STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARING
DWYNAL AND IONA PETTENGILL, )
)
Petitioner, )
)
vs. ) CASE NO. 82-294
) STATE OF FLORIDA, DEPARTMENT OF ) ENVIRONMENTAL REGULATIONS and ) GEORGE COPELAN, )
)
Respondent. )
)
RECOMMENDED ORDER
This matter came on for hearing in Tallahassee, Florida, before the Division of Administrative Hearings by its duly designated Hearing Officer, Robert T. Benton II, on May 7, 1982. The parties were represented by counsel:
For Petitioner: Randall E. Denker, Esquire
103 North Gadsden Street Tallahassee, Florida 32301
For Respondent: Gordon D. Cherr, Esquire
Department of Environment Regulation 2600 Blair Stone Road
Tallahassee, Florida 32301
For Respondent: James Webb, Esquire
Post Office Box 385 Destin, Florida 32541
This case presents the question whether the Department of Environmental Regulation (DER) should grant George Copelan an after-the-fact permit for a causeway across Lake Tresca in Walton County or deny his application and order him to restore the area to the status quo ante.
FINDINGS OF FACT
Twelve-acre Lake Tresca lies at an elevation of approximately 8 feet on the northern edge of sand dunes that stretch some 250 yards south to the Gulf of Mexico in Walton County, Florida, just east of Eastern Lake.
According to one of petitioners' witnesses, this group of freshwater lakes in a dune system may be unique. Lake Tresca is a source of freshwater for migrating birds, at the gulf's edge. White, great blue, and Louisiana herons feed in the lake's shallows. Purple martins are present in numbers. The eastern lobe of Lake Tresca is in excellent place for birds to feed and nest. The lake has a balanced fish population. Game fish as big as the ten-pound bass spotted by Douglas B. Bailey of the Florida Game and Freshwater Fish Commission
have smaller fish on which to feed, including gambusia and other minnows that feed, in turn, on mosquito larvae.
Lake Tresca is oligotrophic. There are no aquatic weeds, but there are fragrant water lilies, bladder wort, yellow-eyed grass, and other plant species valuable to wildlife. Most of the lake bottom is bare of vegetation, but the shallow, littoral portions support various plants, including significant colonies of rooted macrophytes, and furnish a suitable habitat for bedding fish. This vegetation removes some nutrients, makes others more usable, filters runoff from the surrounding yards, and stabilizes the shoreline. Bacteria and algae, primary constituents of the lake's "food web," also flourish in Lake Tresca.
A shallow area of Lake Tresca stretches across part of Mr. Copelan's half-acre lot onto the Pettengills' lot. The application for permit uses this diagram to represent the configuration: *
NOTE: A map of the pond is on the Recommended Order on file with DOAH and is not available in this ACCESS document.
Lake Tresca
Copelan Property
Pettengill Property
Petitioners' Exhibit No. 9. (Legend supplied.)
The Pettengills have built a house on their lot for occasional, seasonal use and with a view toward his retirement. Their septic tank is about 80 feet from the lake. The house was built to take advantage of the prevailing southwesterlies and has a porch facing Lake Tresca and the causeway. The house has no air conditioning. Except for the causeway, Mr. Copelan's lot is unimproved. There are about 14 other riparian owners many of whom have built houses and put in septic tanks.
After discussions between Mr. Copelan and Mr. Pettengill about an easement across the Pettengill property, to provide access overland to the Copelan property, had faltered, Mr. Copelan indicated that he might place fill dirt across the lake so as to block the Pettengills' access to the main body of the lake and to create a roadbed for travel across the lake to and from his lot. As a result, on April 20, 1980, Mr. Pettengill wrote Mr. Copelan a letter in which he stated:
Any dredging, filling or other manmade changes may be accomplished only if proper permits are obtained in advance for them.
I have taken the liberty of attaching copies of relevant sections of Florida Statutes
and the Florida Administrative Code regarding the required procedures for these activities. Petitioners' Exhibit No. 8.
Because, as he testified, Mr. Copelan had no faith in Mr. Pettengill's legal expertise, Mr. Copelan asked Marge Crawford, the real estate agent from whom he had purchased the land-locked lot, to inquire as to permits.
