R. VANN, )
)
Petitioner, )
)
vs. ) CASE NO. 82-214
) STATE OF FLORIDA, DEPARTMENT ) OF ENVIRONMENTAL REGULATION, )
)
Respondent. )
)
RECOMMENDED ORDER
Pursuant to notice, a formal administrative hearing was conducted in this matter on October 6, 1982, in Daytona Beach, Florida.
The following appearances were entered:
APPEARANCES
For Petitioner: Richard J. Dungey, Esquire
Anderson and Dungey, P.A.
525 south Camden Avenue Post Office Box 288 Stuart, Florida 33495
For Respondent: J. Alan Cox, Esquire
Department of Environmental Regulation 2600 Blair Stone Road
Tallahassee, Florida 32301
Petitioner has filed an application with the Department of Environmental Regulation for a permit to conduct dredging and filling operations on property that he owns in Volusia County, Florida. By letter dated January 8, 1982, the Department gave notice of its intent to deny the application. Petitioner requested a formal hearing, and the matter was forwarded to the office of the Division of Administrative Hearings for the assignment of a Hearing Officer and the scheduling of a hearing. The matter was originally assigned to a Hearing Officer who became ill. It was reassigned to the undersigned, and a hearing was scheduled to be conducted on August 6, 1982. Petitioner requested a continuance of the hearing, which was granted, and the final hearing was scheduled to be conducted as set out above by notice dated July 22, 1982.
At the final hearing, the Petitioner testified as a witness on his own behalf and called the following additional witnesses: Paul J. Hunt, the Director of the East Volusia County Mosquito Control District; Michael S. Zimmerman, a dredge and fill field inspector employed with the Department of Environmental Regulation; and Millard Goodrich, Cecil Goodrich, Broward Goodrich, and Curtis Vann, all of whom reside in close proximity to the location of the proposed project. The Department recalled the witnesses Hunt and
Zimmerman, and called the following additional witnesses: Jim Hulbert, the Supervisor of the Department's Biology Section; and Reece H. Kessler, Jr., the Supervisor of the Dredge and Fill Section in the Department's Orlando office. Petitioner's Exhibits 1 through 8, Respondent's Exhibits 1 through 16, and public Exhibit 1 were offered into evidence and received.
The parties have submitted post-hearing legal memoranda which include proposed findings of fact and conclusions of law. The proposed findings and conclusions have been adopted only to the extent that they are expressly set out in the Findings of Fact and Conclusions of Law which follow. They have been otherwise rejected as contrary to the evidence, not supported by the evidence, irrelevant to the issues, or legally erroneous.
ISSUES
The issues to be resolved in this proceeding are whether the Department of Environmental Regulation has jurisdiction over the Petitioner's property and the project proposed by Petitioner; and, if so, whether the Petitioner's application for a permit should be granted or denied. Petitioner contends that his property is not within the Department's jurisdiction. Petitioner also contends that his proposed project would have no negative impact upon the water quality in areas adjoining his property. The Department contends that it has jurisdiction over the property and that Petitioner has not provided reasonable assurance that the proposed project will not result in violation of the Department's water quality standards.
FINDINGS OF FACT
The Petitioner owns five acres of land in Oak Hill, Volusia County, Florida. The property straddles "River Road" and is bounded on the east by the Indian River. Approximately 1.5 acres of the property lies to the east of River Road. The remainder lies to the west.
In its natural condition, Petitioner's property was a salt marsh area contiguous to the river. The construction of River Road did not cut the Petitioner's property off from the Indian River because there was a bridge or culvert system which allowed water from the Indian River to flow onto Petitioner's property during wet seasons. Approximately eighteen to twenty years ago, Volusia County engaged in a mosquito control program. Ditches were dug adjacent to the property which Petitioner now owns, and across the property. The effort was to turn the area into an "impoundment area" by blocking the culverts which connected the area to the Indian River. In this manner, water could be kept at a higher level in the impoundment area so as to render the area unviable as mosquito breeding territory.
The culverts which provide the only potential connection between the waters of the Indian River and Petitioner's property lie approximately 1,000 feet south of Petitioner's property. At various times, sandbags have been placed across the culvert openings so as to prevent the interchange of waters between the impounded area and the Indian River. The Mosquito Control District has replaced these sandbags on at least two occasions during the past twenty years. The bags have been removed by unknown persons. At the time of the hearing, these sandbags were not in place. Water levels in the Indian River were quite high at the time of the hearing as a result of the rainy season, and water from the river was flowing freely through the culverts into the impoundment area. Saltwater from the river could flow easily through the mosquito control ditches onto Petitioner's property.
