STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CHARLOTTE M. KEPPELER, et al.,)

)

Petitioner, )

)

vs. ) CASE NO. 85-3872

) MONTGOMERY HOMES, INC., and ) DEPARTMENT OF ENVIRONMENTAL ) REGULATION, )

)

Respondents. )

)

)

RECOMMENDED ORDER

Pursuant to notice this cause came on for formal hearing before P. Michael Ruff, duly designated Hearing Officer on February 28, 1986, in Jacksonville, Florida.

APPEARANCES

For Petitioner: Charlotte M. Keppeler, pro se

3563 Sheldon Road

Orange Park, Florida 32073

Lawrence E. Bradley, pro se 3563 Sheldon Road

Orange Park, Florida 32073

Phillip Helseth,Jr., pro se 3569 Sheldon Road

Orange Park, Florida 32073

Jeffrey E. Miller, pro se 3558 Lawrence Road

Orange Park, Florida 32073

Gerard M. Pellegrini, pro se 3542 Sheldon Road

Orange Park, Florida 32073

For Respondent E. Owen McCuller, Jr., Esquire Montgomery Homes, ROGERS, TOWERS, BAILEY, JONES

Inc.: and GAY

1300 Gulf Life Drive Suite 800

Jacksonville, Florida 32207

Philip S. Parsons, Esq. Post Office Box 391 Tallahassee, Florida 32302

For Respondent Douglas M. Wyckoff, Esq. DER: Deborah Getzoff, Esq.

Office of General Counsel Department of Environmental

Regulation

2600 Blair Stone Road Tallahassee, Florida 32301.

This proceeding involves an application for a dredge and fill permit by the Respondent, Montgomery Homes, Inc., in connection with its newly developing "Ashebourne" subdivision located in Clay County, Florida. The project sought to be permitted involves the installation of a subaqueous wastewater collection main or pipe beneath the creek bed of Indigo Branch Creek, a tributary to Doctors Lake, all waters of the State in Clay County, Florida. The project additionally involves the proposed placement of approximately 270 cubic yards of fill onto residential Lots 17 and 18 within the Ashebourne subdivision.

The fill would be placed in forested wetland within the Department's jurisdiction. Finally, the project involves the proposed construction of a concrete end wall on a storm water outfall pipe.

The permit application was filed on July 16, 1985, but was modified and finally rendered complete on October 9, 1985 because the dredge and fill permit application was completed after October 1, 1985, the criteria for determination of entitlement to dredge and fill permits embodied in Rule 17-12.070, Florida Administrative Code apply, as opposed to the formerly applicable dredge and fill rules embodied in Rule 17-4.28 and 4.29, Florida Administrative Code.

The Co-Respondent, DER, by letter dated October 23, 1985, notified the Applicant, MHI, of its intent to issue the sought dredge and fill permit. The Petitioners herein timely filed a petition asking for an informal hearing challenging the issuance of the permit on November 5, 1985. The DER, however, determining that there were disputed issues of material fact, and that indeed the Petitioners really desired a formal proceeding, requested assignment of a Hearing Officer from the Division of administrative Hearings on November 7, 1985. The cause was ultimately set for hearing on the above-mentioned date.

At the commencement of the hearing, the Respondents jointly made a motion in limine, for only those issues to be heard which pertained to issuance of the dredge and fill permit, and only insofar as the permit issuance could affect waters within the DER's jurisdictional limit, which relates to Petitioners' disputes as to certain alleged effects of the proposed project on upland areas. That motion was granted. Also, at the outset of the hearing, the Hearing Officer ruled that the Petitioner could not be represented by Charlotte M. Keppeler, who could not demonstrate, after detailed examination by the Hearing Officer, that she was an "otherwise qualified representative" pursuant to Rule 28-5.1055, Florida Administrative Code. Accordingly, Petitioners were each allowed to appear pro se. Those Petitioners who were present largely adopted the testimony elicited by Charlotte M. Keppeler in her own case-in-chief. At the hearing the Petitioners collectively presented three witnesses and seven exhibits which were admitted into evidence.

The Respondents presented two witnesses and 12 exhibits, all of

which were admitted.

