STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JACK AND TERRI SALTIEL, )

)

Petitioner, )

vs. )

)

JAMES N. AND JANICE E. ) NASH and STATE OF FLORIDA )

DEPARTMENT OF ENVIRONMENTAL ) CASE NO. 91-7972 REGULATION, )

)

Respondents, )

and )

)

CARLOS ALVAREZ, )

)

Intervenor. )

)

RECOMMENDED ORDER

This matter came on for hearing in Tallahassee, Florida, before Robert T. Benton, II, Hearing Officer of the Division of Administrative Hearings, on May 1, 1992, and finished on May 8, 1992, the third day of hearing. The last hearing transcript was filed at the Division of Administrative Hearings on June 22, 1992.

The parties filed proposed recommended orders on July 2, 7 and 8, 1992.

The attached appendix addresses proposed findings of fact by number.

APPEARANCES

John A. Barley For Petitioner: P.O. Box 10166

Tallahassee, FL 32302

Donna H. Stinson

For Respondents Moyle, Flanigan, Katz,

Mr. & Mrs. Nash: Fitzgerald & Sheehan, P.A.

118 North Gadsden Street Suite 100

Tallahassee, FL 32301

Candi E. Culbreath For Respondent Patricia Comer

DER: 2600 Blair Stone Road Tallahassee, FL 32399-2400

Carlos Alvarez

Pro Se: c/o Hopping, Boyd, Green & Sams

123 South Calhoun Street Tallahassee, FL 32301

STATEMENT OF THE ISSUE

Whether the Department of Environmental Regulation should grant a dredge and fill permit to James N. and Janice E. Nash authorizing removal of eleven cubic yards of soil, installation of five 24-inch culverts in lieu of two 18- inch culverts, and placement of 19 cubic yards of limerock in and around the bed of an unnamed creek near the point it reaches the Alford Arm of Lake Lafayette in Leon County, Florida?

PRELIMINARY STATEMENT

After petitioner Terri Saltiel telephoned with word that respondents James

N. and Janice E. Nash or their agents were placing fill in the creek which intersects a driveway connecting their house to Deep Wood Trail, the Department of Environmental Regulation (DER) inspected; and sent Mr. Nash a form, "Joint Application for Works in the Waters of Florida," along with a letter advising him of the necessity for a permit, if work was to go forward.

Mr. and Mrs. Nash did make joint application for a DER permit and Army Corps certification, proposing inter alia to substitute five larger culverts for the two already installed. At one point in the course of ensuing discussions and "free form" proceedings, a bridge was proposed instead of culverts; but the Nashes eventually returned to their initial proposal, with respect to which, on October 14, 1991, DER issued an intent to issue.

DER's intent to issue recited that DER "has determined that a dredge and fill permit is required for the proposed work," and gave notice of its intention to issue the permit, on stated conditions, "unless petition for an administrative proceeding (hearing) is filed pursuant to the provisions of Section 120.57, F.S."

Within the time allowed, Jack and Terri Saltiel filed a petition for formal administrative hearing objecting to DER's proposed grant of the Nashes' permit application. DER forwarded the matter to the Division of Administrative Hearings for hearing, in accordance with Section 120.57(1)(b)3., Florida Statutes (1991). By order entered March 30, 1992, Carlos Alvarez's petition for intervention in support of the application was granted.

At final hearing, the Nashes called as witnesses Helge Swanson, an expert on environmental impact; James N. Nash; Joseph Charles Harp, an expert in marine biology, wetland ecology, water quality assessment and the environmental impact of dredge and fill work; George M. Cole, an expert in surveying and civil engineering; and Carlos Alvarez. The Nashes offered eight exhibits: Exhibit No.

1 is Helge Swanson's curriculum vitae; Exhibit No. 2 is the site plan attached to DER's October 14, 1991, intent to issue; Exhibit No. 3 is a 1967 survey of Lafayette Properties prepared by Broward Davis & Associates; Exhibit No. 4 is Joseph Charles Harp's curriculum vitae; Composite Exhibit No. 5 consists of all documents related to the Nashes' joint application on file at DER's Northwest District branch office; Exhibit No. 6 is DER's October 14, 1991, intent to issue; Exhibit No. 7 consists of the engineering drawings attached to the Saltiels' petition for formal administrative hearing describing the work the Nashes propose to perform if their joint application is granted; and Exhibit No.

