STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

VINCENT J. WOEPPEL, )

)

Petitioner, )

)

vs. ) CASE NO. 92-4063

) DEPARTMENT OF ENVIRONMENTAL ) REGULATION, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the above-styled matter was heard before the Division of Administrative Hearings by its duly designated Hearing Officer, Daniel M. Kilbride, on October 22, 1992, in Sebring, Florida. The following appearances were entered:

APPEARANCES

For Petitioner: Vincent J. Woeppel (pro se)

3955 Placid View Drive Lake Placid, Florida 33852

For Respondent: Francine M. Ffolkes, Esquire

Assistant General Counsel

Department of Environmental Regulation 2600 Blair Stone Road

Tallahassee, Florida 32399-2400 STATEMENT OF THE ISSUES

Whether Petitioner is entitled to the issuance of a permit to conduct dredge and fill activities within the waters of the State of Florida, pursuant to the provisions of Sections 403.918(2), Florida Statutes.

PRELIMINARY STATEMENT

Petitioner applied for a permit from the Respondent to conduct dredge and fill activities in the waters of the State of Florida adjacent to his property on December 12, 1991. On May 22, 1992, the Respondent issued its Notice of Permit Denial. The Petitioner timely petitioned for an administrative hearing, and this matter was referred to the Division of Administrative Hearings, and this formal hearing followed.

At the hearing Petitioner testified on his own behalf, and five exhibits were admitted in evidence as joint exhibits. The Respondent offered the testimony of John Fellows, Environmental Specialist. The hearing was recorded but not transcribed. Neither party submitted proposed findings of fact or conclusions of law.

Based upon all of the evidence, the following findings of fact are determined:

FINDINGS OF FACT

1. On December 12, 1991, Petitioner applied to the Respondent for a permit/water quality certification to grade and level, in stages, approximately 20,000 square feet or 0.45 acres of lake front to remove and prevent the formation of berms and depressions in the exposed lake bottom adjacent to his property.

   
   

2. The project site is located at 3955 Placid View Drive which lies along the shoreline of Lake Placid, a natural waterbody in Highlands County, Section 24, Township 37 South, Range 29 East.

   
   

3. Lake Placid is not an aquatic preserve, and is not an outstanding Florida water. It has been designated as a Class III waterbody.

   
   

4. Petitioner's unsubdivided lot lies at the western end of Lake Placid. The shoreline measures approximately 203 feet. The western lot line also measures 203 feet, and fronts on Placid View Drive.

   
   

5. The water level of Lake Placid has receded in recent years which allows large expanses of what was historically lake bottom to become beaches, lawns, and areas of habaceous marsh.

   
   

6. The specific project which the Petitioner proposes calls for the leveling of the berms and depressions which form on the exposed lake bottom from collected water, which stagnates and permits various noxious creatures, including mosquitoes, to breed in them. The berms and depressions are approximately six inches high or deep and between one and three feet wide, and generally extend the length of the shoreline. The proposed area affected is approximately 20,000 square feet or 0.45 acres of lake front, although Petitioner proposes to actually level a much smaller area in stages of approximately 2,000 square feet on an "as needed" basis. No material other than sod in the beach area is proposed to be brought from or removed to off-site locations.

   
   

7. Petitioner is highly sensitive to mosquito bites.

   
   

8. The area proposed for leveling was previously cleared of vegetation without authorization. Very little revegetation of the shoreline has occurred since the area was cleared. Vegetation colonizing the beach, at present, includes pennyworts (Centella asiatica and Hydrocotyle umbellata) and water- hyssops (Bacopa sp.) Blue green algae was observed in the depressions which have formed along the shore since the clearing. Fauna observed on-site included gulls (Larus sp.), small fish in the adjacent lake shallows, and water-boatmen (Order Hemiptera) in the depressions. An area landward of the wetlands considered here was also cleared previously and is proposed to be seeded.

   
   

9. An adjacent, uncleared shoreline was vegetated with primrose willow (Ludwigia sp.), cattail (Typha sp.), flat sedge (Cyperus odorata), and other wetland species for an almost 100% plant coverage.

10. The Petitioner proposes to use a small tractor in leveling of the shore which will cause turbidity in the lake water. No turbidity controls were proposed by the Petitioner.