The issue to be resolved in this proceeding concerns whether reasonable assurances have been established that the criteria by which entitlement to dredge and fill permits is determined, embodied in Section 403.918(1) and (2), Florida Statutes (1985) and Rule 17-12.070, Florida Administrative Code, have been complied with; whether the proposed dredge and fill activity will violate state water quality standards embodied in Chapter 17-3, Florida Administrative Code and whether the activities are contrary to the public interest.

At the conclusion of the proceedings, the parties availed themselves of the right to file proposed findings of fact and conclusions of law. Those proposed findings of fact are dealt with in the Findings of Fact made by the Hearing Officer in this Recommended Order, and additionally are addressed in the Appendix attached hereto and incorporated by reference herein.

FINDINGS OF FACT

1. On July 16, 1985, the Respondent MHI filed an application for a dredge and fill permit with the Respondent, Department of Environmental Regulation (DER). That original application was modified on October 9, 1985. The dredge and fill project as now proposed, would be constructed within the newly developing "Ashebourne" subdivision located in Clay County, Florida. The Respondent, MHI, is the developer of that subdivision. The property owner adjacent to the proposed dredge and fill activity is the R. L. Johnson Construction Company. R.

   L. Johnson Construction Company does not object to the issuance

   of the dredge and fill permit and has affirmatively consented to it. It is not a party to these proceedings.

   
   

2. The project as now proposed and described in the amended application envisions the placement of a ductile iron sewer main or collection system pipe within waters of the State of Florida, specifically, beneath the creek bed of Indigo Branch Creek, which is a tributary to Doctors Lake in Clay County, Florida. The sewer main involved will be placed three feet beneath the bottom grade of the Indigo Branch Creek creek bed. The proposed project also involves the placement of approximately 270 cubic yards of fill soil onto residential Lots 17 and 18 within the Ashebourne subdivision. That fill would be placed within a forested wetland which is within the limits of the DER's jurisdiction. Additionally, the project involves the construction of a storm water outfall pipe concrete endwall. That endwall, however, is not truly in dispute in this case by the Petitioners and indeed, is located landward of the DER's jurisdiction in any event.

   
   

3. The Applicant proposed grading the 270 cubic yards of fill to be placed on Lots 17 and 18 to a "four-to-one" slope and sodding that fill so as to prevent erosion of the fill dirt into the surrounding wetlands. No historical or archaeological sites have been identified in the area of the placement of the fill dirt, nor in the area of the proposed excavation and placement of the pipe beneath Indigo Branch Creek. The proposed sewer main will be made of ductile iron which will last for many years, and will contain no positive pressure head in relation to the pressure of the waters of Indigo Branch Creek lying immediately above it. Thus, any leak occurring in that sewer main will result in ground or surface water entering the main, as opposed to wastewater from within the main leaking out into surface or groundwaters of the State.

   
   

4. In initiating this project and prosecuting the application, MHI retained the services of England, Thims & Miller, Inc., a consulting engineering firm who performed the site planning and civil engineering work for the proposed project. Mr. Miller, of that firm, was qualified and accepted as an expert in the design of wastewater collection systems and surface water hydrology. He established that the flow of the Indigo Branch Creek will not be impeded by the construction of the subaqueous sewer main crossing beneath the creek due to the temporary nature of the construction and the use of various mitigation techniques which are designed to enable the flow of the creek to continue unimpeded during the construction. Erosion of the Indigo Branch Creek channel will not likely occur as a result of the pipe crossing due to the temporary nature of the construction and the lack of change to the existing stream flow, as well as the planned compacting and sodding of the earthen berm

   adjacent to the Indigo Branch Creek following placement of the pipe beneath the creek and through the berm. Additionally, the height of the berm will be increased by the Respondent/Applicant as part of its proposed construction.

   
   

5. In view of the planned compacting and sodding of the earthen berm adjacent to the creek, there has been shown to be no reasonable likelihood of erosion of the earthen berm into waters of the State. Parenthetically it should be noted that the earthen berm itself is upland and without the jurisdiction of the DER. Assuming arguendo, however, that the Petitioners' primary concern involving the berm's erosion into the creek or the recreational stormwater pond on its opposite side, as a source of pollution, is jurisdictionally valid, the stabilization of the berm attendant to the proposed project will alleviate any siltation and erosion which might result to the Class III waters involved.

