RONALD E. DOWDY, )
vs. ) CASE NO. 79-219
Respondent. )
) STATE OF FLORIDA, DEPARTMENT ) OF ENVIRONMENTAL REGULATION, )
vs. ) CASE NO. 79-220
RONALD E. DOWDY, )
Respondent. )
Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, James E. Bradwell, held a public hearing in these cases on May 2, 1979, in Orlando, Florida. Based on joint motions filed by the parties' counsel, the briefing period was extended through July 6, 1979.
For Petitioner/Respondent, Ronald E. Dowdy:
Michael G. Williamson, Esquire Maguire, Voohris and Wells, P.A.
Segundo J. Fernandez, Esquire Assistant General Counsel 2600 Blair Stone Road Tallahassee, Florida 32301
These cases involve a petition by Ronald E. Dowdy (herein referred to as Petitioner) challenging the Department of Environmental Regulation's (Department) intent to deny his application for a permit, as well as an enforcement action brought by the Department against the Petitioner for alleged
violations of Chapter 403, Florida Statutes, and Chapter 17-4, Florida Administrative Code.
Based on the testimony of the witnesses and their demeanor while testifying, the documentary evidence introduced, the proposed findings of facts and recommended orders filed by the parties' counsel, and the arguments and citations of authority cited therein, the following relevant facts are found. 1/
This action concerns a parcel of land owned by Ronald E. Dowdy and his wife, Mary Ellen Dowdy, located at 7630 Lake Marsha Drive, Orlando, Florida.
The Department does not claim, other than regulatory authority, ownership to the land in question. On March 15, 1978, Petitioner submitted to the Department a dredging and fill permit application, file No. 48-8093-4E., to deposit 200 cubic yards of fill material waterward of the line of ordinary high water, adjacent to Petitioner's upland property on Lake Marsha. The area proposed to be filled measured 150 feet along the shoreline, 55 feet between the line of ordinary high water and ordinary low water, and 12 inches deep. (Petitioner's Exhibit 2;
D.E.R. Exhibit 9.)
On June 15, 1978, the Department gave notice of its intent to deny Petitioner's permit application, stating with particularity the specific ground on which the denial was based and allowing Petitioner fourteen (14) days in which to petition for a hearing on the denial. Within thirty (30) days of the filing of the petitioner's application, he was advised that clearance and/or approval was necessary from the Department of Natural Resources. A Final Order denying application for permit was issued June 23, 1978. Petitioner did not file a petition pursuant to Chapter 120, Florida Statutes, seeking review of either the intent to deny letter or the Final Order until January 15, 1979. The Department waived the time requirement for filing the petition.
On or about August 3, 1978, Petitioner caused to be deposited large quantities of fill in excess of the 200 cubic yards applied for along approximately 380 feet of shoreline between the line of ordinary high water and ordinary low water adjacent to his upland property. (Petitioner's Exhibit 2 and
D.E.R. Exhibits 1 and 2.)
Although Petitioner did not obtain a permit from the Department prior to commencement of the fill work described above, Orange County issued a permit (see Petitioner's Exhibit 2) which specified that the Department permit would have to be obtained prior to commencement of the fill work. The county permitted the Petitioner to fill an area along 150 feet of shoreline while the petitioner filled the entire length of the shoreline, i.e., 380 feet. As of the hearing date, Petitioner had not filed an application for a permit from either the county or the Department for the excess fill. Prior to the time that the Petitioner undertook the filling project, he met with employees of the Department who advised that a permit would be necessary prior to commencing the fill work. Department employees suggested that the State would look favorably on a reduced fill project of somewhere between 50 to 75 feet along the lake shoreline. (D.E.R. Exhibit 8.) The bulk of the fill area as completed, lies below the ordinary high water line of Lake Marsha, i.e., below the elevation line of 127 feet. (Petitioner's Exhibit 2.)
Mr. Robert Day, a pollution control specialist employed by the Department as an enforcement investigator, observed the filling activity as it
was taking place from the movement of fill by bulldozer to the sodding of the newly created fill area. (D.E.R. Exhibits 1 and 2.)
Upon discovery of the Petitioner's filling activity without a permit, the Department attempted to notify him of the violation by means of a warning notice sent by U.S. Mail, certified, return receipt requested, which Petitioner did not claim. The Department thereafter sent Petitioner a telegram which resulted in a meeting in the Department's office in Orlando. (D.E.R. Exhibits 3, 4 and 5.)
Richard Hoffman, district conservationist with the U.S. Department of Agriculture, Soil Conservation Service, was qualified as an expert in the collection and identification of soil core samples. Mr. Hoffman testified at length on a series of core samples taken on the Dowdy property confirming the fact that the Petitioner had placed fill on vegetated muck and that all but one of the core samples were below the high water line. (Petitioner's Exhibit 2 and
D.E.R. Exhibit 7.)