8 is George M. Cole's curriculum vitae.

DER called no witnesses and offered no exhibits. Mr. Alvarez called no witnesses, but offered seven exhibits: Exhibit No. 1 is a property ownership

map; Exhibit No. 2 is a United States Geodetic survey map; Exhibits No. 3, 4, 5,

6 and 7 are photographs of the site.

The Saltiels called as witnesses Carlos Alvarez; Ted L. Biddy, an expert in hydrologic engineering, hydrographic engineering, structural engineering related to storm water management facilities, boundary surveying, topographic surveying, and water level surveying; and Terri Saltiel. The Saltiels offered 19 exhibits: Exhibit No. 1 is a boundary and topographic survey of the site prepared by Mr.

Biddy; Exhibit No. 2 is a drawing prepared by Mr. Biddy depicting the design rendered by George E. Flatt, P.E., showing the work proposed by the Nashes' joint application; Exhibit No. 3 is a drawing prepared by Mr. Biddy depicting the changes in Mr. Flatt's design that Mr. Biddy testified would be necessary if the Flatt design were revised to correct alleged engineering miscalculations; Exhibit No. 4 is a drawing prepared by Mr. Biddy profiling the elevations of the driveway and creek bed in their existing condition, elevations that would exist if the work were performed as proposed by Mr. Flatt's design, and elevations that would exist if Mr. Flatt's design were revised as Mr. Biddy testified would be necessary to correct the alleged engineering miscalculations; Exhibit No. 5 is a drawing prepared by Mr. Biddy depicting the work he testified would be required to implement Mr. Flatt's design if his design were revised as Mr. Biddy testified would be necessary to correct alleged engineering miscalculations; Exhibit No. 6 is a drawing prepared by Mr. Biddy depicting the work he testified would be required to implement Mr. Flatt's design if revised as Mr. Biddy testified would be necessary to cure claimed engineering miscalculations and to restrict the work to the area within the boundary lines of lot 1; Exhibit No. 7 is a drawing prepared by Mr. Biddy depicting the approximate elevations of flooding that would result from a 25 year storm if the conditions on the site remain unchanged, if the conditions on the site were changed as proposed by Mr. Flatt's design, and if the conditions on the site were changed as proposed by Mr. Flatt's design revised to the extent Mr. Biddy testified was necessary to correct supposed engineering miscalculations; Exhibit No. 8 consists of the drainage calculations and computer modeling developed by Mr. Biddy to support the varying flood elevations depicted in Exhibit No. 7; Exhibit No. 9 is a book published by the United States Geological Survey entitled "Analysis of Water Surface Profiles in Leon County and the City of Tallahassee, Florida", to which objection was sustained. Exhibits Nos. 10 through 19 are photographs of the site taken by Mrs. Saltiel.

FINDINGS OF FACT

1. More than a thousand acres in eastern Leon County comprise the drainage basin giving rise to the unnamed stream that intermittently wends its way across the Alvarez property, crosses the 30-foot wide "tongue" of the Nashes' lot, and traverses the Saltiels' land on its way to the Alford Arm of Lake Lafayette (unless it reaches Alford Arm earlier because rain or other conditions have raised the lake, moving the water's edge upland.)

   
   

2. Although neighbors allow them ingress and egress by another route, when flooding makes the roadway impassable, Mr. and Mrs. Nash have no legal right of access other than by the private road which crosses the intermittent stream. In addition to wetlands on either side, part of the streambed, 15 feet wide where it meets the roadway, was originally filled in 1968, when the private drive was built.

   
   

3. The strip of land, 30 feet wide and 700 feet long that underlies most of the private road, joins the part of the parcel where the Nashes' house stands to Deep Wood Trail, the public thoroughfare which the private road enters.

   Leaving a car on the Deep Wood Trail side of the stream, wading across to the other side, and hiking to the house pose difficulties for Mr. Nash, who has muscular dystrophy.

   
   

4. Under some conditions, the roadbed acts as a dam. When the lake is low, water flowing downstream may be impeded. When the lake is high, backwater moving in the other direction may be impeded. Of the two culverts installed when the private road was constructed, each with a diameter of 18 inches, only one permits water to flow through now, and even it is partially clogged.

