STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

RAYMOND F. COLTRANE, )

)

Petitioner, )

)

vs. ) CASE DOAH: 84-3139

) FILE OGC: 84-0623 CITY OF JACKSONVILLE, FLORIDA )

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

)

Respondents. )

) HORMOZ KHOSRAVI, M.D., )

)

Petitioner, )

)

vs. ) CASE DOAH: 84-3191

) FILE OGC: 84-0634 CITY OF JACKSONVILLE, FLORIDA )

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

)

Respondents. )

)

RECOMMENDED ORDER

Notice was provided and a formal Section 120.57(1), Florida Statutes, hearing was held on November 5, 1984. The location of the hearing was Jacksonville, Florida. Charles C. Adams presided as the Hearing Officer. This Recommended Order is being entered following the receipt and review of proposed recommended orders of the attorneys for the Petitioner Coltrane and for the Department of Environmental Regulation. Having considered those proposed recommended orders, they have been utilized to some extent. Otherwise the proposed facts are rejected because they are not deemed to be credible, based upon a lack of relevancy or materiality, or for reason that they tend to be cumulative or subordinate to facts found in this recommended order.

APPEARANCES

For Petitioner, Theresa M. Rooney, Esquire Coltrane: 653 Florida National Bank Building

Jacksonville, Florida 32202

For Petitioner, Hormoz Khosravi, M.D. Khosravi: Medical Center Plaza II

580 West 8th Street, Suite 6005 Jacksonville, Florida 32209

For Respondent, Robert G. Alexander, Esquire City of Assistant Chief of Litigation Jacksonville: Office of General Counsel

1300 City Hall

Jacksonville, Florida 32202

For Respondent, Ross S. Burnaman, Esquire Department of Assistant General Counsel Environmental Twin Towers Office Building Regulation: 2600 Blairstone Road

Tallahassee, Florida 32301 ISSUES

The issues presented in this cause concern the question of the entitlement of City of Jacksonville to be granted a dredge and fill permit to replace an existing stormwater outfall structure with a larger structure and to conduct other work associated with that installation. Review of this matter is in keeping with provisions of Chapters 253 and 403, Florida Statutes, and Chapter 17, Florida Administrative Code and the Water Quality Certification within Section 401 of Public Law 92- 500.

FINDINGS OF FACT

1. On October 19, 1983 the City of Jacksonville, Florida made application to the State of Florida, Department of Environmental Regulation for permission to replace an existing stormwater outfall structure discharging into the St. Johns River, in Duval County, Florida. The St. Johns River is a Class III waterbody within the meaning of Chapter 17, Florida Administrative Code. By this project the applicant would remove an existing 27 inch RCP outfall pipe and headwall and install a new 48 inch RCP outfall pipe with headwall. The project also envisions the construction of a 16 by 20 foot erosion protection mat. The system envisioned is a stepdown system as it approaches the St. Johns River. Approximately 117 cubic yards of material would be dredged, 38 cubic yards of which would be taken from an area below the mean highwater line. In association with the project 10 cubic yards of fill would be deposited landward of the mean highwater line. The purpose of this project is to provide more effective drainage of an existing residential development constituted of approximately

   150-200 homes. This request was made in furtherance of a court mandate to improve the stormwater drainage within this residential area of the community.

   
   

2. In the vicinity of the proposed project, the home sites have lawn grass and ornamental shrubbery and the upland vegetation is otherwise' dominated with hickory, pines and oaks with scattered hickory and magnolia. At the project site the river bank is approximately 15 feet high and terraced. Elephant ear dominates the shoreline vegetation along with some bald cypress and red maple. Eelgrass is common to the area but was not found at the exact location of the project site. The sediments in the area are predominantly sand with some silt and detritus.

   
   

3. The site selected for this project was chosen after looking at a number of alternatives and presents the better choice of alternatives reviewed. With the advent of the change approximately five (5) times the amount of volume of water will be discharged as contrasted with the present discharge point. No significant increase in velocity is expected in the discharge system.

