vs. ) CASE NO. 79-2194
Respondent. )
Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, William E. Williams, held a public hearing in this cause on May 14, 1980, in DeLand, Florida.
For Petitioner: C. Allen Watts, Esquire
For Respondent: Segundo J. Fernandez, Esquire
Petitioner, Hyman Robert Levitan ("Petitioner"), applied to the Department of Environmental Regulation ("Respondent") for a dredge and fill permit on June 27, 1979. Respondent denied the application for permit, and Petitioner requested a hearing pursuant to Section 120.57(1), Florida Statutes.
Thereafter, Respondent requested that a Hearing Officer from the Division of Administrative Hearings be assigned to conduct the final hearing in this cause. Final hearing was scheduled for May 14, 1980 by Amended Notice of Hearing dated April 2, 1980.
At the final hearing, Petitioner testified in his own behalf and called Gloria Blackwelder and Glenn M. Vause as his witnesses. Petitioner offered Petitioner's Exhibits 1 through 7 and 9 through 13 which were received into evidence. Respondent called Glenn M. Vause and James Morgan as its witnesses. Respondent offered Respondent's Exhibits 1 through 10, inclusive, each of which was received into evidence.
On June 27, 1979, Petitioner applied to the St. Johns River District Office of Respondent for a permit to conduct dredge and fill activities on his property on Johnson Lake near DeLeon Springs, Volusia County, Florida. On July
10, 1979, within thirty days of the filing of the permit application, Respondent requested additional information to complete the permit application, which information was received by Respondent on July 20, 1979.
In his permit application, Petitioner seeks to dredge approximately 833 cubic yards of fill material from the bottom of Johnson Lake and deposit that material landward on his property in order to provide waterfront access.
Johnson Lake is a small sinkhole lake, with a surface area of approximately 17 acres. The lake consists of two lobes connected by a marshy area traversable by boat. The north lobe of the lake, on which Petitioner's property is located, has a surface area of approximately 7 acres and an average depth of more than two feet throughout the year. The maximum depth of the north lobe of Johnson Lake exceeds thirty feet. Property abutting the shoreline of the north lobe is owned by more than one person.
The area which Petitioner proposes to dredge is a heavily vegetated submerged point of land extending from Petitioner's uplands into the waters of the lake. Petitioner proposes to increase the slope of his lake front by relocating materials from the lake bottom landward toward his property, thereby increasing water depth in the lake adjacent to his property by approximately one foot.
Petitioner's permit application contains no engineering or other detail demonstrating the manner by which turbidity associated with the project will be controlled either during or after the proposed dredge and fill activities are conducted. In addition, the application contains no data concerning the potential impact of the project on existing water quality in Johnson Lake. However, after receipt of the permit application, Respondent caused a field assessment of the project to be con- ducted. This field assessment revealed that the project site is dominated by a plant community consisting primarily of maidencane, bullrushes and rushes. Each of these species are found in the "submerged lands" vegetative index for fresh waters contained in Rule 17- 4.02(17), Florida Administrative Code.
Aquatic vegetation such as that found on Petitioner's property and in the adjoining waters of Johnson Lake aids in both the assimilation of nutrients and filtering of deleterious substances from the waters of the lake and from upland runoff. These types of vegetation in Johnson Lake also provide a habitat for wildlife. Among the fish species present in Johnson Lake are darters, whose presence is indicative of good water quality. Because darters are very oxygen sensitive, it is likely that dissolved oxygen levels in Johnson Lake are in excess of five milligrams per liter. These darters were collected only in marsh areas of the lake, and not in front of areas where the shoreline of Johnson Lake has been previously disturbed by dredging. The existence of good water quality in the lake is due at least in part to the cleansing function of this marsh vegetation which would he removed if the subject permit were granted.
Respondent has previously issued permits for dredge and fill activities to other property owners on the north lobe of Johnson Lake. In addition, several other instances of dredging by property owners have occurred on Johnson Lake, at least one of which resulted in Respondent's instituting an enforcement action to cause the affected area to be restored.
Approximately 30 percent of the shoreline of the north lobe of Johnson Lake had been disturbed in some fashion at the time of final hearing in this cause. If Petitioner's application is granted, the percentage of shoreline disturbed would increase to approximately 50 percent. Destruction of as much as
20 percent of the littoral zone of a water body may be expected to result in measurable adverse effects on water quality. This adverse effect has been linked to destruction of the nutrient removal capacity of aquatic vegetation. Removal of aquatic vegetation can also result in setting off an algal bloom cycle in the affected water body because of increased nutrient loadings. This algal bloom cycle could, in turn, result in lowering the dissolved oxygen content of the lake, thereby adversely affecting both plant and animal communities.