   
   

5. When Lake Lafayette rises above 45.3 feet NGVD, Alford Arm spills over the terrain between it and the Nashes' road, and reverses the flow in the streambed where it intersects the roadway. The "invert of the stream at the subject crossing [is] 44.3 feet [NGVD]." T.402. The roadbed is submerged in the vicinity of the stream when Alford Arm rises above 46.7 feet NGVD.

   
   

6. The Nashes propose to excavate the streambed (about two and a half feet deep in the natural channel on either side of the existing fill) where it crosses (diagonally) the Nashes' private road, remove the existing culverts together with the soil in which they are embedded, install five culverts, each

   24 inches in diameter, in their stead,

   
   

   install cement bag riprap at the ends of the culverts, remove 11 cubic yards of dirt from a 205' by 10' wide section of existing road surface and replace with 19 cubic yards of lime rock surface,

   
   

   Nashes' Exhibits Nos. 5 and 6, realigning the roadway slightly (to avoid the existing encroachment on the Saltiels' property) and increasing the roadbed's elevation over a 205-foot stretch by no more than four inches. Five trees are to be removed, but other trees are to be protected "by tree protection barricades." Nashes' Exhibit No. 7A. Filter fences upstream and down would contain turbidity during construction. The plan is to lay sod and plant grass seed afterwards in order to prevent erosion.

   
   

7. Larger culverts would permit the flow of a greater volume of water at lower velocity, more closely approximating the natural regime and reducing scour or erosion downstream. Even when water levels exceeded the elevation of the existing roadbed, more water than the existing culverts can accommodate could move through the proposed replacement culverts, and at a slower velocity.

   
   

8. At water levels above the existing grade and below the proposed, slightly higher grade, however, the four inches or less of limerock added to the roadbed would act as a (presumably somewhat porous) barrier to flows that could now move over the roadway unimpeded. The proposed improvements would have no discernible effect on water levels whenever Alford Arm overtopped the roadbed.

   
   

9. Ted L. Biddy, the professional engineer called as a witness by the Nashes, testified that a 25-year return two-hour storm would raise water immediately upstream of the roadway, when runoff concentrated there, to levels above the existing roadway grade, assuming that the drainage basin was saturated at the time of the rainfall and that all ponds within the basin were full, but that the level of Lake Lafayette was at or below 45.3 feet NGVD.

   T.489. "Ordinary high water for Alford Arm is 45.7 [feet NGVD.]" T.486.

10. On this record, it can only be a matter of speculation how often (if ever) a 25-year return, two-hour storm might be expected to occur after rainfall has saturated the ground and filled all ponds in the drainage basin without raising the lake above 45.3 feet NGVD. The wet conditions Mr. Biddy assumed already to obtain in the drainage basin at the time of the hypothetical storm seem unlikely to coincide with the low lake level assumed to occur simultaneously. Alford Arm's 100-year flood level is 51 feet NGVD, "50.25 for the 25 year flood or rainfall, and elevation 49.9 for the 10 year storm water event." T.425.

    
    

11. In any event, flooding of the Saltiels' property attributable to the proposed raising of the roadway would last only a matter of hours every quarter of a century according to Mr. Biddy, and would represent temporary diversion of water that would otherwise have flooded their property downstream of the roadway. Even then, no house or structure on the Saltiels' property would be affected nor any part of their property not within the 100-year flood plain. At all water levels below the existing roadway grade, the overwhelmingly more frequent condition, larger culverts would prevent or diminish flooding that might otherwise reach the Saltiels' property upstream of the roadway.

    
    

12. By impeding flows downstream, the roadway affords some solids suspended in the water an opportunity to precipitate, instead of being borne on into Alford Arm. Under certain conditions, the larger culverts proposed by the Nashes would reduce time for particulate matter to settle upstream of the roadway; the greater volume of flow through larger culverts would reduce the time water was impounded upstream. Uncontroverted expert testimony established, however, that any increase in turbidity in water reaching Alford Arm would not violate applicable standards.

    
    

    CONCLUSIONS OF LAW

    
    

13. Since DER referred respondent's hearing request to the Division of Administrative Hearings, in accordance with Section 120.57(1)(b)3., Florida Statutes (1991), "the division has jurisdiction over the formal proceeding." Section 120.57(1)(b)3., Florida Statutes (1991).