   
   

6. Mr. Jeremy Tyler is a dredge and fill supervisor for the DER. He and an employee under his supervision made several visits to the project site in order to prepare the biological and water quality assessment for the Department, and to assist in the formulation of a recommendation to the District Manager of the Department regarding this permit application. It was thus established that Indigo Branch Creek and Doctors Lake, to which it is a tributary, are Class III waters of the State, as is the recreation and stormwater pond upon which some of the Petitioners reside, which has an outlet to Doctors Lake. The Indigo Branch Creek lies between the Ashebourne Subdivision and the Pecan Cove Subdivision which is located north and east of it. The creek is channelized and the vegetation adjacent to it has been altered in the past. The native vegetation has previously been removed from the side of the creek where lies the Pecan Cove Subdivision. On the Ashebourne Subdivision side of the creek there is a linear strip of jurisdictional vegetation running the length of the creek. The Creek and Doctors Lake, as waters of the State, extend landward of the mean high water line into an area dominated by red maple, ironwood, water oak and sweet gum.

7. There will be a cleared area of approximately 20 feet in width where the pipe crossing of Indigo Creek would be made. There will be some clearing of vegetation on Lots 17 and 18 where the fill is to be placed. Prior to the hearing, MHI agreed to mitigate the loss in wetland vegetation by modifying the originally applied-for amount of fill to be placed on those two lots, and by agreeing to allow the area of the creek crossing to re-vegetate with native vegetation in an undisturbed fashion.

   Mr. Tyler, who was accepted as an expert witness in the area of

   evaluation of water quality impacts of dredge and fill activities, established that water quality standards for Class III waters of the State embodied in Rule 17-3, Florida Administrative Code, as it relates-to Indigo Branch Creek and Doctors Lake would not be violated by the proposed dredge and fill activity involved in placing the pipe beneath the creek. In this connection, the Applicant has agreed to condition the permit upon the use of various safeguards against siltation and turbidity, such as turbidity curtains and screens during the construction process and until the restabilization of the upland around the project site has occurred through compaction and sodding. Because of this, any deleterious effects on water quality would involve turbidity and would be transitory in nature because of the turbidity safeguards that will be installed, and because of the stabilization of the banks and berm surrounding the area of the creek where the dredge and fill activity will occur.

8. With regard to the filled area mentioned above, deleterious effects on the wetlands involved will be minimized by the grading of the fill to a 4:1 slope and the sodding of it to prevent erosion and siltation in the waters of the State involved in those wetlands. The concrete endwall installation involved as the third element of the dredge and fill activity proposed will serve to prevent erosion and resultant turbidity entering Doctors Lake by retaining the soil on each side and above the storm drainage outfall pipe. Thus the endwall will actually serve to prevent violations of water quality standards, even assuming arguendo that the installation of that concrete endwall on the outfall pipe is within the landward extent of the state waters involved with Doctors Lake, and within DER's jurisdiction, which was not proven.

   
   

9. Mr. Tyler established that the public's health, safety and welfare and property of others will not be adversely affected by the dredge and fill activities proposed because of their temporary nature and effect, and their location downstream on the Creek in relation to the residential lots which abut the creek, and for the further reason that the only adjacent property owner,

   R. L. Johnston Construction Company, consented to the placement of the wastewater collection system and pipe on or beneath its property.

   
   

10. The proposed dredge and fill activities will not adversely affect navigation and the flow of water or cause harmful erosion. Navigation will clearly not be impacted since the proposed pipe crossing will be three feet below the grade elevation of the bottom of the Creek. The flow of the Creek will not be impeded by the construction of the pipe crossing due to the temporary nature of the construction activity and the use of mitigation techniques (diversion of the creek flow) to enable the flow to continue around the project site during construction. Erosion of the creek channel is not expected to occur as a result of the pipe crossing due to the temporary nature of the construction and the lack of permanent change to the existing stream flow. Likewise, the compacting and sodding of the earthen berm adjacent to the creek following placement of the pipe beneath it, together with the proposed increase in the height of the berm will further serve to prevent erosion of the berm and the siltation effects that might have on the creek's channel.

