THOMAS G. ALLDERDICE, )
vs. ) CASE NO. 80-272
Respondent. )
A hearing was held in the above captioned matter, after due notice, on June 13, 1980, at Jacksonville, Florida, before Thomas C. Oldham, Hearing Officer.
For Petitioner: Thomas G. Allderdice
253 and 403, Florida Statutes, should be approved.
Petitioner Thomas G. Allderdice appeared at the hearing without counsel and was advised as to his rights in administrative proceedings. He acknowledged that he understood such rights and elected to represent himself in this matter.
Petitioner Thomas G. Allderdice owns approximately eleven acres of land which is located between Julington Creek Road and Julington Creek in Jacksonville, Florida. On April 2, 1979, he filed an application with Respondent Department of Environmental Regulation's St. Johns River Subdistrict Office at Gainesville for a permit to fill approximately one quarter acre at the southeast corner along the creek for a homesite. (Testimony of Petitioner, Petitioner's Exhibits 2, 7-8)
Petitioner intends to fill the site to a height of approximately three feet, utilizing clean sand obtained from a commercial sand company. His application originally reflected an intent to surround the filled area with
logs, but after being advised by John Gray, City of Jacksonville Engineering Office, that he would not need a city permit if he used riprap instead of logs along the shoreline, he modified his application and now intends to use masonry rubble riprap for approximately 120 feet along the bank which will extend some three to four feet into the water. The sketch attached to Petitioner's application describes the riprap as a "proposed silt barrier," but indicates that it will be placed at present ground level. (Testimony of Petitioner, Petitioner's Exhibit 8)
On April 4, 1979, Respondent notified Petitioner that the application was incomplete in several respects, including the necessity of obtaining evidence as to local approval of the project. Subsequently, on August 28, and December 10, Petitioner was advised by letters from the St. Johns River Subdistrict that his application was incomplete in that respect. Finally, on January 25, 1980, the subdistrict manager issued a Notice of Intent to Deny the application pursuant to Chapters 253 and 403, Florida Statutes, and Public Law 92-500, for (a) failure to respond to the request for additional information,
(b) potential water quality degradation by replacing an aquatic ecosystem with a residential homesite, and (c) various reasons whereby the project would be adverse to the public interest, as specified in Chapter 253, Florida Statutes. Petitioner thereafter requested a hearing in the matter. (Testimony of Rector, Scott, Respondent's Exhibits 2, 4-5)
The land in question is located on the north side of Julington Creek. Julington Creek is a typical fresh water tributary of the St. Johns River. Both sides of the creek have been moderately developed for residential use. The site in question may be described as a flood plain forest in the nature of a swamp that is inundated periodically during periods of high waters. Various small sloughs along the irregular shoreline extend into the property for several feet. The forest canopy is dominated by ash, cypress, blackgum and and maple with Florida elm, sweetgum and laurel oak growing on elevated hummocks. Throughout the region, the sparse ground cover includes iris, royal fern, lizard's tail, wild taro, buttonbush, and young cabbage palm. The littoral areas waterward of the proposed fill site are dominated by spatterdock, alligator weed and cattails. The area near the shore contains tupelo, cypress, and ash. These species which are associated with hardwood swamps fall within those listed in Rule 17-4.02(17)and (19), Florida Administrative Code, which constitute the dominant plant community of "submerged lands" and the transitional zone of a submerged land. Although Petitioner established that on two occasions in April 1980 during high tides, the land was not submerged, the area was flooded during a visit on September 17, 1979, by Respondent's subdistrict dredge and fill permit supervisor. At that time, the high tide was slightly over one foot above normal. On another occasion, a biologist for the Florida Game and Fresh Water Fish Commission observed that the site was inundated to a degree of approximately 20 percent. (Testimony of Petitioner, McCormick, Barber, Scott, Cox, Petitioner's Exhibit 3, 4-6, Respondent's Exhibits 1, 6)
