STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

HAROLD CLICK and HAROLD PETERSON, )

)

Petitioner, )

)

vs. ) CASE NO. 84-4489

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

)

Respondent. )

)

RECOMMENDED ORDER

A final hearing was held in this case on August 14, 1985, in St. Augustine, Florida before Donald D. Conn, a duly designated Hearing Officer of the Division of Administrative Hearings. The parties were represented as follows:

For Petitioner: Peter B. Heebner, Esquire

523 North Halifax Avenue Daytona Beach, Florida 32018

For Respondent: Ross S. Burnaman, Esquire

Department of Environmental Regulation 2600 Blair Stone Road

Tallahassee, Florida 32301

Petitioners seek a dredge and fill permit associated with their property on Dunn's Creek which is a major tributary to the St. Johns's River in Putnam County. The Respondent issued an Intent to Deny on December 5, 1984, and Petitioners requested this formal hearing. At the hearing, Petitioners called Guynn Marchman, P.E., who was qualified as an expert in engineering and the hydrographic characteristics of the area in question. Petitioner Harold Click also testified on his own behalf. Respondent called Tim Deuerling who was qualified as an expert in biology and the effects of dredge and fill projects on the water quality of the state, and also Called Jeremy Tyler who was qualified as an expert on the impact of dredge and fill projects on water quality, and on dredge and fill jurisdictional determinations. Petitioners introduced six exhibits and Respondent introduced nine exhibits. No transcript of the hearing has been filed. Respondent served Requests for Admissions on January 24, 1985, to which there has been no response, and therefore they are deemed admitted pursuant to Rule 1.370, Florida Rules of Civil Procedure.

The parties have submitted posthearing proposed findings of fact pursuant to Section 120.57(1)(b)4, Florida Statutes. A ruling on each proposed finding of fact has been made either directly or indirectly in this Recommended Order, except where such proposed findings of fact have been rejected as subordinate, cumulative, immaterial, or unnecessary.

FINDINGS OF FACT

1. Harold Click and Harold Peterson, Petitioners, are sole owners of property which borders Dunn's Creek, one of the largest tributaries to the St. John's River in Putnam County, and which is described as Lots 80, 88, and 89, Section 38, Township 11 South, Range 27 East. Dunn's Creek is a Class III water body of the state.

   
   

2. Petitioners applied for a dredge and fill permit initially in 1980 but Respondent issued an Intent to Deny in January, 1981. A second permit application was submitted in 1982 on behalf of Petitioners following a site visit by representatives of Respondent in June, 1981, but again an Intent to Deny was issued in September, 1982. A third application was submitted on or about May 3, 1984, following another site visit by Respondent's representatives, but the Intent to Deny which resulted in this hearing was issued on December 5, 1984. During these site visits, Respondent's representatives offered suggestions about what might be an acceptable project but gave no assurances that the application, as submitted on May 3, 1984, would be permitted.

   
   

3. The project which Petitioners now propose would include the placement of pilings and other fill materials within the waters and landward extent of the waters of the state which would result in the alteration of at least 10,000 square feet of the swamp floodplain community of Dunn's Creek. This proposed filling will degrade the water quality of the areas affected by replacing periodically inundated wetlands with uplands. Although the project also includes construction of a fill road with a bridge over a natural slough on Click's lot, Respondent's expert witness Tyler testified that this portion of the project alone would not have resulted in the Intent to Deny. According to Tyler, the key area of objection was the .23 acres Petitioners proposed to fill which was within Respondent's jurisdiction and which would have widened an already existing berm. This widening would have allowed the placement of two septic tanks and two, dwellings on pilings on the property and an access driveway through Click's portion of the property to Peterson's.

   
   

4. As proposed, fill was to be placed over a total of .35 acres, with .23 acres being in the waters of the state or to the landward extent of waters of the state. Bald cypress trees or other species listed in Rule 17-4.02(17), Florida Administrative Code, are present in part of the wetland area occupied by the project site in greater numbers, biomass, and aerial extent than competing plant species or communities.

   
   

5. Without appropriate pollution control measures, the proposed project could reasonably be expected to result in an adverse change in the biological integrity, bacteriological quality, biochemical oxygen demand and the concentration of dissolved oxygen, turbidity and nutrients in some of the waters on the project site, in Dunn's Creek, and in discharge areas elsewhere.