    
    

14. The courts view it "as fundamental that an applicant for a license or permit carries 'the ultimate burden of persuasion' of entitlement through all proceedings, of whatever nature, until such time as final action has been taken by the agency." Florida Department of Transportation v. J.W.C. Co., Inc., 396 So.2d 778, 787 (Fla. 1st DCA 1981); Zemour,Inc., v. State Division of Beverage,

    347 So.2d 1102 (Fla. 1st DCA 1977) (lack of good moral character found "from evidence submitted by the applicant"). See generally Balino v. Department of Health and Rehabilitative Services, 348 So.2d 349 (Fla. 1st DCA 1977). A permit "applicant shall have the burden of establishing . . . entitlement "

    Rule 17-103.130(1)(a), Florida Administrative Code.

    
    

15. The Warren S. Henderson Wetlands Protection Act of 1984 governs DER dredge and fill permitting. Section 403.918(1), Florida Statutes (1991), provides:

    
    

    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. . . .

    (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:

    
    

    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.

    
    

    These criteria are to be understood in light of the purposes of the Warren S. Henderson Wetlands Protection Act of 1984, Miller v. State Department of Environmental Regulation, 504 So.2d 1325 (Fla. 1st DCA 1987), and in keeping with the following DER rule provisions:

    
    

    1. Florida's wetlands are a major component of the essential characteristics that make this State an attractive place to live. Wetlands perform economic and recreational functions that would be costly to replace should their vital character be lost; and

       
       

    2. The economic, urban, and agricultural development of this State has necessitated the alteration, drainage, and development of wetlands. While State policy permitting the uncontrolled development of wetlands may have been appropriate in the past, the continued elimination or disturbance of wetlands in an

       uncontrolled manner will cause extensive damage to the economic and recreational values which Florida's remaining wetlands provide; and

    3. It is the policy of this State to establish reasonable regulatory programs which provide for the preservation and protection of Florida's remaining wetlands to the greatest extent practicable, consistent

       with private property rights and the balancing of other State vital interests; and

       
       

    4. It is the policy of this State to consider the extent to which particular disturbances of wetlands are related to uses or projects which must be located within or in close proximity to the wetland and aquatic environment in order to perform their basic functions, and the extent to which particular disturbances of wetlands benefit essential economic development.

    
    

    Rule 17-312.015(1), Florida Administrative Code. While the rule is to be taken into account, its provisions "shall not apply . . . as permitting criteria." Rule 17-312.015(1), Florida Administrative Code. The statutory criteria are to be balanced and weighed against each other. Peebles v. State Department of Environmental Regulation, 12 F.A.L.R. 1961 (DER; April 11, 1990).

    
    

16. Petitioners correctly point out that "the conclusions reached by the staff personnel of the agency enjoy no presumption of correctness," Petitioners' Proposed Recommended Order, p. 49, once formal administrative proceedings begin. See generally Couch Construction Co. v. Department of Transportation, 361 So.2d

    172 (Fla. 1st DCA 1978). But the testimony of DER staff and others at the de novo evidentiary hearing established no reasonable foreseeable adverse effect of the kind made pertinent by Section 403.918, Florida Statutes (1991). See Miller

    v. State Department of Environmental Regulation, 504 So.2d 1325 (Fla. 1st DCA 1987). Restoration of a more natural regime, under most circumstances, should have beneficial effects on the environment.

    
    

17. The Nashes' permit application fails to specify that they seek a dredge and fill permit. But the notice of intent to issue clears up any possible confusion on that score. Whether the Nashes need any other permit to improve their driveway is not at issue in this proceeding.

RECOMMENDATION

It is, accordingly, RECOMMENDED:

That DER issue a dredge and fill permit to Mr. and Mrs. Nash for the project described in their application on the conditions stated in the notice of intent to issue.

DONE and ENTERED this 28th day of August, 1992, in Tallahassee, Florida.

ROBERT T. BENTON, II

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, FL 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 28th day of August, 1992.

APPENDIX

Petitioners' proposed findings of fact Nos. 2 and 10 have been adopted, in substance, insofar as material.

With respect to petitioners' proposed finding of fact No. 1, what knowledge petitioners are charged with is a matter of law.

Petitioners' proposed findings of fact Nos. 3, 4, 7, 8, 11, 12, 13, 14, 15,

16, 17, 18, 19, 20, 21, 22, 23, 24, 25, 26, 27, 28, 29 and 31 pertain to

subordinate matters.