At Ms. Crawford's instance, she and Curtis Larry Taylor, an environmental specialist employed by DER in Panama City, visited Lake Tresca on
June 16, 1980. In a contemporaneous memorandum, Mr. Taylor recorded his impression that a DER permit "under the authority of Chapter 403 F.S. Section 17-4.28(2)(d) [Florida Administrative Code," DER's Exhibit No. 1, would be necessary for construction of the causeway Mr. Copelan had in mind. He furnished Ms. Crawford an application form to forward to Mr. Copelan. On June 19, 1980, Ms. Crawford wrote Mr. Copelan:
I met with Mr. Taylor, of the Department of Natural Resources, Dredging and Fill Department and inspected the site at
which you would like to put in a drive way.
Mr. Taylor said he saw little inpact [sic] on the invironment [sic] and would recom- mend a permit be given. This would take 6 to 8 weeks with out any protests. The DNR will contact property owners around that portion of the lake. If there is a protest there will be a delay'. I think you can expect a protest from at least two owners.
Fill out the application as soon as possible and mail it to the location indicated on the form. If I can be of help with he applica- tion let me know.
I asked Mr. Taylor what would happen if you just went ahead and fill[ed] in that portion of the lake. He said nothing unless some- one files a complaint and then it could be costly, attorney fees.
I also got another price on a road in for the long way, $8/per foot. Joint Exhibit No. 7.
Mr. Copelan received and read the letters from Mr. Pettengill and Ms. Crawford, and read highlighted portions of the dredge and fill rules Mr. Pettengill sent him.
In early August, without having applied for a permit, Mr. Copelan contracted with James A. Madden for the construction of a causeway across the eastern lobe of Lake Tresca. Work began in early August of 1980 and continued for four working days, a weekend intervening. Mr. Madden and his son used dump trucks and a bulldozer to haul sand from a borrow pit Mr. Madden has leased and to build a causeway 162 feet long with a top surface approximately 12 feet wide. About midway they placed a culvert with a 12-inch diameter to join Lake Tresca to the pool on the Pettengills' property severed by the causeway from the rest of the lake. On either side of the causeway, waiter lily and bladder wort are the predominant plant species.
On August 11, 1980, Mr. Pettengill told DER's Mr. Taylor that work on the causeway had begun. The following day Mr. Taylor visited the site, and found yellow sand fill about 18 to 24 inches deep covering an area approximately
15 feet by 45 feet. Joint Exhibit No. 8. He found no telephone number listed for George Copelan but telephoned Marge Crawford on August 12 or 13, 1980, to ask her to tell Mr. Copelan to stop work. Joint Exhibit No. 8.
On August 19, 1980, DER's Northwest District Enforcement Officer, George E. Hoffman, Jr., wrote Mr. Copelan advising him "to cease and desist from any further unauthorized filling." Joint Exhibit No. 5. By the time this letter reached Mr. Copelan, the causeway had been completed. On October 6, 1980, Mr. Copelan wrote Mr. Hoffman saying that he owned the land under the road and in general to the effect that he thought he was within his rights. Joint Exhibit No. 4.
Mr. Hoffman responded with a letter to Mr. Copelan on December 23, 1980, in which Mr. Hoffman "requested that [Copelan] voluntarily agree to remove the fill and restore the area to its original contour. Joint Exhibit No. 6. This letter stated that, "Otherwise, the Department will have no alternative but to initiate a formal administrative enforcement proceeding . . . seeking the restoration." Joint Exhibit No. 6.
On February 27, 1981, DER filed its notice of violation, No. DF-010- 81-NW, finding that the filling accomplished before August 12, 1980, had been accomplished without a permit, and that it "will have a detrimental [e]ffect on the water quality and may be potentially harmful . . . to the aquatic life of the lake" and that it had "created pollution violating Section 403.161(1)(a), Florida Statutes, and the rules of the Department." Joint Exhibit No. 1. Orders for corrective action contained in the same document proposed to require Mr. Copelan to reimburse DER for its expenses "in tracing, controlling and abating the source of pollution," to "cease aid desist from further unauthorized filling," and to remove the fill and restore the area to its original contours (even though by this time the causeway had been completed). Joint Exhibit No. 1.
DER inspected on March 2, 1981, and learned that the causeway had been completed. Thereafter, the parties agreed to a consent order dated May 5, 1981, which provided, in part:
Within thirty (30) days of the effective date of this Order, the Respon- dent shall submit an after-the-fact permit application for the construction and/or filling project described in this Order [the causeway]
In the event the application is determined to be incomplete, the Respondent shall provide the requested additional information within a fifteen (15) day period.
* * *
In the event the application is denied, the Respondent agrees to remove the fill material and restore the area to its preproject contours within forty-five (45) days of the receipt of final agency action.
Respondent does not waive his right
to claim that the aforementioned fill project is exempt from the Department's permitting requirements and that this defense may be asserted by the Respondent in any future pleadings of proceedings.
