STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DAVID M. ANTONIAK, )

)

Petitioner, )

)

vs. ) CASE NO. 79-2239

) DEPARTMENT OF ENVIRONMENTAL ) REGULATION, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, an administrative hearing was held before Diane D. Tremor, Hearing Officer with the Division of Administrative Hearings, in Courtroom A of the Orange County Courthouse, Orlando, Florida, on September 17, 1980. The issue for determination at the hearing was whether the petitioner is entitled to an after-the-fact permit for the construction of a cypress log retaining wall and the placement of fill material waterward of the natural shoreline of Lake Lancaster.

APPEARANCES

For Petitioner: William A. Harmening

Stanley, Harmening & Lovett Post Office Box 1706 Orlando, Florida 32802

For Respondent: Charles G. Stephens

Assistant General Counsel Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32301

FINDINGS OF FACT

Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found:

1. Petitioner David M. Antoniak is the owner of property located at 1211 Hardman Drive in Orlando, Florida. The property fronts on a cove of Lake Lancaster and is adjacent to a stormwater drainage pipe operated by Orange County. When petitioner purchased the property in approximately February of 1978, the general waterfront around his property, as described by petitioner and other neighboring landowners, was filled with weeds which were decaying, trash and other debris, bad odors and bugs. Petitioner attempted to clean up the waterfront area, but was unsuccessful.

   
   

2. In August of 1978, petitioner undertook the project which is presently in dispute. He removed approximately two truckloads of muck, weeds and debris

   from the water and the water's edge, placed a cypress log retaining wall between his property and the waters of Lake Lancaster, placed approximately one truckload of beach sand between the wall and the water, deposited an undetermined amount of fill material landward of the wall and put sod on the soil landward of the wall. Petitioner constructed the cypress log retaining wall in order to level out his lot, prevent runoff to the lake and to separate the dirt from the sand. He continues to fertilize his lawn and to spray it for bugs. The only portion of the retaining wall and property waterward of the natural ordinary high water line of Lake Lancaster is an area approximating eight by four feet.

   
   

3. In March of 1979, petitioner applied to the DER for after-the-fact approval of construction of the retaining wall waterward of the ordinary high water line of the lake and the filling. After a field evaluation, DER gave notice of its intent to deny a permit.

   
   

4. Lake Lancaster is a Class III body of water. The lake receives outfall from approximately twelve stormwater drainage pipes, one of which is located adjacent to petitioner's property. Aquatic plants and weeds are especially beneficial near such outfalls because they serve to assimilate and eliminate nutrients, stabilize sediments, and filter out suspended materials. Such vegetation also provides a habitat for fish. Although the area in dispute is small, removal of the aquatic vegetation significantly degrades the water quality of Lake Lancaster because of the area's location in a cove and the adjacent stormwater drainage pipe.

   
   

5. The placement of the cypress log retaining wall will cause hydrological changes in the nature of increased turbidity due to wave action. Vertical walls may also lead to erosion. While the seawall will serve to reduce the initial flush of run off (of grass clippings, for example), fertilizers and bug sprays used on adjacent upland property will still percolate into the soil and eventually run off to the lake. The backfilling in the 8 by 4 foot space waterward of the ordinary high water level reduces the size of the lake and could possibly relate to flooding problems.

   
   

   CONCLUSIONS OF LAW

   
   

6. A property owner desirous of constructing a stationary installation which may reasonably be expected to be a source of pollution of the waters of the State must obtain a permit from the Department of Environmental Regulation. Florida Statutes, Section 403.087. In order to be entitled to such a permit, the applicant must provide the Department with reasonable assurances that the project will not violate water quality standards or other rules or regulation.

   
   

7. The petitioner in this proceeding totally failed to demonstrate that the cypress log retaining wall, the removal of aquatic vegetation and the placement of sand and backfill material in the waters of the State would not result in short-term and long-term violations of water quality standards. While the aesthetic appearance of the waterfront area abutting petitioner's property may have been improved, the quality of water has been degraded. The project has altered the natural contours of Lake Lancaster. Vegetation important in the assimilation of nutrients and as a habitat for aquatic organisms and juvenile fish has been eliminated. Increases in turbidity and the nutrient levels of the lake constitute a long-term negative impact resulting from the project. The filling of the nearshore lake bottom reduces the flood storage capacity of the lake and could accentuate flooding problems during periods of high water. In conclusion, the petitioner has failed to demonstrate that the project will not

cause pollution in violation of State standards and he is therefore not entitled to the permit for which he has applied.

RECOMMENDATION

Based upon the findings of fact and conclusions of law recited herein, it is recommended that the petitioner's application for a permit be DENIED.

DONE AND ORDERED in Tallahassee, Leon County, Florida, this 9th day of October, 1980.

DIANE D. TREMOR

Hearing Officer

Division of Administrative Hearings

101 Collins Building Tallahassee, Florida 32301 (904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 9th day of October, 1980.

COPIES FURNISHED:

William A. Harmening

Stanley, Harmening and Lovett Post Office Box 1706

Orlando, Florida 32802

Charles G. Stephens Assistant General Counsel Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32301

David M. Antoniak 1121 Hardman Drive

Orlando, Florida 32806

Jake Varn, Secretary Department of Environmental

Regulation

2600 Blair Stone Road Tallahassee, Florida 32301

Docket for Case No: 79-002239

Orders for Case No: 79-002239