It appears that the focus of the mosquito control program in Volusia County is to maintain high water levels in the impoundment area during the heavy mosquito-breeding months. The county's mosquito control program does not systematically block the culverts at the beginning of mosquito breeding seasons, then remove them at the end. Rather, the mosquito control program from time to time observes the culverts to see whether they are blocked and occasionally replaces sandbags that have been removed. It appears that whether sandbags are in place or not depends upon whether the culverts have been recently inspected, and whether persons unknown have removed them. Thus, whether water from the Indian River reaches Petitioner's land depends in part upon rather unpredictable human activities.
Submerged freshwater vegetational species are the dominant vegetation on the petitioner's property. Cattails, blue-green alga mats, leather fern, maiden cane, and primrose willow are the dominant species. These are species listed in the Department of Environmental Regulation's wetland indicators list set out at Rule 17-4.02(.17), Florida Administrative Code. Petitioner'S property remains sufficiently wet to support this vegetation as a result of storm water runoff from upland areas, groundwater levels, and occasionally, as at the time of the hearing, inflow from the Indian River. The area can no longer be called a saltwater marsh. It is primarily freshwater. At the time of the hearing, there was sufficient inflow from the Indian River to render the water brackish.
Petitioner is seeking a permit to modify the mosquito control ditches so as to ring his property with a perimeter canal. Materials dredged from the perimeter canal system would be placed on his property so as to raise its surface elevation to a level sufficient for it to remain dry. Petitioner envisions constructing his retirement home on this newly filled land.
The mosquito control ditches that presently partially encircle Petitioner's property and partially cross it are connected to the Indian River by the culvert system. When the culvert is not blocked, water from the impoundment area flows along the ditches through the culvert and into the Indian River. During high water episodes, water from the Indian River flows through the culverts, along the ditches, and onto Petitioner's property. Upland runoff is able to cross Petitioner's property before it enters the mosquito control ditches and finds its way to the Indian River.
The vegetation on Petitioner's property serves to filter and assimilate pollutants from the upland runoff before it enters the river. Water quality in the mosquito control ditches appears presently to only marginally meet Class III water quality standards. Removing the "kidney-like" function that is served by the wetland vegetation on Petitioner's property would serve to lower the water quality in the mosquito control ponds, and thus lower the quality of water that enters the Indian River from the impoundment area. The point where the culvert discharges into the Indian River is located less than 1,500 feet away from an aquatic preserve known as the Mosquito Lagoon Aquatic Preserve. Waters in the preserve are designated as Class II waters. Otherwise, the waters of the Indian River, including water in the mosquito control ditches during times that the ditches are connected to the Indian River, are Class III waters. It is difficult to measure the precise impact that eliminating the wetland vegetation on Petitioner's property would have upon adjoining waters. It is clear, however, that the impact would be negative in water quality terms and that water quality in adjoining waters is already only marginally meeting standards.
Furthermore, if other wetland areas within the impoundment area were similarly eliminated, water quality violations would be very likely to occur.
It appears that petitioner's project could be undertaken in such a manner as to eliminate the danger of excess turbidity during and after construction. It also appears that the Petitioner's project would not interfere with the mosquito control functions.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties and the subject matter of this proceeding. Sections 120.57(1) and 120.60, Florida Statutes.
The area where Petitioner proposes to dredge and fill is within the regulatory jurisdiction of the Department of Environmental Regulation. The Department's Rule 17-4.28(2), Florida Administrative Code, provides that dredging and filling activities which are to be conducted in or via excavated water bodies connected directly to rivers, bays, bayous, and sounds or their natural tributaries require a permit from the Department prior to being undertaken. The mosquito control canals and wetland areas where Petitioner proposes to dredge and fill are connected to the Indian River by a culvert that lies in close proximity to the project. While it is true that the culvert is from time to time blocked, it appears that the blocking occurs on only a periodic basis, and at the time -of the hearing, the Indian River and the impoundment area were clearly connected
The Department's Rules 17-4.28(3) and 17- 4.28(8)(b), Florida Administrative Code, provide that an applicant for a dredge and fill permit must affirmatively provide reasonable assurance that the effects of the proposed project will not result in violations of the Department's water quality criteria. Petitioner has failed to provide such assurance.