The Department, for and in consid- eration of the complete and timely perfor-
mance by the Respondent of the obligations contained in this Consent Order, hereby agrees to waive its right to seek the judi- cial imposition of damages or civil penalties or to seek criminal penalties for the alleged violations outlined in this Consent Order.
* * *
9. This Consent Order shall be a final agency action of the Department and may be enforced pursuant to Sections 120.69 and 403.121, Florida Statutes. The Respondent hereby waives any right to a hearing or administrative or judicial review of the provisions of this Consent Order provided however that the Respondent does not waive the right to assert defenses available pur- suant to Section 120.69(5), Florida Statutes, should the Department seek judicial enforce- ment of the Consent Order. The Respondent's failure to comply with the terms of this Consent Order shall constitute a violation
of Section 403.161, Florida Statutes. Joint Exhibit No. 2.
In accordance with the consent order, Mr. Copelan filed an application for an after-the-fact permit, which DER received on June 8, 1981. Petitioners' Exhibit No. 9. At DER's request, on August 17, 1981, James R. Webb, Esquire, counsel for Mr. Copelan, sent DER copies of a survey including a plan view and a cross- sectional view of the causeway, Applicant's Exhibit No. 2; Petitioners' Exhibit No. 10, and, on November 2, 1981, copies of a survey showing the approximate ordinary high water line. Applicant's Exhibit No. 2. Neither the application nor the supplemental information was prepared by a professional engineer.
DER determined the application to be complete on November 3, 1981, and, on January 7, 1982, issued its intent to issue a permit to
partially after-the-fact construct a road- way approximately 80' long by 20' wide by 3' high, in accordance with the attached drawing labelled "Fill Road" Sheet 1, Revi-
sion No. 1 by R.E.P. 13 August, 1981; located
in Section 19, Township 3 South, Range 18 West. Joint Exhibit No. 10.
According to the case file, DER received the Pettengills' administrative petition for section 120.57 hearing on January 21, 1982; but a permit was nevertheless inadvertently mailed to Mr. Copelan on January 29, 1982. On receipt of the permit, Mr. Copelan caused oyster shells to be placed on the roadbed and sod to be planted along the sides of the causeway. The permit was followed by a letter from DER instructing Mr. Copelan to disregard it.
APPLICATION INACCURATE
In describing the causeway, the application gives its dimensions as "approximately 10 feet wide by 30 feet in length." Petitioners' Exhibit No. 9. In fact, the top surface of the (causeway is 12 feet wide and the causeway is broader at the base. It is 20 feet across at one point, according to
Petitioners' Exhibit No. 10. From a surveyor's drawing subsequently furnished at DER.'s request, Petitioners' Exhibit No. 10, DER inferred that the road was
80 feet long, even though this drawing was not accompanied by an amendment to the written description of the project. In fact, the causeway is 162 feet long, and not 30 or 80 feet long. The application states that the culvert has a diameter of 19 inches. In fact, the culvert had a diameter of 12 inches, so that the application overstates the area of the cross-section by more than 150 percent.
Under the "Remarks" section of Mr. Copelan's application appears the following:
Applicant was under the belief that no permit was necessary at the time of commencement and completion of the project. Petitioners' Exhibit No. 9.
In fact, Mr. Copelan had been informed twice in writing that he needed a permit to place fill in the lake and had even been furnished an application form, but went ahead anyway, without seeking legal advice, or contacting DER.
Lake Tresca is not a man-made lake as stated on the application. Construction of a causeway was completed by mid-August and did not occur on September 1 and 2, 1980, as stated in the application. In what was apparently a typographical error, the township is stated as 35, rather than 3 South, on the application originally filed, Petitioners' Exhibit No. 9, but this error is rectified in a later submission. Petitioners' Exhibit No. 10.
PRIVATE PROPERTY RIGHTS
Since the fill was originally placed, it has spread out along the bottom or "migrated." Along its southern extent, the causeway now overlaps the Pettengills' property. The road has the effect of blocking access to Lake Tresca for the Pettengills. They have, indeed, sold their boat now that they can no longer make their wonted use of it on the lake.
DISSOLVED OXYGEN, TRANSPARENCY, HEAVY METALS
The water in Lake Tresca Is very clear, except for an iridescent sheen in the vicinity of the causeway, and an organic scum on the water restricted by the causeway. Analysis of water samples taken at four locations in Lake Tresca by Petitioners' own expert revealed no violations of the dissolved oxygen standards. There was speculation but no hard evidence that lead and other heavy metals associated with automobile pollution may have made their way into Lake Tresca as a result of the causeway.