Petitioner has pointed out to the Hearing Officer the earlier case of McPhail v. State of Florida, Department of Environmental Regulation, DOAH Case No. 79-2174, in which a Hearing Officer from the Division of Administrative Hearings recommended the issuance of a dredge and fill permit to a neighbor of Petitioner on the north lobe of Johnson Lake. That recommendation was later adopted by Respondent by issuance of a final order. Petitioner suggests that his application is essentially similar to that of the Petitioner in McPhail, and should, therefore, be granted. However, there is no evidence of record in this proceeding, as there apparently was in McPhaiI, that establishes that no permanent adverse effects will result from the conduct of dredge and fill activities as presently proposed in Petitioner's permit application. In fact, evidence of record in this proceeding clearly establishes that removal of the quantity of aquatic vegetation in the manner proposed by Petitioner could reasonably be expected to have a measurable adverse impact on water quality in Johnson Lake.
Further, it is clear that the proposed dredging activity could reasonably be expected to result in short-term turbidity of the water in Johnson Lake, and petitioner in his application has neither attempted to assess the potential impact of turbidity, nor has he proposed any safeguards to limit the effect of that turbidity.
The evidence of record in this proceeding clearly establishes that the dredge and fill activity, if conducted as presently proposed, could reasonably be expected to result in lowering the dissolved oxygen content of the water in Johnson Lake, a potential overloading of nutrients in that water body, and
short-term and long-term increases in turbidity. It is difficult to address the question of the extent of the potential impact of the proposed activity because nothing submitted by Petitioner either in his permit application or at final hearing in this cause directly addresses this issue in a competent fashion.
It should be noted here that the record herein indicates that Petitioner might obtain the desired waterfront access which he seeks by redesigning his project to reduce its size, or, alternatively, by incorporating in his proposal a dock-type structure which would not require such extensive alterations in the littoral zone of Johnson Take.
Both Petitioner and Respondent have submitted proposed findings of fact for consideration by the Hearing Officer in this proceeding. To the extent that those proposed findings of fact have not been adopted in this Recommended Order, they have been rejected as either not having been supported by the evidence, or as being irrelevant to the issues in this proceeding.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties to and the subject matter of this action. Section 120.57(1) and 120.60, Florida Statutes.
Rule 17-4.28(3), Florida Administrative Code, provides that:
The applicant for a degree [sic] and/or fill permit or a federal certification for a dredging and/or filling activity shall affirmatively provide reasonable assurance to [Respondent] 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. The [Res- pondent] shall, upon denying any application, furnish the applicant an official statement specifying with particu1arity the reasons for denial, including a precise statement of those violations of water quality criteria, standards, requirements, and provisions
it expects to be caused by such activity and the manner in which such effects are expected to be caused.
Rule 17-1.59, Florida Administrative Code, provides in part that:
. . . In license and variance proceedings before [Respondent], the person requesting a hearing, variance, license, or other relief, shall have the burden of proof to establish, by a preponderance of tide evi- dence, entitlement to the requested license, variance, or other relief.
Rule 28-6.08, Florida Administrative Code, provides that, upon denial of a license:
. . . Any hearing on the denial of a license shall be conducted in accordance with Section 120.57, and unless otherwise provided by law the applicant shall have the burden of establishing entitlement to the license.
Rule 17-4.28(2), Florida Administrative Code, provides that:
Those dredging 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 [Respondents prior to being undertaken:
* * * * *
(d) natural lakes except those owned entirely by one person; and except for
lakes that become dry each year and are without standing water together with lakes of no more than ten (10) acres of water area at maximum average depth of two (2) feet existing throughout the year;
* * * * *
The [Respondent] recognizes that the natural border of certain water bodies listed in Section 17-4.28(2) may be difficult to establish because of seasonal fluctuations in water levels and other characteristics unique to a given terrain. The intent of tile vegetation indices in subsection
17-4.02(17) and (19) is to guide in the establishment of the border of the water bodies listed in Section 17-4.28(2). . . .
Johnson Lake is within Respondent's dredge and fill permitting jurisdiction in that the two lobes of that lake consist of approximately 17 acres and are owned by more than one person. In addition, the north lobe of Johnson Lake, which consists of approximately seven acres, has an average depth of greater than two feet existing throughout the year. See, McPhail v. State of Florida, Department of Environmental Regulation, DOAH Case No. 79-2174.
The area in which Petitioner seeks permission to conduct the proposed activity is dominated by a plant community, namely maidencane, listed in the vegetative index contained in Section 17-4.02(17), Florida Administrative code, and the proposed construction activity will therefore be conducted in "waters of the State" as defined in Sections 403.031 and 403.817, Florida Statutes.
Petitioner has failed to affirmatively provide reasonable assurance to Respondent that the short-term and long-term effects of the proposed dredge and fill activity will not result in violations of water quality criteria, standards, requirements and provisions of Chapter 17-3, Florida Administrative Code, and the requested permit should, therefore, be denied.
That a final order be entered by the State of Florida, Department of Environmental Regulation denying the requested dredge and fill permit.
DONE and ENTERED this 17th day of July, 1980, in Tallahassee, Florida.
WILLIAM E. WILLIAMS
Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301
C. Allen Watts, Esquire Post Office Box 3130 DeLand, Florida 32720
Segundo J. Fernandez, Esquire Assistant General Counsel Department of Environmental