Julington Creek is classified as a Class III body of water. The swamp wetlands of the site serve as feeding, nesting, nursery, and refuge habitat for a variety of fish during inundation. The forest area contributes to fishery productivity by supplying a natural source of organic matter to the aquatic food web and serves to protect water quality from degradation by filtering sediments, nutrients, and other pollutants from upland runoff. The placement of fill at the proposed site will result in the loss of a high quality habitat of valued fish and wildlife resources which is a natural water quality treatment system. (Testimony of Barber, Scott, Cox, Respondent's Exhibits 1, 6)
Species of wildlife likely to utilize the site include prothonotary warbler, parula warbler, Carolina wren, great crested flycatcher, tufted titmouse, pileated woodpecker, barred owl, marsh rabbit, raccoon, gray squirrel, flying squirrel and various small mammals, reptiles and amphibians. Mosquito fish were observed in the area of the project site during the September 1979 visit to the property by Respondent's permitting supervisor. (Testimony of Scott, Cox, Respondent's Exhibit 6)
CONCLUSIONS OF LAW
Section 253.124, Florida Statutes, provides that a person wishing to add to or extend existing lands bordering on or in the navigable waters of the state must make application in writing to the applicable board of county commissioners or governing body of a municipality for permit authorizing such person to engage in such construction. It further provides that if the local authority finds the proposed work is not violative of any law, and will not harmfully obstruct or alter the natural flow of navigable waters within the area, create harmful or increased erosion, shoaling of channels, or stagnant areas of water, or do material injury or monetary damage to adjoining land, the permit shall be granted subject to the approval of the Board of Trustees of the Internal Improvement Trust Fund. (Duties of Trustees in this respect transferred to Respondent by Chapter 75-22, 10, 15, Laws of Florida.) Subsection 253.124(2), provides additionally as follows:
. . .Provided, however, that prior to the issuance of such permit, the board of county commissioners or other authorized body shall determine whether the granting of such permit and the construction to be done pursuant thereto would interfere with the conservation of fish, marine and wildlife or other natural resources to such an extent as to be contrary to the public interest, and whether the destruction of oyster beds, clam beds, or marine productivity, including, but not limited to, destruction of natural marine habitats, grass flats suitable as nursery or feeding grounds for marine life, including established marine soil suitable for producing plant growth of a type useful as a nursery or feeding grounds for marine life, will result therefrom to such an extent as to be contrary to the public interest. The board shall also consider any other factors affecting the public interests.
Respondent's Rule 17-4.29 implements Chapter 253 and establishes criteria for the requirement of a permit to fill at or below the line of mean high water or ordinary high water in, on, or over the navigable waters of the state. Rule 17-4.29(1)(a) provides that filling to create riprap or other type, seawalling is within the scope of the permitting requirement. Paragraph (4) of the rule provides that requirements specified in Section 17-4.28(11) apply.
That rule provision dealing with water quality indredging and filling activities establishes procedural requirements which authorize Respondent to deny a permit application if the applicant, after receiving timely notice, fails to supply additional information within a reasonable period of time, including submission of evidence of written approval of the proposed activity by the governing body
of the municipality, and the submission of a competent survey establishing mean high water or ordinary high water lines for purposes of determining the boundary of navigable waters.
Rule 17-4.29(6) provides that Respondent shall not issue a permit unless the biological survey, together with information provided by the applicant, affirmatively shows that the proposed activity will not interfere with the conservation of marine and wildlife or other natural resources, to such an extent as to be contrary to the public interest, and will not result in the destruction of oyster beds, clam beds, or marine productivity, including, but not limited to, destruction of natural marine habitats, grass flats suitable as nursery or feeding grounds for marine life, and established marine soil suitable for producing plant growth of a type useful as nursery or feeding grounds for marine life or natural shoreline processes to such an extent as to be contrary to the public interest.