    
    

11. The proposed dredge and fill activities were shown not to adversely affect conservation of fish and wildlife or their habitat, nor will fishing or recreational values or marine productivity be adversely affected. Given the mitigation techniques to be used to minimize turbidity, any adverse impacts associated with the dredge and fill activities will be of a temporary, transitory nature and will not pose any significant

    deleterious effect to waters of the State. Likewise, the proposed dredge and fill activities will only minimally affect the current condition and relative value of functions being performed by the jurisdictional waters and wetlands of Indigo Branch Creek, Doctors Lake and the pond. In short, it has not been established that the transitory, temporary impacts of the proposed dredge and fill activities will be of a type or magnitude so as to be contrary to the public interest. No causal relationship has been established between the proposed dredge and fill activity involved in placing the pipe beneath the creek and the feared erosion of the earthen berm located adjacent to waters of the State. In that connection, the Respondents stipulated to the Petitioners' standing on the limited issue of erosion of the berm into the pond.

    
    

    CONCLUSIONS OF LAW

    
    

12. The Division of Administrative Hearings has jurisdiction of the subject matter of and the parties to this proceeding. Section 120.57(1), Florida Statutes, (1985). Section 403.087, Florida Statutes, (1985) provides that:

    
    

    1. No stationary installation which will reasonably be expected to be a source of air or water pollution shall be operated, maintained, constructed, expanded, or modified without an appropriate and currently valid permit issued by the department, unless exempted by department rule. . . .

       
       

13. Section 403.91 through 403.929, known as the "Warren S. Henderson Wetlands Protection Act of 1984" expanded the Department's dredge and fill jurisdiction and permitting criteria for permit applications completed after October 1, 1985, such as this one. It is thus provided at Section 403.918, concerning criteria for granting or denying permits, that:

    
    

    1. A permit may not be issued under ss.

       403.91 through 403.929 unless the applicant provides the department with reasonable assurance that water quality standards will not be violated. The department, by rule, shall establish water quality criteria for wetlands within its jurisdiction, which criteria give appropriate recognition to the water quality of such wetlands in their natural state.

       
       

    2. A permit may not be issued under ss. 403.91-403.929 unless the applicant provides

       the department with reasonable assurance that the project is not contrary to the public interest. However, for a project which significantly degrades or is within an Outstanding Florida Water, as provided by department rule, the applicant must provide reasonable assurance that the project will be clearly in the public interest.

       
       

       1. 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:

          
          

          1. Whether the project will adversely affect the public health, safety, or welfare or the property of others;

             
             

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

             
             

          3. Whether the project will adversely affect navigation or the flow of water or cause harmful erosion or shoaling;

             
             

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

             
             

          5. Whether the project will be of a temporary or permanent nature;

             
             

          6. Whether the project will adversely affect or will enhance significant historical and archaeological resources under the provisions of s. 267.061; and

             
             

          7. The current condition and relative value of functions being performed by areas affected by the proposed activity.

          
          

       2. If the applicant is unable to otherwise meet the criteria set forth in this subsection, the department, in deciding to grant or deny a permit, shall consider measures proposed by or acceptable to the applicant to mitigate adverse effects which

          may be caused by the project. . . .

          
          

14. It having been demonstrated that the waters of Indigo Branch Creek, Doctors Lake and the recreational stormwater pond which opens into Doctors Lake, and which is separated from the creek by the subject berm, are Class III waters of the State, the above statutory criteria apply. Reasonable assurances must be given that state water quality standards embodied in Chapter 17- 3, Florida Administrative Code will not be violated, and that the project will not be contrary to the public interest, in order for the project to comport with the above statute and Rule 17-12.070, Florida Administrative Code, adopted pursuant to Sections 403.918(1) and (2), Florida Statutes, and which essentially tracks that statute in delineating-dredge and fill permitting proof elements.

    
    

15. It has been demonstrated by the Applicant/Respondent through the uncontradicted testimony of Mr. Miller and Mr. Tyler, as well as Applicant/Respondent's exhibits in evidence, that the State Water Quality Standards applicable to these Class III waters embodied in Chapter 17-3, Florida Administrative Code will not be violated. The project is not contrary to the public interest as it has been demonstrated that the project will not adversely affect public health, safety or welfare or the property of others, will not adversely affect fish or wildlife conservation, including endangered or threatened species and habitats and will not adversely affect navigation or the flow of water. It will not cause harmful erosion or shoaling, if the conditions the Applicant has voluntarily agreed to adhere to involving the use of turbidity barriers during the construction, as well as the 4:1 slope grading and sodding of the fill site are carried out. Additionally it has been demonstrated that the project will not adversely affect fishing or recreational values or marine productivity in the vicinity of the project, will not degrade historical and archaeological resources and will not engender any other of the kinds of adverse effects envisioned by Section 403.918(2)(a)1-7. This is particularly true since the current condition and functioning of the subject creek is that of a channelized drainage way which is not in its natural condition.