   Consequently increased erosion is not expected to occur, in that velocity not volume promotes erosion. Steps will be taken to insure against erosion of property adjacent to the outfall site to include protection of the bulkhead related to Petitioner Coltrane's property which is adjacent to the project site.

   
   

4. Inspection of this site by permit assessment officials within the Department of Environmental Regulation established that minimal environmental harm or impact is expected if the project is permitted. The project would eliminate a small amount of river bottom and the associated biota and its available pollution filtering capacity and wildlife habitat. That loss is not significant on the subject of biological resources or water quality of the St. Johns River. The effects of turbidity will be adequately addressed from the point of view of the experts of the Department, whose opinions are accepted. The erosion is addressed by mats which constitute control structures. The area of land which is constituted of the property of the State of Florida at the site

   is approximately 20 by 15 feet. Although a certain amount of sedimentation will occur, that sedimentation is not significant and will tend to settle on the protection mats. No particular examination was made of the water quality of the stormwater being discharged through the pipe. 1/ The question of water quality was limited to an examination of the receiving waters in the St. Johns River.

   The volume and velocity of the stormwater being discharged was considered by the department and was not found to be a significant problem. As stated before this opinion on volume and velocity is accepted. 2/

   
   

5. This project will not interfere with conservation of fish, marine and wildlife or the natural, resources in a way that is contrary to the public interest, and will not result in the destruction of oyster beds, clam beds, or marine productivity, to include but not be limited to, destruction of natural marine habitats, grass flats suitable as nursery or feeding grounds for marine life, nor interfere with the established marine soil suitable for producing plant growth of a type useful as nursery or feeding ground for marine life. The project will not interfere with natural shoreline processes to such as to be contrary to the public interest. The project is not expected to create a navigational hazard or serious impediments in navigation or to substantially alter or impede the natural flow of navigable waters, such to be contrary to the public interest. Turbidity controls are contemplated to prohibit a turbidity problem exceeding 29 NTU's above background.

   
   

6. The Petitioners Coltrane and Khosravi challenged the grant of the dredge and fill permit. Coltrane is concerned about problems of erosion, that the project will be unsightly in its appearance and that it will tend to disturb the river bottom while the construction is occurring. Khosravi speaks in terms of damage to the natural condition and ecological factors of the surrounding area on the banks of the St. Johns River. Both of these petitioners live adjacent to the project site on home sites by the St. Johns River. As described above, the concerns of the petitioners have been adequately addressed in the project design.

   
   

7. Coltrane's testimony and depiction of the circumstance in another outfall of the City of Jacksonville in the vicinity of the project site, where adverse impact is shown, was not demonstrated to be sufficiently similar to the present project to cause alarm. See Coltrane's composite Exhibit No. 1 as admitted into evidence, photographs of that site.

   
   

8. The City of Jacksonville has been granted an easement by the State of Florida, Department of Natural Resources for the use of the state owned submerged land.

   CONCLUSIONS OF LAW

   
   

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

   
   

10. The Petitioners in this cause have standing to challenge the grant of a dredge and fill permit to the City of Jacksonville. See Section 120.571(I), Florida Statutes.

    
    

11. Given the nature of the project contemplated by the City of Jacksonville, it constitutes the construction and operation of a stationary installation reasonably expected to promote water pollution, within the meaning of Section 403.087, Florida Statutes. Consequently, it is necessary for the City to obtain a dredge and fill permit before commencing the project. The permit jurisdiction of the Department of Environmental Regulation to require permitting is established by the fact that certain activities contemplated by the project will occur below the line of mean highwater and as depicted by the plant indices set forth in Section 17-4.03(17), Florida Administrative Code as to the dominance of indicator vegetation setting forth the landward extent at the department's permit authority. The permit question is considered in keeping with the provisions of Chapter of 253 and 403, Florida Statutes; Chapter 17, Florida Administrative Code and Section 401, of Public Law 92-500. In particular if the City is to be granted permission to conduct the dredging and filling necessary to carry out the project, which project will involve waters of the State of Florida, the City of Jacksonville must provide reasonable assurances that the project will not result in violations of the water quality criteria, standards, requirements and provisions of Chapter 17-3, Florida Administrative Code. The necessary reasonable assurances related to water quality matters have been provided per Rule 17-4.28, Florida Administrative Code.