James Morgan, an environmental specialist of the Department, was qualified as an expert witness in the processing and appraisal of dredge and fill permit applications and their impact on water quality and wetlands ecology. Mr. Morgan advised the Petitioner on February 14, 1978, several months before the actual filling activity, that it was necessary to obtain a permit from the Department pursuant to Chapter 17-4, Florida Administrative Cede. Again, on March 16, 1978, at a meeting with Petitioner, Mr. Morgan advised the Petitioner of the necessity to obtain a permit before any filling was done. Additionally, he advised and suggested to Petitioner that with respect to his proposed activity, the Department would look favorably upon a modified application requiring a fill area of 50 to 75 feet of the lake's shoreline.
Upon receipt of Petitioner's application, Mr. Morgan conducted a permit application appraisal (D.E.R. Exhibit 9) and found that the area proposed to be filled contained deep muck deposits and was dominated by the vegetation, maidencane, with a lesser abundance of arrowhead, pickeral weed and pennywort. The dominant species was maidencane, which along with arrowhead and pickeral weed, are species found in the vegetative index for submerged lands as set forth in Section 17-4.02(17), Florida Administrative Code. (See D.E.R. Exhibits 9 and 10.)
Approximately 50 percent of the shoreline of Lake Marsha has been developed with the consequent elimination of marsh and wetland vegetation fringes of the lake. The aquatic vegetation found on the Dowdy property prior to filling performed functions of assimilating nutrients and filling deleterious substances from the waters of Lake Marsha and provided wildlife habitat. This assimilation process enabled and assisted the shoreline plants ability to absorb water containing dissolved pollutant substances which are utilized for plant food. The aquatic vegetation also filters suspended solids from the lake water. This assimilation and filtration process helps preserve water quality in a fresh water lake by both filtering runoff from the upland and cleansing the water of substances found in the water body itself. (D.E.R. Exhibit 9.) This process is commonly referred to as the "kidney effect".
The fill which has been placed in the submerged land aquatic community will, as testified by the Department's witnesses, totally eliminate portions of the kidney of Lake Marsha and has been replaced with sod which carries the potential for causing further pollution of the waters of Lake Marsha. Testimony reveals that the fill will increase the nutrient load in the lake and
dramatically decrease its ability to cope with the increased load. It is predicted by the Department's witnesses that the impact of the fill on the water quality of the lake will be significant as a substantial portion of the lake's littoral zone has been substantially eliminated. This, according to witness Morgan, can lead to the eutrophication of Lake Marsha end a resultant lower equilibrium based on poor water quality. (D.E.R. Exhibit 11.)
According to Morgan, the parameters which are expected to be violated by the fill and the resultant elimination of a submerged land aquatic plant community include phosphorous and nitrogen which are classified as nutrients under Section 17-3.061(2)(i), Florida Administrative Code, and turbidity, under Section 17-3.061(2)(g) Florida Administrative Code. (D.E.R. Exhibit 9, part 2.)
Testimony reveals that a correlation exists between the degree of shoreline development of Central Florida lakes and the water quality of such lakes. This correlation is direct and reveals that the greater the degree of shoreline development, the greater the reduction of the lake's ability to compensate for nutrient load going into the lake and, thus, lower water quality. (Testimony of Morgan and Hulbert, T.R. pp 138-139; 177-180.)
Witness Morgan testified that by restoration of the Petitioner's fill site to its original contours and elevation, the aquatic vegetation which once thrived on the site will reestablish itself and the consequent restoration of the lake's "kidney effect".
James Hulbert, a Department District Biologist qualified as an expert in the area of water pollution biology and wetlands ecology, confirmed witness Morgan's testimony regarding the impact of water quality based on Petitioner's filling, the value of the wetland vegetational community which was, according to him, destroyed by the filling, including protection of uplands and its role as a source of food and shelter for the lake's aquatic life. Witness Hulbert also confirmed the testimony of witness Morgan to the effect that a direct correlation exists between the degree of shoreline development in central Florida lakes and the lowering of water quality in such lakes. Witness Hulbert testified further that submerged lands such as the ones filled by Petitioner assimilate nutrients for preserving fisheries of fresh water lakes. Mr. Hulbert also testified that dissolved oxygen levels are expected to be degraded with severe fluctuations which would result in the dissolved oxygen levels of as low as 0.0, below the standards of Chapter 17-3, Florida Administrative Code. This increased nutrient load will, according to Mr. Hulbert, result in proliferation of such existing exotic plant species such as hydrilla and water hyacinths, and an acceleration of the lake's eutrophication. Mr. Hulbert summarized the long- range impact of the fill as both measurable and substantial and concluded that the degradation process will be steady and gradual.
