STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

PENINSULAR FISHERIES, INC. )

AND DALIA DIAZ, )

)

Petitioners, )

)

vs. ) CASE NO. 81-298

) DEPARTMENT OF ENVIRONMENTAL ) REGULATION AND JOHN H. LAND ) BUILDERS, INC., )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to Notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, DONALD R. ALEXANDER, held a formal hearing in Tampa, Florida, on March 27, 1981.

APPEARANCES

For Petitioners: Banks B. Vest, Jr., Esquire

412 East Madison Street, Suite 817 Tampa, Florida 33602

For Respondent/ Edward I. Cutler, Esquire and Applicant: Steven L. Sparkman, Esquire John H. Land Post Office Box 3239 Builders, Inc. Tampa, Florida 33601

For Respondent: David M. Levin, Esquire Department of 2600 Blair Stone Road Environmental Tallahassee, Florida 32301 Regulation

By application dated September 9, 1980, Respondent/Applicant, John H. Land Builders, Inc., requested that Respondent, Department of Environmental Regulation, issue a permit/water quality certification to authorize Applicant to conduct dredge and fill activities in an approximate one acre area located in Section 10, Township 29 South, Range 19 East, in Hillsborough County, Florida.

On January 21, 1981, the Department issued its Intent to Issue the requested permit/water quality certification to Applicant with certain provisos and concurrently served a copy of said notice upon the adjacent landowners. On February 3, 1981, petitioners, Peninsular Fisheries, Inc. and Dana Diaz, requested a formal hearing pursuant to section 120.57(1), Florida Statutes, to contest the issuance of the permit. As grounds for objecting to the issuance of the permit, petitioners alleged: (1) there were existing water quality violations resulting from the disposal of battery casings and other materials in wetlands contiguous to a ditch allegedly connected to the dredge and fill area, and that based on these complaints, Applicant had not provided affirmative

reasonable assurances that the proposed project would not result in water quality violations, (2) reasonable assurance had not been provided that present violations would be corrected, (3) there was a failure to establish affirmative reasonable assurance that Penisular Fisheries, Inc.'s fish farming activities would not be subject to increased danger of flooding and from contaminants generated by residential development (4) discovery efforts in a pending injunction case in circuit court would make additional information pertaining to water quality and quantity available to DER to aid in evaluating the permit application, and (5) issuance of the requested permit/water quality certification would violate Rule 17-4.07(7), Florida Administrative Code, which prohibits issuance of a permit for an installation for which a notice of violation has been issued.

On February 9, 1981, the matter was forwarded to the Division of Administrative Hearings with a request that a Hearing Officer be assigned to conduct a hearing. By Notice dated March 4, 1981, the final hearing was scheduled for March 27, 1981, in Tampa, Florida.

On March 26, 1981, Petitioners filed a Motion for Continuance of the final hearing on the grounds that (1) a consent agreement concerning stormwater runoff from the project between the Department and Applicant was imminent and that additional time was required to review the agreement and determine the effect, if any, it might have upon the application (2) a notice of violation has been issued by Department for an area contiguous to the property in question and that Rule 17-4.07(7), Florida Administrative Code, proscribed the issuance of a permit when such a notice had been issued, (3) because a hearing might be requested by Petitioners on the consent agreement, a consolidated hearing at a later date on both the agreement and the application would be more appropriate, and (4) the instant case was reassigned to the undersigned Hearing Officer only three days prior to the final hearing and that there was insufficient opportunity for the Hearing Officer to familiarize himself with the case. A telephonic conference with all parties was held on March 26, 1981, and after considering argument of counsel, the Motion was denied.

At the final hearing, Petitioner called Clabe L. Polk, Rosanne Gutkin and Gerald Seaburn as its witnesses, and offered Petitioner's Exhibits A and B, which were received into evidence. Respondent DER called Rosanne Gutkin and Andrew Feinstein as its witnesses and offered DER Exhibits A-D, F and G, each of which was received into evidence. Respondent Land called John Oakley and Gary

M. Cumbley as its witnesses, and offered Land Exhibits 1-4, each of which was received into evidence.

Proposed findings of fact and conclusions of law were timely filed by the Respondent/Applicant and have been considered by the undersigned in the preparation of this Order. 1/ Findings of fact not included in the preparation of this Order were not considered relevant to the issue, were nor supported by competent and substantial evidence, or were considered immaterial to the results reached.

During the course of the hearing, the Petitioners proposed without objection to amend their petition to include the issue of whether the Department properly issued to Applicant on November 7, 1980, an exemption from the stormwater discharge licensing requirements under Rule 17-4.248(5), Florida Administrative Code, for Unit I of its proposed residential development. The amendment was accepted by the undersigned pursuant to Rule 28-5.202, Florida Administrative Code.