    
    

12. The proposed project will not interfere with the conservation of fish, marine and wildlife or other natural resources, to such an extent as to be contrary to the public interest nor will it result in the destruction of oyster beds, clam beds, or marine productivity, including but not limited to, destruction of natural marine habitats, grass flats suitable as nursery or feeding grounds for marine life, nor affect the established marine soils suitable for producing plant growth of a type useful as nursery or feeding ground for marine life or natural shoreline processes to such an extent as to be contrary to the public interest, within the meaning Rule 17-4.29(6)(a), Florida Administrative Code.

    
    

13. This project will not create a navigational hazard, or serious impediment to navigation, or substantially alter or impede the natural flow of navigable waters, such as to be contrary to the public interest, as envisioned by Rule 17- 4.29(6)(b), Florida Administrative Code.

    
    

14. The applicant has satisfied permit requirements of Chapter 253, Florida Statutes.

    
    

15. The effects of stormwater discharge, at the point of discharge, have been considered in arriving at the legal conclusions set forth above, given the fact that the substance being discharged is stormwater. Consequently the effects of stormwater have been taken into account in reaching these legal conclusions, as contemplated by Rule 17-25.08, Florida Administrative Code.

16. Consideration is not given to the question of whether the City of Jacksonville is exempt from stormwater discharge permitting as contemplated by Rules 17-25.03(2), Florida Administrative Code. That issue may only be raised, if at all, when the City of Jacksonville attempts to avail itself of the right to exemption at least fourteen (14) days prior to the construction by claiming that the project meets criteria for exemption. The Department of Environmental Regulation's preliminary comment that this project would be entitled to such exemption does not relieve the City of Jacksonville of this notice requirement, a prerequisite to recognition of the claim of exemption.

    
    

17. Upon full consideration of the facts found and the conclusions of law reached, it is, Recommended:

    
    

18. That final order be issued which grants the City of Jacksonville a dredge and fill permit to carry forward the project addressed in this recommended order, provided the City of Jacksonville employs turbidity controls throughout the project to contain turbidity generated in excess of 29 NTU's above background.

DONE and ENTERED this 22nd day of January, 1985 in Tallahassee, Leon County, Florida.

CHARLES C. ADAMS

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 Hearing this 22nd day of January, 1985.

ENDNOTES

1/ In the course of examining the dredge and fill permit application, the Department of Environmental Regulation advised the City of Jacksonville that the City was entitled to an exemption from stormwater permitting as envisioned by Section 17- 25.03, Florida Administrative Code. The question of whether this notice should have been provided band the entitlement of the City of Jacksonville to be granted an exemption was not considered. That question would only become an issue on the occasion where the City of Jacksonville through a registered engineer or other qualified person certifies to the Department of Environmental Regulation on a form provided by the Department at least fourteen

(14) days prior to the construction that the discharge facility would meet necessary criteria for exemption from stormwater permitting. See Section 17- 25.03(2), Florida Administrative Code.

2/ Consideration of the stormwater impact at the point of discharge is in keeping with Section 17-25.08, Florida Administrative Code, as to the effects of the stormwater discharge.

COPIES FURNISHED:

Theresa M. Rooney, Esquire

653 Florida National Bank Building Jacksonville, Florida 32202

Hormoz Khosravi, M.D. Medical Center Plaza II

580 West 8th Street, Suite 6005 Jacksonville, Florida 32209

Robert G. Alexander, Esquire Assistant Chief of Litigation Office of General Counsel 1300 City Hall

Jacksonville, Florida 32202

Ross S. Burnaman, Esquire Assistant General Counsel Twin Towers Office Building 2600 Blairstone Road

Tallahassee, Florida 32301

Victoria Tschinkel, Secretary Department of Environmental Regulation Twin Towers Office Building

2600 Blairstone Road

Tallahassee, Florida 32301

Docket for Case No: 84-003139

Orders for Case No: 84-003139