   
   

6. The filling associated with the project can be expected to have a long- term detrimental impact on water quality and biological resources, according to Respondent's expert witness Deuerling. Natural habitats and rainwater storage areas would be destroyed or detrimentally altered, as would the natural filtration function performed by the swamp areas to be filled.

   
   

7. In the immediate vicinity of Petitioners' lots, Respondent has denied two dredge and fill permits and there are an additional two permit applications which are pending. Deuerling has also performed site visits at three other

   locations along Dunn's Creek in the immediate vicinity of Petitioners' lots, and it can be expected that other permit applications for similar projects will be submitted if Petitioners are granted a permit.

   
   

   CONCLUSIONS OF LAW

   
   

8. The Division of Administrative Hearings has jurisdiction over the parties and subject matter in this case. Section 120.57(1), Florida Statutes. The Respondent has permitting authority over dredging and filling activities ire state waters pursuant to Chapters 253 and 403, Florida Statutes (1983), and Chapter 17-4, Florida Administrative Code. Petitioners' application was complete prior to October 1, 1984, and therefore the provisions of Chapter 84- 79, Laws of Florida, and the rules adopted thereunder do not apply in this case. Section 403.913(9), Florida Statutes (1984).

   
   

9. The Respondent's permitting authority for dredging and filling is conditioned upon a finding that such activity will not interfere with the natural resources and conservation of the area in a manner contrary to the public interest, and will not result in damage to natural marine habitats, grasses and soils suitable for producing plants that are useful as nursery or feeding grounds for marine life. Section 253.123(3)(d), Florida Statutes (1983). The Respondent has adopted Rule 17.28(3), Florida Administrative Coded which states:

   
   

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

   
   

10. The applicant for a permit generally has the burden of establishing entitlement to the permit sought. Florida Department of Transportation v.

    J.W.C. Co., Inc., 396 So.2d 778 (Fla. 1st DCA 1981). In the instant case petitioners have the burden of showing that their proposed project will not violate the above cited statutory and rule provisions, and they have failed to meet this burden of proof. To the contrary, evidence produced at the hearing establishes-that the project will degrade the water quality of the affected area and that without appropriate pollution control measures, the project could reasonably be expected to result in adverse changes to the biological integrity and quality of the area, oxygen demand and concentration of dissolved oxygen, and turbidity in waters on the project site. It can also be expected to have a long-term detrimental impact on water quality and biological resources. Natural habitats, rainwater storage areas, and the natural filtration function of the swamp area to be filled would also be destroyed or detrimentally altered. Thus, Petitioners have failed to affirmatively provide reasonable assurances that the short and long-term effects of their project will not result in a violation of water quality standards and that such activity will not interfere with the area's natural resources contrary to the public interest. Therefore Respondent has sufficient grounds to deny Petitioners' application.

    
    

11. The Department may also deny permit applications when an adverse cumulative impact is created by a project in connection with future construction

that may reasonably be expected to occur. Rossetter v. Department of Environmental Regulation, 5 FALR 1195A (DER May 19, 1983). This consideration of cumulative impact in the permitting process is permissible if there is a reasonable likelihood that similar project applications will be submitted in the same geographic locale. Caloosa Property Owners' Association v. Department of Environmental Regulations 462 So.2d 523 (Fla. 1st DCA 1985). The record reflects that similar permit applications in the immediate vicinity of Petitioners' lots are pending and others are being considered by landowners who have asked for site visits by staff of Respondent. If Petitioners are granted the permit they seek it is reasonably likely that these additional landowners will submit permit applications and the cumulative impact of such applications, if granted, would be adverse.

RECOMMENDATION

Based upon the foregoing it is recommended that Respondent enter a Final Order denying Petitioners' application for a permit.

DONE and ENTERED this 5th day of September, 1985, at Tallahassee, Florida.

DONALD D. CONN, 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 5th day of September, 1985.

COPIES FURNISHED:

Peter B. Heebner, Esquire

523 North Halifax Avenue Daytona Beach, Florida 32018

Ross S. Burnaman Esquire Department of Environmental

Regulation

2600 Blair Stone Road Tallahassee, Florida 32301

Victoria Tschinkel Secretary Department of Environmental

Regulation

2600 Blair Stone Road Tallahassee, Florida 32301

Docket for Case No: 84-004489

Orders for Case No: 84-004489