The issues to be resolved are (1) whether a permit/water quality certification should be issued to Applicant, John H. Land Builders, Inc., and

1. whether the Department properly exempted the stormwater discharge anticipated from the project proposed by Applicant from the licensing requirements of Rule 17-4.248, supra.

   
   

   Based upon all the evidence, the following facts are determined:

   
   

   FINDINGS OF FACT

   
   

   1. By application filed on September 9, 1980, Respondent/Applicant, John

      H. Land Builders, Inc., sought a permit from Respondent, Department of Environmental Regulation (DER), to conduct dredge and fill activities in an approximate one acre area located in the southeast corner of a proposed housing development in Section 10, Township 29 South, Range 19 East, in Hillsborough County, Florida. A copy of this permit application may be found as DER Composite Exhibit B. Specifically, Land sought to excavate 4,100 cubic yards of material (muck) and to backfill the area with 14,400 cubic yards of granular material from adjacent uplands to allow for development of a street and building lots in an unnamed wetland. A permit from DER is required because the project involves a wetland that is contiguous with a ditch that connects to the Palm River, all of which constitute waters of the State that are subject to dredge and fill permitting requirements. The plans have been reviewed by other state and local authorities in the Hillsborough County area, and no adverse comments have been received.

      
      

   2. After the installation is completed, the elevation of the land will be raised, and will permit five homesites to be built on the land as well as the construction of an access road to the property from an adjacent street. The installation in question is but a small part of a larger proposed housing development known as Timberlake Subdivision that will ultimately involve more than 300 homesites. However, no further dredge and fill activities under DER jurisdiction will be undertaken.

      
      

   3. The proposal of Respondent/Applicant was received by the Department and certain timely additional requests were made from the Department to the Applicant to provide information necessary to evaluate the request for permit. Applicant subsequently furnished the required information, and it may be found in DER Exhibit C.

      
      

   4. The Department performed a field inspection and review of the dredge and fill site, including the surrounding areas, to assess the impact of water quality caused by proposed dredging and filling activities in wetlands areas. It concluded that the Applicant had affirmatively provided reasonable assurance to the Department that the short-term and long-term effects of the activity would not result in violations of the water quality criteria, standards, requirements and provisions of Chapter 17-3, Florida Administrative Code. A copy of the permit application appraisal may be found in DER Exhibit A.

      
      

   5. On January 21, 1981, DER issued its Intent to Issue a dredge and fill/water quality certification with certain conditions therein, including the requirement that future development be dependent upon separate stormwater review by the Department (DER Exhibit D).

   6. On October 20, 1980, Applicant filed a Notice of Stormwater Discharge with the Department's Southwest District Office in Tampa (DER Composite Exhibits B & F). Thereafter, the Department conducted a field inspection and review of the proposed housing development and surrounding areas to determine whether the proposed stormwater discharge would have a significant impact on water quality. Based upon the results of that inspection, which concluded that the proposed discharge would not have a significant impact on the waters of this State, the Department issued Applicant a stormwater exemption on November 7, 1980.

      
      

   7. The project site is located in an unnamed wetlands area. It is weedy and has a dense cover of primrose willow (Ludwigia peruviana), willow (Salix caroliniana), cattail (Typha sp.), red maple (Ace rubrum) and is overgrown with grapes vines (Vitus rotendifolia). It lies just to the north of a series of fish farms owned by Petitioner, Penisular Fisheries, Inc. Other commercial industries and single family dwellings are found south of the proposed activities. To the west and northwest lie marshlands, two old borrow pits, and Interstate Highway 4.

      
      

   8. Water runoff from the dredge and fill area will flow to the storm drainage system in the proposed street, and from there to a designated retention pond. Because there will be minor contaminants in the runoff, the water will be retained for treatment for a period of five days, which exceeds the 100 hour retention period required by DER. After treatment, the runoff will flow into a well-defined county drainage ditch west of 58th Street, travel down the ditch which lies adjacent to the fish ponds, and then meander into the existing marshland. Water runoff from the remainder of the project (excluding the dredge and fill area) will drain into the two existing borrow pit lakes which lie close to Interstate Highway 4.

      
      

   9. The designated retention pond will be located west of the project and has a controlled spill-off elevation. It will provide sufficient treatment to and cleaning of the water to insure that no violation of water quality standards will occur. A stormwater system to be constructed by Applicant will actually reduce the volume of water runoff now occurring. Reasonable assurances have been given that the short-term and long-term effects of the proposed activity will not result in violations of the water quality criteria, standards, requirements and provisions of the Florida Administrative Code.

      
      

   10. Based upon Use location of the point of discharge of Land's proposed stormwater discharge, the volume and frequency of discharge for which the proposed facilities are designed, and the anticipated constituents of discharge, the proposal will not have a significant impact on the water quality of the waters of this State. Accordingly, the exemption from stormwater licensing requirements was properly issued by the Department.

