygen content together with high biochemical oxygen demand, neither of which should be exacerbated by construction of the project. No violation of water quality criteria relating to herbicides is anticipated in view of Lee County's commitment at final hearing in this cause to control vegetation by way of mowing instead of by the use of herbicides.

      
      

   10. The proposed construction will, of course, destroy aquatic vegetation in the area lying in the path or "footprint" of the roadway itself, consisting of approximately seven and one-half acres, three acres of which are

       predominantly cypress. However, because of the design features of the proposed roadway, including grass, collector and spreader swales and the culvert system, the anticipated impact on the hydroperiod upstream and downstream of the project, and thereby the effect on aquatic vegetation and water quality will not be significant.

       
       

   11. Construction fabric will be used to allow the road surface to be supported without demucking, thus minimizing turbidity during construction periods, although it is intended that construction be conducted during the dry season, thereby further reducing the potential for turbidity violations. Further, the detention swales which are to be equipped with French drains are designed to retain the first inch of rainfall. Culverts to be constructed on the roadway are designed to accommodate a 50-year, 24-hour storm event.

       
       

   12. The Secretary of DER issued the subject permit on August 18, 1981, without any prior notice of intent. ASSWF received notice of DER's action in the form of a complete copy of the permit on August 27, 1981. On September 2, 1981, ASSWF filed its petition requesting a formal Section 120.57(1), Florida Statutes, hearing. This petition was received by DER on September 8, 1981.

       
       

   13. ASSWF and Audubon, and the members of these organizations, use the Six Mile Cypress Strand in the vicinity of the proposed project for field trips and environmental education activities which will be impacted should the project be approved. In addition, Audubon owns property within the Strand which may also be affected by the proposed project if permitted.

       
       

   14. Intervenors, Community Council and Lehigh Acres of Florida, Inc., Ralph Marciano, Claudia Tipton and H. Mark Strong requested to be granted party status in this proceeding in support of the application. Ralph Marciano owns a business allegedly limited because of the present poor highway access to the business center of the city. Claudia Tipton owns an electrical construction business alleged to be seriously hampered because of extended transportation time in emergency trips. H. Mark Strong is a retired fire marshal and contends that paramedics are seriously hampered in transporting emergency patients to the community hospital located in Fort Myers. The Community Council of Lehigh Acres was formed to serve as a council representing the entire community of Lehigh Acres on problems and projects affecting the health, welfare, growth and prosperity of Lehigh Acres. Essentially, these intervenors assert that the general public welfare and, in some cases, their own personal business interests, will be enhanced by building the proposed roadway, thereby enhancing vehicular access to various portions of the community.

       
       

       CONCLUSIONS OF LAW

       
       

   15. The Division of Administrative Hearings has jurisdiction over the subject matter of and the parties to this proceeding. Section 120.57(1), Florida Statutes.

       
       

   16. ASSWF and Audubon have standing, to challenge the issuance of the requested permit. Section 403.412(5), Florida Statutes.

   17. Intervenors, Ralph Marciano, Claudia Tipton, H. Mark Strong and Community Council of Lehigh Acres of Florida, Inc., have failed to establish that their environmental as opposed to their economic or social interests will be affected by agency action in this proceeding. They have, therefore, failed to establish standing to participate as "parties" within the meaning of Section 120.57(1), Florida Statutes. Agrico Chemical Co. v. Dept. of Environmental Regulation, 406 So.2d 478 (Fla. 2d DCA 1981)

       
       

   18. DER has regulatory jurisdiction over the proposed project site pursuant to Chapter 403, Florida Statutes, and Rules 17-4.02(17) and 17-4.28, Florida Administrative Code. Accordingly, a permit is required prior to undertaking the work described in the permit application. Section 403.087(1), Florida Statutes.

       
       

   19. It is well settled that a permit applicant has the burden of establishing its entitlement to the issuance of the requested permit. Florida Department of Transportation v. J.W.C. Company, Inc., 396 So.2d 778 (Fla. 1 DCA 1981), Rule 17-1.62, Florida Administrative Code. It is equally axiomatic that ". . . the burden of proof . . . is on the party asserting the affirmative of an issue before an administrative tribunal." Balino v. Department of Health and Rehabilitative Services, 348 So.2d 349,350 (Fla. 1 DCA 1977).

       
       

   20. The application filed by Lee County in this proceeding sought authorization only to place fill landward of the ordinary high water mark, thereby invoking only the Chapter 403, Florida Statutes, jurisdiction of DER. ASSWF and Audubon, however, have asserted in this proceeding that DER also has jurisdiction pursuant to the provisions of Chapter 253, Florida Statutes, and by stipulation of counsel the Hearing Officer received testimony on this issue. Accordingly, for purposes of this proceeding, Lee County bears the burden of proving its entitlement to the issuance of a permit under Chapter 403, Florida Statutes, and ASSWF and Audubon bear the burden of proof with respect to the existence of jurisdiction over the project area under Chapter 253, Florida Statutes.

       
       

   21. Based upon the facts of record in this proceeding, it is concluded, as a matter of law, that ASSWF and Audubon have failed to demonstrate the existence of jurisdiction under Chapter 253, Florida Statutes, over the project area.

       See, Odom v. Deltona Corporation, 341 So.2d 977 (Fla. 1976).

       
       

   22. In order to entitle it to the issuance of the requested permit under Chapter 403, Florida Statutes, Lee County is required to . . . affirmatively provide reasonable assurance to [DER] that the short term and long term effects of the proposed activity will not result in violations of the water quality criteria standards, requirements and provisions of Chapter 17-3, Florida Administrative Code Rule 17-4.28(3), Florida Administrative Code. It is specifically concluded, based upon the foregoing findings of fact, that the preponderance of the evidence in this proceeding establishes that the proposed project will not cause pollution in contravention of DER rules, and further will not result in violations of DER water quality standards.

RECOMMENDED ORDER

Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that DER enter a final order issuing the requested permit for

the construction of the Colonial Boulevard extension across the Six Mile Cypress Slough, subject to ordinary permit conditions to minimize adverse impacts on water quality during construction and to ensure effective construction and operation of storm water controls.

ENTERED this 21st day of May, 1982, in Tallahassee, Florida.

WILLIAM E. WILLIAMS

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 21st day of May, 1982.

COPIES FURNISHED:

Charles Lee

1101 Audubon Way

Maitland, Florida 32751

Charles G. Stephens, Esquire Assistant General Counsel Department of Environmental

Regulation

2600 Blair Stone Road Tallahassee, Florida 32301

Robert A. Routa, Esquire

217 South Adams Street Tallahassee, Florida 32302

L. M. Buddy Blain, Esquire Post Office Box 399

Tampa, Florida 33601

Victoria Tschinkel, Secretary Department of Environmental

Regulation

Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32301

Docket for Case No: 81-002307

Orders for Case No: 81-002307