STATE OF FLORIDA DIVISION OF ADMINISTRATIVE HEARINGS

WILLIAM PHILLIP WALLIS, JR., ) & JOYCE WALLIS, his wife; CHARLES )

M. NORLIN & JEAN A. NORLIN, his ) wife; JUDSON I. WOODS, JR. & )

CAROLYN M. WOODS, his wife; ) LENVIL R, HALL & MARY G. HALL, )

his wife; W. D. GOODRUM & MIMA )

1. GOODRUM, his wife; WILLIAM ) COLEMAN & GAIL COLEMAN, his wife; ) GEORGE C. SHOTWELL & NORMA SHOTWELL, ) his wife; and FRANK GERUSO & ALICE ) GERUSO, his wife, )

   )

   Petitioners, )

   )

   vs. ) CASE NO. 78-948

   ) TYMBER CREEK INC. and DEPARTMENT ) OF ENVIRONMENTAL REGULATION, )

   )

   Respondents. )

   )

   
   

   RECOMMENDED ORDER

   
   

   This matter came on for hearing in Daytona Beach, Florida, before the Division of Administrative Hearings, by its duly designated Hearing Officer, Robert T. Benton, II, on August 3, 1978. Mr. J. Stanley Shirah appeared on behalf of Tymber Creek, Inc. The other parties were represented by counsel:

   
   

   APPEARANCES

   
   

   For Petitioner: Judson I. Woods, Jr., Esquire

   115 East Granada Boulevard Ormond Beach, Florida 32074

   
   

   For Respondent: Ray Allen, Esq.

   2600 Blair Stone Road Tallahassee, Florida 32301

   
   

   By letters dated April 17, 1978, respondent Department of Environmental Regulation (DER) gave "notice of its intent to issue a permit (certification) pursuant to Chapters (253 and/or 403), Florida Statutes" to respondent Tymber Creek, Inc. (TCI) for the removal of a portion of "unauthorized fill placed in the floodplain of the Little Tomoka River," for the alteration of an "existing boatramp access road," for the construction of three wooden foot bridges, and for the construction of "a boatramp 16 feet wide by 16 feet long with an adjacent dock 5 feet wide by 24 feet long."

   
   

   At the hearing, counsel for petitioners raised the question whether TCI owned all of the land on which it proposed to construct the dock and the boat

   ramp, a question which was not alluded to in the petition itself. Mr. Wheeler, an employee of DER, testified that DER had made no investigation as to the ownership of the property, accepting at face value an affidavit from Mr. Shirah. In the opinion of counsel, the only possible landowner other than TCI would be the State of Florida. The parties agreed that they would make submissions to the Department of Natural Resources in order to resolve the question whether the proposed sites for the dock and boat ramp were located on state lands. As a corollary, it was agreed that no question of ownership would be decided in the present proceedings.

   
   

   At the close of the taking of evidence, Mr. Shirah, counsel, and the hearing officer visited the project site for a view.

   
   

   FINDINGS OF FACT

   
   

   1. Respondent TCI has more than 70 homes completed or under construction in furtherance of plans to build 141 single family residences as part of Tymber Creek Phase I, a development in Volusia County. The development site is partially bounded by the Little Tomoka River, a natural body of water which is navigable in fact. The site of the construction respondent DER proposes to permit is home to wildlife of various kinds, including woodpeckers, great horned owls, herons, mussels, manatees, snakes, turtles and alligators. At the present time, boat traffic on the Little Tomoka River is negligible.

      
      

   2. The dock TCI proposes to build would have a total area of 120 square feet and would not impede the flow of the river. It would protrude over the water no more than five feet along the bank of the river at a point where the river widens, described by some of the witnesses as a lagoon, and would not constitute a hazard to navigation. With respect to the dock, the foot bridges, the boat ramp and the removal of the agreed upon portion of unauthorized fill, the permit DER proposes to issue would be before the fact.

      
      

   3. According to DER's appraisal of TCI's original, revised permit application, which was received in evidence as DER's exhibit No. 5, TCI made revised application, on November 29, 1977, for "after-the-fact approval for the placement of approximately 3500 cubic yards of fill After TCI had filled, it constructed parking and recreational facilities. In evaluating TCI's application, Steve Beeman, a DER employee, described the site in January of 1978:

      
      

      Approximately 1.6 acres of filled flood plain is presently covered by a sports complex including tennis courts, swimming pool and recreation building and an asphalt parking lot. An additional 3000 square feet has been filled and paved (asphalt

      was applied after receipt of DER cease and desist notice) for [access to] a [proposed] boatramp and parking area, and

      approximately 14,000 square feet of swamps have been filled in the construction of a 1800+ feet "natural trial". DER's exhibit No. 5.

      
      

      By letter dated February 22, 1978, respondent DER notified respondent TCI of its intent to deny TCI's initial application, as revised. Among the reasons DER gave for its intended denial were expected violations of various water quality

      standards, including a prohibition against oils and greases in concentrations greater than 15 mg. per liter ("or that no visible oil, defined as iridescence, be present to cause taste or odors, or interfere with other beneficial uses.") DER's exhibit No. 4. Rule 17-3.05(2)(r) , Florida Administrative Code. This water quality standard violation was anticipated because of "the [projected] focussing of stormwater runoff into the Little Tomoka River, across paved surfaces, which are high in petroleum based pollutants." DER's exhibit No. 5.