       
       

   11. Water quality violations which were alleged to have existed in a ditch on property adjoining the properties of Land and Petitioners were the subject of a notice of violation issued to the owners of that property. However, no notice of violation was ever issued to Land. Further, the ditch is not a part of the installation proposed by Applicant for issuance of the dredge and fill permit.

       
       

   12. Petitioners' concern is that Applicant has not given reasonable assurance that water quality standards would not be violated by the stormwater discharge and that downstream waters might be contaminated by urban runoff from the project. In reaching that conclusion, Petitioners' expert relied on a review of certain materials submitted to him by Petitioner's counsel. He did not visit the project site, nor had he reviewed drainage plans or construction

       drawings for drainage improvements contemplated by the notice of stormwater discharge filed by Land.

       
       

       CONCLUSIONS OF LAW

       
       

   13. The Division of Administrative Hearings has jurisdiction over the subject matter and the parties thereto pursuant to Section 120.57(1) Florida Statutes (1979).

       
       

   14. The standards for the issuance or denial of Land's application for dredge and fill permit/water quality certification are found in Rules 17-4.07(1) and 17-4.28(3), Florida Administrative Code. The former rule provides in part that:

       
       

       1. A permit may be issued to the Applicant upon such conditions as the Department may direct, only if the applicant affirmatively provides the Department with reasonable assurance based on plans, test results and other information, that the construction, expansion, modification, operation, or activity of the installation will not discharge, emit, or cause pollution in contravention of Department standards, rules or regulations.

          
          

          Rule 17-4.28(3), supra, 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.

          
          

   15. The First District Court of Appeals has recently articulated the basic allocation of burdens and order of presentation of proof in a DER permit proceeding. See Florida Department of Transportation v. J.W.C. Company, Inc., So.2d No. 00-501 (Fla. 1st DCA op. filed 3/27/81) While the ultimate burden of persuasion lies with the Respondent/Applicant to affirmatively provide DER with "reasonable assurances that pollution standards will not be violated by the proposed facilities", once a prima facie case is established by Applicant, the burden then shifts to the Petitioner to go forward with evidence to prove the truth of the facts asserted in its petition. If the Petitioner has failed to present evidence, or to carry the burden of proof as to the controverted facts asserted, then the permit must be approved.

       
       

   16. Here the facts reveal that Land, as applicant, has given reasonable assurances, based upon plans and other information required and requested by the Department, that the long-term and short-term effects of the proposed dredge and fill activities will not result in a violation of the water quality criteria, standards, requirements and provisions of Chapter 17-3, Florida Administrative Code. The Petitioners having failed to controvert the evidence of Respondents, the application should be approved.

   17. The standards to be applied in determining the validity of the challenged stormwater exemption are found in Rule 17-4.248, Florida Administrative Code. Subsection (5)(a) requires that the Department receive a notice containing the location points of discharge to waters of the state, the volume and frequency of the discharge for which the installation is designed and the anticipated constituents of the discharge. Subsections (5)(b) and (c) provide that DER must require the applicant to obtain a stormwater license if the discharge would have a significant impact on water quality taking into account the designated uses of the receiving waters of the State. The Department's determination that the proposed stormwater discharge will not significantly impact water quality has been sufficiently supported, and its issuance of the stormwater exemption should be affirmed.

       
       

   18. Rule 17-4.07(7), Florida Administrative Code, has no application to the case at bar. Neither the requested dredge and fill permit/water quality certification nor the challenged stormwater exemption is an operation permit for an installation as to which a notice of violation has been issued.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that Respondent Department of Environmental Regulation grant

the requested dredge and fill permit/water quality certification to

Respondent/Applicant John H. Land Builders, Inc. It is further

RECOMMENDED that the Respondent Department of Environmental Regulation enter a final order confirming the stormwater exemption issued by the Department to Respondent/Applicant on November 7, 1980.

DONE and ENTERED this 27th day of April, 1981, in Tallahassee, Florida.

DONALD R. ALEXANDER

Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32301

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 27th day of April, 1981.

ENDNOTE

1/ At the conclusion of the hearing, the undersigned Hearing Officer directed that proposed findings of fact and conclusions of law be filed and in the hands of the Hearing Officer no later than April 10, 1981. This time was subsequently extended to and including April 16, 1981. Only the Respondent/Applicant filed within this time limitation.

COPIES FURNISHED:

Banks B. Vest, Jr., Esquire

412 East Madison Street, Suite 817 Tampa, Florida 33602

Edward I. Cutler, Esquire and Steven L. Sparkman, Esquire Post Office Box 3239

Tampa, Florida 33601

David M. Levin, Esquire 2600 Blair Stone Road Tallahassee, Florida 32301

Docket for Case No: 81-000298

Orders for Case No: 81-000298