Respondent's Notice of Intent to Deny the permit set forth all of the Section 253.124 considerations as grounds for such proposed action. Certain of these stated grounds are not in issue in this proceeding, such as injury to adjoining land, destruction of oyster and clam beds, shoaling of channels, and alteration of the natural flow of navigable waters. Although the line of mean high water was not precisely established at the hearing, the evidence is sufficient to show that the placement of rip rap in the water for several feet at the irregular bank will constitute the type of filling identified in Rule 17-
4.29 which requires a Chapter 253 permit after local approval is obtained. Respondent was justified in denying the permit for the sole reason that Petitioner did not submit evidence of local written approval, despite several requests therefor. Petitioner's hearsay testimony that he was informed by a municipal official that such approval was not required with the use of riprap is insufficient to overcome the statutory and regulatory requirements. Further, the evidence establishes that the proposed filling activity will definitely interfere with the conservation of fish and wildlife and other natural resources. The area in question supports a natural habitat suitable as a nursery or feeding ground for fish and wildlife, and contributes to productivity by providing organic matter to the aquatic food system. It is true that Petitioner desires to fill only a small area, but Respondent views the steady encroachment upon such vegetated areas as a threat to the environment. It is considered that the term "contrary to the public interest" is broad enough to envision its application in cases involving elimination of even a small amount of natural resources that nevertheless play a role in the continuity of plant and animal life. See Albrecht v. Dept. of Environ. Regulation, 353 So.2d 883 (Fla. 1st DCA 1977) It is therefore concluded that Petitioner's project would be contrary to the public interest and, in consonance with the legislative intent, the application should be denied under Chapter 253, Florida Statutes.
Chapter 403 does not specifically make mention of filling land with respect to pollution or water quality standards. However, Rule 17-4.28 requires all filling activities conducted in or connecting to waters of the state to comply with chapter 17-3, F.A.C., which spells out water quality standards for the various classifications of waters. Paragraph (3) of Rule 17-4.28 requires an applicant for a fill permit or federal certification to 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." That paragraph also requires Respondent upon denying any application to furnish the applicant official statements specifying with particularity the reasons for denial. The rule includes "streams" as a water
category under permitting jurisdiction, including the submerged lands of such waters. Submerged lands are identified under the rule as those areas which are customarily submerged and exchange waters with a recognizable water body as described in the rule. The rule further provides that the vegetation indices defining "submerged lands" are presumed to accurately delineate such lands.
These indices are found in Rule 17-4.02(17), and the listing includes a number of the species found on Petitioner's proposed site. Accordingly, it is considered that Respondent has permitting jurisdiction under Chapter 403. In its Notice of Intent to deny the permit, Respondent stated that a reason for denial was that development of the proposed fill area would result in water quality degradation by replacing the aquatic ecosystem with a residential homesite which can be expected to contribute a wide range of pollutants. The evidence shows that Petitioner intends to vegetate the filled area and contain the fill around the perimeter of the area. Outside of short term turbidity which may be caused by the placement of fill and riprap, and the reduction in filtering capacity by the elimination of the wetland vegetation, there is no indication that the project will reduce the water quality of Julington Creek to any measurable extent. It is concluded that Petitioner has provided reasonable assurances that filling will not result in violations of water quality or standards.
Petitioner's brief has been fully considered. He contends that riprap is defined as a "structure" under Rule 17-4.29(3)(c) and therefore does not constitute filling. That portion of the rule merely delineates those activities which are considered "short-form projects," and the activity therein described is new riprap revetments not exceeding 400 linear feet of shoreline. In addition, Petitioner cites Rule 17-4.04(10)(h) dealing with exemption of restored seawalls. Neither rule provision is applicable here.
At the hearing, Petitioner claimed that denial of his application would constitute an unconstitutional taking of his property without just compensation, and cited Estuary Properties, Inc. v. Askew, et al., 381 So.2d 1126 (Fla. 1st DCA 1979). Such a determination is beyond the scope of this administrative proceeding.
That Petitioner's application for a permit under Chapter 253, Florida Statutes, be denied.
DONE and ENTERED this 11 day of July, 1980, in Tallahassee, Florida.
THOMAS C. OLDHAM
Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301
Thomas G. Allderdice 12816 Aladdin Road Jacksonville, Florida