OILS AND GREASES
Mr. Madden, the contractor, did not add oil or grease to the fill he used to build a causeway through Lake Tresca. He has used fill from the same borrow pit on other projects and has had no complaints that it was oily or greasy. But there was no oil or grease on the lake before Mr. Copelan had the road put in. When the fill was originally placed, in the fall of 1980, there was a distinct petroleum odor, for the first time, particularly in humid weather. Mr. Ryan detected a strong petroleum odor as recently as February of this year, but the odor has abated over time somewhat.
Oils and greases have coated the water's surface with an iridescent film, on either side of the southern stretch of the causeway, since it was built. Nowhere else in the lake can oils and greases be detected visually. Three water samples taken near the causeway on February 6, 1982, were analyzed and found to con-tain 3.2, 4.1, and 5.4 milligrams per liter (or parts per million) of oils and greases. A water sample taken elsewhere in the lake on the same day, although at another well-vegetated location, was found to contain less than one part per 100 million (.01 mg. per liter) oils and greases. Mr. Taylor is one of three DER employees who has seen a sheen on the water near the causeway, even after the sod and oyster shells were added. Another DER employee, Lynn Griffin, testifying as an expert in general biology with a special emphasis on oil pollution, concluded that the oil and grease she saw in Lake Tresca came from the causeway, because she discovered no other possible source. Her uncontroverted testimomy specifically rejected the theory that this greasy film could be traced to septic tanks, because the bacteria in septic tanks produce a milky liquid, not an oil sheen. DER's John B. Outland testified unequivocally that the oil and grease on the surface of Lake Tresca either leached out of the fill or came from equipment operated on the fill road.
Petitioners' chemist would have had to use another test in addition to the Soxhlet extraction method he did use, in order to establish to a scientific certainty that the oils and greases he identified in samples taken from Lake Tresca were petroleum hydrocarbons. But with convincing testimony that what looked like petroleum also smelt like petroleum, other evidence did establish that the oils and greases were petroleum derivatives.
BIOLOGICAL EFFECTS
Placement of fill on the lake bottom eliminated benthic organisms that have not reestablished themselves on the submerged causeway surface, nor on dry land above water, subject to the disturbances of automobile traffic. Habitat, shelter, and forage for fishes and invertebrates have been destroyed; bacterial and algal processes have been eliminated. No animals live on top of the submerged fill even though certain larvae may be found less than a meter away, and several animals thrive in the vegetated areas of Lake Tresca.
Although the filled area covers no more than 2,000 square feet, the oils and greases spread out over a larger area, with dimensions not established by the evidence. The iridescent oily film decreases the amount of light penetrating to plants underneath and so reduces photosynthesis in benthic plants. In the short term, oils and greases obstruct gas and nutrient exchanges necessary to plant life and may cause acute toxicity or death. In the long term, oils and greases can cause neoplasia and affect the reproductive capacity and so the growth rate of animals. They can be taken into lipid-rich eggs and other tissues, contaminating the food web.
The untoward effects of oils and grease are more critical in the part of the lake cut off and restricted by the causeway, because of the lack of adequate circulation. There is at present plant and animal life in this part of the lake, nevertheless, and similar fauna and flora in the shallow area of the lake stretching 300 to 400 feet toward open water on the other side of the causeway. The causeway has eliminated a narrow strip from this biologically productive area, an area that also serves to filter pollutants from upland runoff. The full extent of the deleterious effects of the oils and greases is not yet known.
In preparing the foregoing findings of fact, the hearing officer has had the benefit of petitioners' proposed recommended order and the department's proposed findings of fact, proposed conclusions of law, proposed recommended order, and memorandum, all adopted by the applicant. To the extent proposed findings of fact have not been adopted, they have been rejected as unsupported by the evidence or irrelevant to the issues.