Robert Bell, a real estate appraiser licensed in the State of Florida as a broker, indicates that there are other valuable uses of Petitioner's property other than filling the entire shoreline. Such uses, according to Bell, include the construction of a boardwalk, a deck, gazebo, a boat house, and even partial filling of the shoreline area for access to the water.
The Department incurred expenses and costs in preparation of this proceeding for purposes of tracing, controlling, and abating the pollution sources created by the Petitioner's dredge and fill activities in the amount of
$201.88. (D.E.R. Exhibits 14 and 15.)
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the subject matter and the parties to this action. Section 120.57(1), Florida Statutes.
The authority of the Department of Environmental Regulation is derived from Chapter 403, Florida Statutes, and Section 17-4, Florida Administrative Code.
The standards for review for Petitioner's permit application are found in Section 17-4.03; .05 and .28, Florida Administrative Code.
Section 17-4.28(2), Florida Administrative Code, provides with respect to "dredging and/or filling activities; permits, certifications", that:
(2) Those dredge and/or filling activities which are to be conducted in or connected directly or via an excavated water body or series of excavated water bodies to the following categories of waters of the state (including the submerged lands of such waters and transitional zone of a submerged land) shall obtain a permit from the department prior to being undertaken: . . .
(d) natural lakes . . .
Section 17-4.28(3), Florida Administrative Code, provides in pertinent part that:
(3) The applicant for a dredge and/or fill permit . . . shall affirmatively provide reasonable assurance to the department that the short term and long term effects of the activity will not result in violations of the water quality criteria, standards, requirements and provisions of Chapter 17-3, Florida Administrative Code.
Section 17-4.03; .07, Florida Administrative Code, reaffirms that it is the permit applicant`s burden of affirmatively providing the Department with "reasonable assurance" that the project requested will not cause pollution in contravention of Department standards, rules or regulations.
Petitioner failed to satisfy the burden of proof imposed by Section 17-4.03, .07 and .28, Florida Administrative Code, by failing to affirmatively provide the "reasonable assurances" required by those sections.
The area proposed to be filled under the permit application was characterized by a dominance of vegetational species listed in Section 17- 4.02(17), Florida Administrative Code. Said area was contiguous, adjacent and directly connected to Lake Marsha. The area, therefore, was submerged land of State waters and under the dredge and fill permitting jurisdiction of the Department pursuant to Section 17-4.28, Florida Administrative Code, and Section 403.031(3), Florida Statutes. Additionally, the area's fill was also characterized by a dominance of vegetational species listed in Section 17- 4.02(17), Florida Administrative Code, and thus also under the Department's
dredge and fill permitting jurisdiction. As such, Petitioner filled in waters of the State, as defined in Section 403.031(3), Florida Statutes, and the submerged lands of such waters, as defined in Section 17-4.02(17), Florida Administrative Code.
Based on Petitioner's filling which resulted in the alteration of the chemical, physical and biological integrity of State waters by destruction of wetlands which provide food and habitat for wildlife, and which filter deleterious substances from upland runoff, resultant harm and injury to animal, plant and aquatic life was caused, thereby violating Section 403.161(1)(a), Florida Statutes.
The Department established, by competent and substantial evidence, that restoration of the fill site involved herein would be appropriate and more desirable than the status quo. Therefore, pursuant to Section 403.121(2), Florida Statutes, the Department is authorized to take corrective action to restore and abate conditions which create violations of Chapter 403, Florida Statutes, water quality standards.
The Department incurred costs and expenses in the amount of $201.08 which are recoverable pursuant to Section 403.141(1), Florida Statutes. The Department has regulatory authority over the subject filling pursuant to Section 403.017, Florida Statutes, which provides legislative authorization for determination of the natural landward extent of State waters for regulatory purposes. (Section 403.917(1), (2) and (5); Section 17-4.02(17) and (19), Florida Administrative Code.)
RECOMMENDED this 19th day of July, 1979, in Tallahassee, Florida.
JAMES E. BRADWELL, Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301
1/ Petitioner's attempt to re-open the record to include consideration of a post-hearing report is rejected based on the parties' stipulation during the hearing that the record closed upon receipt of the transcript.
Pursuant to Stuckey's of Eastman, Georgia v. Department of Transportation,
340 So.2d 119 (Fla 1st DCA 1976), the parties' proposed findings of fact, conclusions of law and recommendations were duly considered by me in preparation of this Recommended Order. However, to the extent that they are not contained herein, they are rejected.
Michael G. Williamson, Esquire Maguire, Voorhis and Wells, P.A.
Segundo J. Fernandez, Esquire Assistant General Counsel 2600 Blair Stone Road Tallahassee, Florida 32301