16. In short, it has been established that the above- referenced statutory and regulatory criteria for issuance of a dredge and fill permit by the Department have been met. If the dredge and fill activities involved here are performed in accordance with reasonable engineering practices and the plans submitted in the application, together with adherence to the conditions mentioned above, it must b. concluded that reasonable assurances have been provided that state water quality standards embodied in Chapter 17-3, Florida Administrative Code will not be violated. Reasonable assurances have been established that

Section 403.918(2), Florida Statutes, (1985) and concomitantly, Chapter 17-12.070, Florida Administrative Code will not be violated in that the proposed dredge and fill activities are not contrary to the public interest as that concept has been illuminated by the above statute.

RECOMMENDATION

Having considered the foregoing Findings of Fact and Conclusions of Law, it is, therefore

RECOMMENDED that a Final Order be entered granting the subject dredge and fill permit upon the above-referenced conditions, and that the petition filed herein be dismissed.

DONE and ENTERED this 18th day of April, 1986, in Tallahassee, Florida.

MICHAEL RUFF, 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 18th day of April, 1986.

COPIES FURNISHED:

Charlotte M. Keppeler 3563 Sheldon Road Orange Park, FL 32073

Douglas M. Wyckoff, Esq. Deborah Getzoff, Esq.

Office of General Counsel Department of Environmental Regulation

2600 Blair Stone Road Tallahassee, FL 32301

Lawrence E. Bradley 3563 Sheldon Road Orange Park, FL 32073

Phillip Helseth, Jr. 3569 Sheldon Road Orange Park, FL 32073

Victoria Tschinkel, Secretary Department of Environmental

Regulation

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

Jeffrey E. Miller 3558 Lawrence Road

Orange Park, FL 32073e Philip S. Parsons

Post Office Box 391 Tallahassee, FL 32302

Gerard M. Pellegrini 3542 Sheldon Road Orange Park, FL 32073

E. Owen McCuller, Jr., Esq. ROGERS, TOWERS, BAILEY, JONES

and GAY

1300 Gulf Life Drive, Ste. 800

Jacksonville, FL 32207

APPENDIX

Petitioners' Proposed Findings of Fact and Conclusions of Law:

1. Paragraph 1 is rejected as constituting recitation of testimony, evidence and argument.

   
   

2. Paragraph 2 is rejected as constituting recitation of testimony and evidence and argument concerning the weight and credibility to be ascribed thereto.

Respondent Montgomery Homes, Inc.'s Proposed Findings of Fact:

1. Paragraph 1 is accepted.

   
   

2. Paragraph 2 is accepted.

   
   

3. Paragraph 3 is accepted.

   
   

4. Paragraph 4 is accepted.

   
   

5. Paragraph 5 is accepted.

   
   

6. Paragraph 6 is accepted.

   
   

7. Paragraph 7 is accepted.

   
   

8. Paragraph 8 is accepted.

Respondent Department of Environmental Regulation's Proposed Findings of Fact:

1. Paragraph 1 is accepted.

   
   

2. Paragraph 2 is accepted.

   
   

3. Paragraph 3 is accepted.

   
   

4. Paragraph 4 is accepted.

5. Paragraph 5 is accepted.

6. Paragraph 6 is rejected as constituting discussion of testimony and not a proposed finding of fact.

   
   

7. Paragraph 7 is accepted.

   
   

8. Paragraph 8 is rejected as constituting discussion of testimony and not a proposed finding of fact.

   
   

9. Paragraph 9 is accepted.

   
   

10. Paragraph 10 is rejected as constituting discussion of testimony and not a proposed finding of fact.

    
    

11. Paragraph 11 is accepted.

    
    

12. Paragraph 12 is rejected as constituting discussion of testimony and not a proposed finding of fact.

    
    

13. Paragraph 13 is accepted.

Docket for Case No: 85-003872

Orders for Case No: 85-003872