STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JACK CRUICKSHANK, )

)

Petitioner, )

)

vs. ) CASE NO. 80-2253

) STATE OF FLORIDA, DEPARTMENT OF ) ENVIRONMENTAL REGULATION, )

)

Respondent. )

)

RECOMMENDED ORDER

This matter came on for hearing in Orlando, Florida, before the Division of Administrative Hearings and its duly designated Hearing Officer, R. T. Carpenter, on January 13, 1981. The parties were represented by:

APPEARANCES

For Petitioner: William W. Carpenter, Esquire

830 East Highway 434

Longwood, Florida 32750

For Respondent: Charles G. Stephens, Esquire

Department of Health and Rehabilitative Services

2600 Blair Stone Road Tallahassee, Florida 32301

PROCEDURAL BACKGROUND

This matter arose on the petition of Jack Cruickshank regarding Respondent's denial of his request for a fill permit. The issue is whether Petitioner has provided reasonable assurance that effects of the proposed activity will not result in violations of water quality criteria, standards, requirements and provisions of Chapter 17-3, Florida Administrative Code (F.A.C.)

The Petitioner submitted proposed findings of fact. To the extent these proposed findings have not been adopted or are inconsistent with the findings herein, they have been specifically rejected as irrelevant or not supported by the evidence.

FINDINGS OF FACT

1. Petitioner owns a rectangular plot approximately 300 feet (north to south) by 1,300 feet (east to west). The property is within the City of Longwood and is zoned light industrial. The land is undeveloped except for a laminated cabinet factory and warehouse owned by Petitioner.

2. The proposed development includes construction of a paved right-of-way sixty feet wide through the center of the parcel. Entry and exit would be from the east with a cul de sac on the west end. The property would be divided into twenty lots, each facing this street. Petitioner contemplates sale of these lots to light industrial users.

   
   

3. A tributary of Soldiers Creek which flows into Lake Jessup and ultimately the St. John's River, separates the eastern one third of the property from the remainder of the parcel. This stream is typically one to three feet deep, with very slow movement. Water in the stream bed becomes virtually stagnant during the dry season.

   
   

4. The on-site survey conducted by Respondent's environmental specialist established that the ordinary or mean height water line follows the 52 foot contour, creating a stream bed about 400 feet wide across Petitioner's property. The development proposal calls for filling most of this area, retaining a stream channel one hundred feet wide.

   
   

5. Petitioner intends to install four 38" x 60" oval culvert pipes at the stream crossing of the proposed roadway. To control runoff from rain showers, Petitioner plans to construct swells on each side of the roadway and drainage troughs and catch basins are intended to retain runoff pollution. However, during peak rainfall periods, these devices will not prevent direct discharge into the watercourse. Petitioner has not conducted any tests to determine the impact of his proposed project on water quality other than percolation tests associated with the use of septic tanks.

   
   

6. The stream is heavily forested with mature hardwood trees. The undergrowth includes buttonbush, royal fern, primrose willow and water tupelo. Clumps of pickerel weed are scattered throughout the stream. The stream bottom consists of one to two feet of leaf litter and accumulated organic muck over firm sand. Respondent's dip net sampling produced numerous least killifish, which are indicative of good water quality.

   
   

7. Forested streams and bayheads such as this are natural storage and treatment areas for upland runoff, and tend to reduce the peak runoff discharge to lakes and rivers from rainfall. This, in turn, reduces sedimentation rates and the resultant siltation of downstream waterbodies. The proposed project would eliminate approximately one acre of stream bottom and continuous submerged transitional zone lands.

   
   

8. Urban runoff can contain significant amounts of pollutants including nutrients, heavy metals, dissolved solids, organic wastes, and fecal bacteria. In industrial situations, such as that proposed here, concentrations of oils, greases, heavy metals, toxic chemicals, and phenolic compounds from tire wear, paving and use of other petroleum products are anticipated. The discharge of these contaminants would be harmful to the plant and animal life in Soldiers Creek and the subject tributary.

   
   

9. The proposed project would not only reduce existing vegetation which serves as a sediment trap and natural nutrient filter, but would create an impervious (paved) surface which would accelerate runoff and would, itself, be a source of pollution. Water quality would be further reduced by the introduction of fill material and the canalization of the stream, which would increase its rate of flow.

10. The Division of Administrative Hearings has jurisdiction over the subject matter and the parties to this proceeding under Section 120.57(1), Florida Statutes. The parties stipulated to Respondent's permitting authority over the proposed fill project. Specifically, Respondent has permitting jurisdiction below the 52 foot contour line which defines the stream bed. See Sections 17-4.02(17), 17-4.02(19) and 17-4.28, F.A.C.

    
    

11. Subsections 17-4.28(1) and 17-4.28(3) F.A.C., require Petitioner to establish reasonable assurance that the short term and long term effects of the filling activity will not result in violation of the water quality criteria, standard, requirement and provisions of Chapter 17-3, F.A.C.

    
    

12. Petitioner's stream, Soldiers Creek and Lake Jessup are surface waters within the Class III designation of Section 17-3.081, F.A.C. Sections 17-3.061 and 17-3.121, F.A.C., provide the applicable water quality standards and criteria which Petitioner must provide reasonable assurance of meeting. The standards and criteria limit the amount of various chemicals, nutrients, oils and greases which may be introduced as a result of the proposed activity.

    
    

13. The evidence adduced herein established that the proposed project would promote substantial changes in these surface waters, degrading their existing quality. These changes would occur through the introduction of oils, greases and other undesirable chemicals and compounds. Further, Petitioner has conducted no specific testing which would establish reasonable assurance that the water quality standards would be met.

    
    

14. Petitioner contends that denial of the permit would amount to inverse condemnation or unconstitutional taking of his property without just compensation. Such a determination is beyond scope of this administrative proceeding.

RECOMMENDATION

From the foregoing, it is

RECOMMENDED that the State of Florida Department of Environmental Regulation enter a final order denying the petition of Jack Cruickshank for a fill permit.

DONE AND ORDERED in Tallahassee, Leon County, Florida, this 10th day of February, 1981.

R. T. CARPENTER Hearing Officer

Division of Administrative Hearings Collins Building

Tallahassee, Florida 32301

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 10th day of February, 1981.

COPIES FURNISHED:

Charles G. Stephens, Esquire Department of Environmental Regulation Twin Towers Office Building

2600 Blair Stone Road Tallahassee, Florida 32301

William W. Carpenter, Esquire 830 East Highway 434

Longwood, Florida 32750

Docket for Case No: 80-002253

Orders for Case No: 80-002253