Petitioners' proposed findings of fact Nos. 5, 6 and 32 pertain to immaterial matters as does petitioners' proposed finding of fact No. 9. Only the dredge and fill permit DER proposes to grant the Nashes is at issue.

With respect to petitioners' proposed finding of fact No. 30, the calculations of both Mr. Flatt and Mr. Biddy seem to be flawed.

With respect to petitioners' proposed finding of fact No. 33, it is not clear that the proposed project would increase the flooding on the Saltiels' property significantly. Temporally de minimis, the change might amount only to relocating the flooding.

With respect to petitioners' proposed finding of fact No. 34, see finding of fact No. 12.

With respect to petitioners' proposed finding of fact No. 35, larger culverts will decrease the velocity of the flow through the culverts.

Petitioners' proposed finding of fact No. 36 is immaterial because it does not relate to any applicable rule or statutory standard.

With respect to the individual respondents' and intervenor's (applicants') proposed findings of fact Nos. 1 and 2, the application does not specify dredge and fill.

The applicants' proposed findings of fact Nos. 3, 4, 5, 7, 8, 10, 17, 18, 19, 20 and 32 have been adopted, in substance, insofar as material.

With respect to the applicants' proposed finding of fact No. 6, backwater flows at levels above 45.3 feet NGVD.

With respect to the applicants' proposed finding of fact No. 9, the OHW is

45.7 feet NGVD.

With respect to the applicants' proposed finding of fact No. 11, testimony so implied.

With respect to the applicants' proposed finding of fact No. 12, Mr. Nash suffers from muscular dystrophy.

The applicants' proposed findings of fact Nos. 14 and 15 pertain to subordinate matters.

With respect to the applicants' proposed finding of fact No. 16, the only testimony regarding flooding concerned the critical 25-year return storm.

With respect to DER's proposed findings of facts Nos. 1 and 2, the application does not specify dredge and fill.

With respect to DER's proposed finding of fact No. 3, backflows begin at

45.3 feet NGVD.

With respect to DER's proposed finding of fact No. 4, not all fill would be removed.

With respect to DER's proposed finding of fact No. 5, testimony so implied.

With respect to DER's proposed finding of fact No. 6, no statute or rule specifies a design storm.

DER's proposed finding of fact No. 7 is really a conclusion of law.

With respect to DER's proposed finding of fact No. 8, less settling may result in more suspended solids under some conditions.

DER's proposed findings of fact Nos. 9, 10, 11 and 12 have been adopted, in substance, insofar as material.

DER's proposed finding of fact No. 13 is immaterial to the merits.

COPIES FURNISHED:

John A. Barley

P.O. Box 10166 Tallahassee, FL 32302

Donna H. Stinson Moyle, Flanigan, Katz,

Fitzgerald & Sheehan, P.A.

118 North Gadsden Street Suite 100

Tallahassee, FL 32301

Candi E. Culbreath Patricia Comer

2600 Blair Stone Road Tallahassee, FL 32399-2400

Carlos Alvarez

c/o Hopping, Boyd, Green & Sams

123 South Calhoun Street Tallahassee, FL 32301

Daniel H. Thompson, General Counsel Department of Environmental

Regulation

2600 Blair Stone Road Tallahassee, FL 32399-2400

Carol Browner, Secretary Department of Environmental

Regulation

2600 Blair Stone Road Tallahassee, FL 32399-2400

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

ALL PARTIES HAVE THE RIGHT TO SUBMIT WRITTEN EXCEPTIONS TO THIS RECOMMENDED ORDER. ALL AGENCIES ALLOW EACH PARTY AT LEAST 10 DAYS IN WHICH TO SUBMIT WRITTEN EXCEPTIONS. YOU SHOULD CONTACT THE AGENCY THAT WILL ISSUE THE FINAL ORDER IN THIS CASE CONCERNING AGENCY RULES ON THE DEADLINE FOR FILING EXCEPTIONS TO THIS RECOMMENDED ORDER. ANY EXCEPTIONS TO THIS RECOMMENDED ORDER SHOULD BE FILED WITH THE AGENCY THAT WILL ISSUE THE FINAL ORDER IN THIS CASE.

Docket for Case No: 91-007972

Orders for Case No: 91-007972