STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ROSS GWIN, )

)

Petitioner, )

)

vs. ) CASE NO. 85-0594

) DEPARTMENT OF ENVIRONMENTAL ) REGULATION, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice this cause came to be heard on April 24, 1985, before Donald D. Conn, a duly designated Hearing Officer of the Division of Administrative Hearings. At the hearing, Ross Gwin, Petitioner, requested that Ron Cray be accepted as a qualified representative on his behalf, and following inquiry under Rule 221-6.08, F.A.C., Petitioner's request was granted. The parties were represented as follows:

For Petitioner: Ron Cray

1731 Juniper Circle

St. Cloud, Florida 32769

Fpr Respondent: B. J. Owens, Esquire

Twin Towers Office Building 2600 Blairstone Road

Tallahassee, Florida 32301

Petitioner disputes the Department of Environmental Regulation's Respondent's, intent to deny his application for a permit to deepen an existing ditch which flows through Petitioner's property and into Lake Tohopekaliga. Petitioner introduced seven exhibits and called two witnesses, and Respondent introduced thirteen exhibits and called two witnesses. There was no transcript of the hearing.

FINDINGS OF FACT

1. By application dated August 28, 1984, Petitioner sought a permit from Respondent to deepen an existing ditch on his property from a current depth of one and a half feet to a proposed depth of three feet. The ditch is eight feet wide and eight hundred and fifty feet long and extends through a wetlands area to Lake Tohopekaliga which has been classified as a Class III waterbody. Petitioner intends to dredge approximately 377 cubic yards of material waterward of the ordinary high water elevation in order to make the existing storm drainage ditch navigable. This application was received by Respondent on September 11, 1984, and was accepted as complete on November 6, 1984.

   
   

2. On January 9, 1985, an on-site inspection was concluded by Barbara Bess supervisor of dredge and fill permitting in Respondent's Orlando district office, who thereafter prepared an appraisal report dated January 23, 1985. As expressed in her report, Bess' primary concern with this application was the potential loss of fish and wildlife habitat which would result from the loss of grasses and macro-invertebrates resulting from the proposed project. Lake Tohopekaliga is a very popular and productive sportfishing lake, and the cumulative effect of such dredging activity, if it occurred around the lake would have a severely negative impact on the lake's food chain. This would in turn have adverse consequences for sportfishing and the water quality of the lake. Since similar drainage ditches do exist around the entire lake, there is a reasonable likelihood of similar projects occurring if this one is approved.

   
   

3. Petitioner proposes that his dredging take place during a draw-down of Lake Tohopekaliga which has already been planned, and contends that the negative impact of the proposed deepening will be minimized since the ditch will be substantially dry during the draw-down. Petitioner's contention, however, is not supported by the evidence. Testimony from Barbara Bess, who was accepted as an expert on water quality standards and the biological impact of construction projects on water quality, and testimony from Ed Moyer, fisheries biologist with the Game and Fresh Water Fish Commission, established that Petitioner's ditch may not be completely dry during the draw-down, and that the proposed deepening will increase boat traffic due to the ditch's navigability, thereby reducing vegetation and

   harming the food chain in the immediate area of the ditch. The cumulative effect of similar projects occurring, even during the draw-down, will be negative for sportfishing and the water quality of the lake.

   
   

4. Respondent issued its Intent to Deny on January 25,1985, in response to which Petitioner timely sought a hearing.

   
   

5. The parties were allowed to submit proposed findings of fact and conclusions of law pursuant to Section 120.57(1)(b)4, F.S. A ruling on each proposed finding 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.

   
   

   CONCLUSIONS OF LAW

   
   

6. The Division of Administrative has jurisdiction over the parties and subject matter of this proceeding. Section 120.57(1), F.S. The Respondent has permitting authority over dredging and filling activities in state waters pursuant to Chapters 253 and 403, F.S., and Chapter 17-12, F.A.C.

   
   

7. Rule 17-12.070, F.A.C., provides in part as follows:

   
   

   1. In accordance with Section 403.918(1), F.S., no permit shall be issued unless the applicant has provided the department with reasonable assurance based on plans, test results or other information that the proposed dredging or filling will not violate water quality standards.

   2. No permit shall be issued unless the applicant provides the department with reasonable assurance based on plans, test results or other information that the project is not contrary to the public interest in accordance with Section 403.918(2), F.S.

      * * *

      
      

8. The applicant for a permit has the burden of providing reasonable assurance that proposed dredging or filling will not violate water quality standards and that

   it is not contrary to the public interest. Section 403.918(2)(a), F.S., sets forth certain factors which the Department of Environmental Regulation must consider and balance, as follows:

   
   

   (a) In determining whether a project is not contrary to the public interest, or is clearly in the public interest, the department shall consider and balance the following criteria:

   * * *

   2. Whether the project will adversely affect the conservation of fish and wildlife, including endangered or threatened species, or their habitats;

   * * *

   4. Whether the project will adversely affect the fishing or recreational values or marine productivity in the vicinity of the project;

   
   

9. Petitioner has not met his burden of proof in this case. To the contrary, the evidence clearly establishes that fish habitats and marine productivity in the immediate vicinity of Petitioner's property, as well as fishing or recreational values generally will be adversely affected by this project. The water quality of the lake will also be adversely affected. This conclusion is drawn after considering the effect of the proposed draw-down on the project since the draw-down alone will not provide the required "reasonable assurance". Petitioner has failed to affirmatively provide evidence of compliance with the statutory and rule requirements for the permit he seeks.

RECOMMENDATION

Based on the foregoing, it is recommended that Respondent enter a Final Order denying Petitioner's permit application.

DONE and ENTERED this 23rd day of May, 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 23rd day of May, 1985.

COPIES FURNISHED:

Ross Gwin

1731 Juniper Circle

St. Cloud, Florida 32769

Ron Cray

1731 Juniper Circle

St. Cloud, Florida 32769

B. J. Owens, Esquire Department of Environmental

Regulation

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: 85-000594

Orders for Case No: 85-000594