    
    

11. Petitioner failed to provide reasonable assurances that the turbidity caused by the earthmoving equipment in areas presently above water would not cause degradation of water quality in Lake Placid; would not contribute to the long-term degradation of water quality in the lake caused by upland runoff that would flow into the lake without benefit of retention or filtration by shoreland vegetation (freshwater herbaceous habitat) which would be permanently removed under Petitioner's proposal.

    
    

12. Nutrients such a nitrogen and phosphorus and pollutants such as pesticides, herbicides and other chemicals commonly used in lawn and garden care would be included in the runoff, and would have an adverse impact on fishing and marine productivity in the lake.

    
    

13. The project would have a minor adverse impact on erosion and soil stabilization in the area surrounding the lake.

    
    

14. Petitioner has failed to provide reasonable assurance that the proposed project is not contrary to the public interest.

    
    

15. Petitioner can mitigate the project by eliminating the use of heavy equipment and substitute hand equipment to smooth out ruts, berms and depressions in jurisdictional areas.

    
    

    CONCLUSIONS OF LAW

    
    

16. The Division of Administrative Hearings has jurisdiction over the subject matter of this proceeding, and the parties thereto, pursuant to subsection 120.57(1), Florida Statutes.

    
    

17. 403.913(1)(2), Florida Statutes, provides in pertinent part:

    
    

    1. No person shall dredge or fill in, on, or over surface waters without a permit from the department, unless exempted by statute or department rule.

    2. The landward extent of waters shall be determined as provided in s. 403.817, except that the department may exert its jurisdiction to the ordinary or mean high-water line of waters whenever the landward extent, if determined in accordance with Rule 17-4.022, Florida Administrative Code, occurs waterward of the ordinary or mean high-water line. The determinations made pursuant to this subsection shall be to establish the regulatory jurisdiction of the department and are not intended to be a delineation of the boundaries of lands for purposes of title.

       
       

18. Section 403.918(1),(2)(a)(b), provides in pertinent part:

    
    

    1. A permit may not be issued under ss. 403.91-403.929 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. If the applicant is unable to meet water quality standards because existing ambient water quality does not meet standards, the department shall consider mitigation measures proposed by or acceptable to the applicant that cause net improvement of the water quality in the receiving body of water for

          those parameters which do not meet standards. Reclamation and restoration programs conducted pursuant to s. 211.32 may be considered as mitigation to the extent that they restore or improve the water quality and the type, nature, and function of biological systems present at the site prior to the commencement of mining activities.

          
          

19. An applicant for a permit has the burden of proof and the burden of persuasion to show entitlement to the Wetland Resource Regulation permit which he seeks.

    
    

20. In order to show entitlement to a dredge and fill permit, an applicant must show that he has provided reasonable assurance that water quality standards will not be violated and that the project is not contrary to the public interest. Both of these tests must take into consideration the cumulative impacts of similar projects which are existing, under construction, or reasonably expected in the future. Sections 403.918(1),(2), Florida Statutes (1991); Caloosa Property Owners' Association v. Department of Environmental Regulation, 462 So.2d 523 (Fla. 1st DCA 1985).

    
    

21. At the hearing, Petitioner introduced no persuasive evidence that he could provide reasonable assurances that the project was not contrary to the public interest. However, the Department introduced expert testimony that reasonable assurance had not been provided that the project would not cause violations of water quality standards, the permanent loss of wetlands vegetation, and long term negative cumulative impact of Lake Placid.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Petitioner's application for Wetland Resource

Regulation permit be DENIED.

DONE and ENTERED this 8th day of March, 1993, in Tallahassee, Florida.

DANIEL M. KILBRIDE

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings ths 8th day of March, 1993.

COPIES FURNISHED:

Francine M. Ffolkes, Esquire Department of Environmental

Regulation

2600 Blair Stone Road Tallahassee, Florida 32399-2400

Mr. Vincent J. Woeppel 3955 Placid View Drive Lake Placid, Florida 33852

Daniel H. Thompson Department of Environmental

Regulation

Acting General Counsel

Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32399-2400

Virginia B. Wetherell Secretary

Department of Environmental Regulation

Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32399-2400

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions to the Recommended Order. All agencies allow each party at least 10 days in which to submit written exceptions. Some agencies allow a larger period within which to submit written exceptions. You should consult with the agency that will issue the final order in this case concerning their 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: 92-004063

Orders for Case No: 92-004063