E. KIRCHHOFF, JR., )
)
Petitioners, )
)
vs. ) CASE NO. 76-1235
) DEPARTMENT OF ENVIRONMENTAL ) REGULATION, )
)
Respondent. )
)
RECOMMENDED ORDER
Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, G. Steven Pfeiffer, held a public hearing in this case on October 20, 1976, in Sanford, Florida.
APPEARANCES
The following appearances were entered:
For Petitioner: William Kirchhoff,
appeared on his own behalf Sanford, Florida
For Respondent: Vance W. Kidder
Tallahassee, Florida
By letter dated June 9, 1976, the Department of Environmental Regulation ("Respondent" hereafter) gave notice of its intent to deny the application of Conley P. Glover and William Kirchhoff ("Petitioner" hereafter) for certification for a landfill project in the St. Johns River in Seminole County, Florida. Petitioners filed a Request for Formal Proceeding with Respondent on or about June 21, 1976. In accordance with Florida Statutes, Section 120.57(1)(b)(3), the Respondent requested that a hearing officer from the Division of Administrative Hearings conduct the hearing. The final hearing was scheduled by notice dated July 15, 1976.
The Petitioner William Kirchhoff appeared at the hearing as the only witness on behalf of Petitioners. The Respondent called Steve Beman, a field inspector employed by the Respondent, as its only witness. Hearing Officer's Exhibits 1 - 3, Petitioners' Exhibits 1 - 3, and Respondent's Exhibits 1 - 12 were received into evidence. The undersigned conducted an inspection of the Petitioners' property in the presence of the Petitioner Kirchhoff and counsel for the Respondent. The parties were invited to submit post-hearing memoranda of law, but none have been filed.
FINDINGS OF FACT
The Petitioner Kirchhoff owns property bounded by the St. Johns River, and by U.S. Highway 17 and 92 in Seminole County, Florida. A legal description of the property is set out on a plat of survey which was received in evidence as Petitioners Exhibit 3. The state has recently constructed a boat ramp in close proximity to the property. The Petitioner Glover proposed to Kirchhoff that the land be developed as a fish camp. Petitioners were successful in getting the land zoned in order to allow for construction of a fish camp. A one quarter acre plot within the land owned by Kirchhoff was designated by the Petitioners as the site for their proposed fish camp. Much of this one quarter acre is low and wet, and a landfill is essential to Petitioners' plans. Petitioners' landfill and construction plans are described in the original application which Petitioners submitted to the Respondent. The application, and attached drawings show an approximately 100' x 100' landfill. The location of the landfill is marked with a red pencil on the aerial photograph map which was received in evidence as Petitioners' Exhibit 1. The major portion of the landfill would be used for parking purposes, and a 30' x 60' building would be constructed 20' from the waterward edge of the fill. The fill would cover a portion of the flood plain of the St. Johns River and would average 4 to 6 feet in depth.
The flood plain along the bank of the St. Johns River in the area of the Petitioners' proposed landfill is approximately 1800 feet wide. U. S. Highway 17 - 92 has cut off approximately 1400 feet of the flood plain from the river itself. The portion of the flood plain immediately adjacent to the river, which is bounded by the highway and the river, is dominated by phragmites reeds, willows and cypress. The uplands of the proposed project is limited to the filled roadbed of highway 17-92. The landfill would merge with the highway roadbed, and would primarily cover wetlands within the St. Johns River flood plain.
Such wetlands as the Petitioners proposed to fill provide a habitat and breeding grounds for many varieties of fish, shrimp, and anthropods. During the early stages of their lives many varieties of fish including bluegills, bream, sunfish, bass, and catfish live in such an area in order to hide from larger creatures. The wetland vegetation provides an essential part of the food chain for aquatic wildlife in the St. Johns River. The marsh vegetation also provides filtration from upland runoff. Runoff from the highway is filtered to a great extent by the marsh vegetation before it is received in the St. Johns River.
The filling of such a marsh area would have an adverse impact upon the quality of water in the St. Johns River because of loss of the filtering effect of marshland vegetation. Furthermore, the construction of a commercial fishing camp would add additional runoff. The filtration effect provided by the landfill itself could not compensate for the loss of filtration from the marshland vegetation.
The project proposed by the Petitioners encompasses only one fourth acre of the St. Johns River flood plain. The loss in wildlife habitat, and in filtration provided by wetland vegetation from this single project may be negligible, and not subject to accurate measurement. It is clear, however, that the project would provide an adverse affect, albeit slight, and that any proliferation of such projects would eliminate an essential wildlife habitat, an essential part of the aquatic food chain, and an essential filtration system.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties to this action, and over the subject matter.
An applicant for landfill certification has the burden of affirmatively providing reasonable assurance that the short term and long term effects of the landfill will not result in violations of the water quality criteria, standards, requirements and provisions of the Florida Statutes, and the rules and regulations of the Respondent. Rules 17-4.07, 17-4.28(3), Florida Administrative Code.
The Petitioners have failed to establish that their proposed landfill project will not result in violations of the water quality criteria, standards, requirements and provisions of the Florida Statutes and the rules and regulations of the Respondent. The evidence presented at the hearing establishes the contrary. The Petitioners' proposed project would have an adverse impact upon the water quality of the St. Johns River in that it would reduce an essential habitat for aquatic wildlife, and would reduce the essential filtering effect provided by marshland vegetation.
The Petitioners' application for landfill certification should be denied.