      
      

   4. In its notice of intent to issue a permit, DER proposes to authorize TCI "to realign (straighten) existing boatramp access road." DER's exhibit No.

1. Mr. Wheeler's letter to Mr. Shirah of April 6, 1978, DER's exhibit No. 2, describes the proposed access road change as part of "discussions and agreements concerning resolution of the initial unauthorized fill and subsequent after-the- fact application." A drawing attached to this letter indicates that the contemplated alteration of the roadway would decrease the amount of paved surface to some unspecified extent. Another part of these "discussions and agreements concerned removal of some 1900 cubic yards of fill. Most of the fill designated for removal had been placed with the idea of creating a dry pathway through the marshy area separating the Little Tomoka River from an asphalt parking area. So placed, the fill dirt acts as a dike, preventing the preexisting communication between the waters of the Little Tomoka River and the waters of the adjacent marsh.

   
   

   1. At the hearing, Mr. Wheeler testified that, if revised in accordance with DER's exhibit No. 2, TCI's project would pose no threat to water quality, but he conceded that the effects of gasoline boat motors were not considered. An increase in beat traffic would likely result in an increase in oils and greases in the waters of the Little Tomoka River.

      
      

      CONCLUSIONS OF LAW

      
      

   2. No permit under Chapters 253, 373 or 403, Florida Statutes (1977), is required in order for TCI to construct the dock it proposes to build. Section 403.813(2)(b), Florida Statutes (1977), exempts from the permitting requirements of Chapters 253, 373 .and 403, Florida Statutes (1977), "the installation of private docks of 500 square feet or less overwater surface area, constructed on pilings so as not to involve filling or substantially impede the flow or create a navigational hazard." The applicable rule defines a private dock as "a single pier at parcel of property. Provided, that for the purposes of this rule,

      multi-family living complexes . associated with the proposed private dock shall be treated as one parcel of property regardless of the legal division of ownership or control Rule 17-4.04(10), Florida Administrative Code.

      
      

   3. Pursuant to Section 403.813(2)(c), Florida Statutes (1977), and Rule 17-4.04(10)(e), Florida Administrative Code, a similar exemption is available for boat ramps "on artificial bodies of water Section 403.813(2)(c), Florida Statutes (1977)(emphasis supplied). This exemption is unavailable to TCI inasmuch as the Little Tomoka River is a natural body of water.

      
      

   4. TCI adduced no evidence tending to show that removal of the fill it deposited without a permit "would be more damaging to the environment or the marine resources sought to be protected by [Chapter 253, Florida Statutes (1977)] than would be," Section 253.124(7)(a), leaving things as they are.

      
      

   5. Petitioners failed to show that issuance of the permit would result in the violation of any specific water quality standard. On the other hand, the evidence did show that TCI did not "affirmatively [provide] the Department with

      reasonable assurance based on plans, test results and other information," Rule 17-4.07(1), Florida Administrative Code, that "construction . . . operation, or activity of [the proposed boat ramp] will not . cause pollution in contravention of Department standards, rules or regulations," id., specifically Rule 17-3.05 (2)(r), Florida Administrative Code, governing levels of oil and grease as they affect water quality.

      
      

   6. An anticipated violation of Rule 17-3.05(2)(r), Florida Administrative Code was one reason given by DER for its denial of TCI's, original application for permit. Quite apart from petroleum spillage that might or might not attend the use of a boat ramp, runoff from the extensive asphalt paving with which TCI covered much of its unauthorized fill would be able to make its way more readily and with less filtration to the Little Tomoka River, if the proposed boat ramp is built. Although DER proposes to authorize a slight reduction in the amount of asphalt covered surface in connection with authorizing the boat ramp, it also proposes to authorize the removal of fill dirt which might otherwise serve to impound some of the runoff from the asphalt, keeping it out of the river.

      
      

   7. In accordance with the agreement of the parties, the ownership question has been temporarily set to one side, but it must be resolved and, depending on its resolution, consent must be obtained, in order for DER to issue the permit which it gave notice of intent to issue. See Dog Island Company v. Joseph W. Landers, Jr., No. 78-105 (Final Order entered July 25, 1978). Respondent DER is forbidden to "issue any permit, license, or other evidence of authority involving the use of sovereignty or other lands of the state . . . until the applicant for such permit . . . shall have received from the Board of Trustees of the Internal Improvement Trust Fund the required lease, license, easement, or other form of consent authorizing the proposed use and exhibited it to [DER]." Section 253.77, Florida Statutes (1977). It is of critical importance, therefore, whether the property on which TCI proposes to construct foot bridges and a boat ramp belongs entirely to TCI or in, some part to the State of Florida.

RECOMMENDATION

Upon consideration of the foregoing, it is RECOMMENDED:

That respondent DER, deny the permit is proposed to issue to respondent TCI in letters to petitioners dated April 7, 1978.

DONE and ENTERED this 23rd day of August, 1978, in Tallahassee, Florida.

ROBERT T. BENTON, II

Hearing Officer

Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304

(904) 488-9675

COPIES FURNISHED:

Segundo J. Fernandez, Esquire Assistant General Counsel Twin Towers Office Building 2600 Blair Stone Road

Docket for Case No: 78-000948

Orders for Case No: 78-000948