CONCLUSIONS OF LAW
Among other things, petitioners have sought to vindicate their riparian rights in these proceedings. But they have abandoned their original contention that Lake Tresca is navigable and, therefore, that Chapter 253, Florida Statutes (1981), applies in this case. In these circumstances, Chapter 403, Florida Statutes (1981) affords the only statutory basis for agency action; and there is no statutory authority for DER to determine riparian rights as between these two private landowners. Tannehill v. International Paper Realty Corp. and Department of Environmental Regulation, No. 77-1817 (Final Order; July 8, 1978). Chapter 403, Florida Statutes (1981) charges DER with the duty of controlling and regulating pollution. No duty or authority to adjudicate purely private rights can be inferred. See Edgerton v. International Co., 89 So.2d 488 (Fla. 1956)("If there is a reasonable doubt as to the lawful existence of the particular power that is being exercised, the further exercise of the power should be arrested." At 490.) "It has long been established law that a statutory agency possesses no inherent powers." Gardinier, Inc. v. Florida Department of Pollution Control, 300 So.2d 75, 76 (Fla. 1st DCA 1974). "There must be some basis in a statute for the exercise of jurisdiction and power involved in the making of an order by an administrative agency." State ex rel. Greenberg v. Florida State Board of Dentistry, 397 So.2d 628, 635 (Fla. 1st DCA 1974) cert. dismissed 300 So.2d 900 (Fla. 1974) . Respondent and all other "[a]dministrative agencies are creatures of statute and have only such powers as statutes confer." Fiat Motors of North America, Inc. v. Calvin, 356 So.2d 908, 909 (Fla. 1st DCA 1978)
DER does have jurisdiction over air pollution and storm-water runoff as a source of pollution, but the present case arises out of Mr. Copelan's application for a permit to fill, after the fact. No application has been made at any time for a stormwater runoff permit or for an air pollution permit. Whether or not DER has authority to require that such permits be obtained for projects of this kind, Mr. Coplan has not applied for such permits and will not receive them as a result of these proceedings for that reason. For the same reason, petitioners' efforts to broaden the issues beyond those arising from the fill permit application must be rejected.
Procedure in environmental cases like the present one was the subject of the thorough and scholarly opinion in Florida Department of Transportation v.
J.W.C. Company, 396 So.2d 778 (Fla. 1st DCA 1981). Here as there
. . . there was no final agency action by DER in this proceeding prior to the peti- tioning landowners' request for a hearing.
Their request for a hearing commenced a de novo proceeding, which . . . indicated, is intended "to formulate final agency action, not to review action taken earlier and pre- liminarily." See McDonald v. Department of Banking and Finance, supra.
* * *
[A]n applicant for a license or permit car- ries the "ultimate burden of persuasion" of entitlement through all proceedings, of whatever nature, until such time as final action has been taken by the agency. This burden is not subject to any "shifting" by the hearing officer, although it is entirely possible that a shifting of the burden of going forward with the evidence may occur
during the course of the permitting proceeding.
* * *
Rule 17-1. 59, Florida Administrative Code
. . . entitled "Burden of Proof," provides that in license and variance proceedings before the Department, "the person request- ing a 1earing, variance, license, or other relief, shall have the burden of proof to establish, by a preponderance of the evi- dence, entitlement to the requested license, variance, or other relief."
* * *
We emphasize again, however, that once a formal hearing is requested, there is no "presumption of correctness" in the mere fact that in preliminary proceedings the Department has issued its "notice of intent" to issue the permit that would relieve the applicant of carrying the "ultimate burden of persuasion." See General Development Corporation v. Florida Land and Water Reg- ulatory Commission, supra; and O'Neil v.
Pallot, 257 So.2d 59 (Fla. 1st DCA 1972) [17-23] Not every request for a formal
Section 120. 57 (1) hearing may properly be granted for it is clear that the peti-
tioner must first demonstrate by appropriate pleading that there are disputed issues of fact requiring such a hearing. Blanchette
v. School Board of Leon County, 378 So.2d
68 (Fla. 1st DCA 1979), United States Ser- vice Industries--Florida v. Department of Health and Rehabilitative Services, 383 So. 2d 72 (Fla. 1st DCA 1980). We totally agree with the sentiments expressed by amicus curlae Agrico that no third party, "merely by filing a petition," should be
permitted to require the applicant to "com- pletely prove anew" all items in a permit application down to the last detail. The petitioner must identify the areas of con- troversy and allege a factual basis for the contention that the facts relied upon by the applicant fall short of carrying the "reasonable assurances burden cast upon
the applicant. The "burden of proof" is upon the petitioner to go forward with
evidence to prove the truth of the facts asserted in his petition. If the peti- tioner fails to present evidence, or fails to carry the burden of proof as to the con- troverted facts asserted--assuming that the applicant's preliminary showing before the hearing officer warrants a finding of "rea- sonable assurances" - -then the permit must be approved. In making this preliminary showing of "reasonable assurances" before the hearing officer, the applicant is re- quired to provide credible and credited evidence of his entitlement to the permit. This having been done, the hearing officer would not be authorized to deny the permit unless contrary evidence of equivalent qual- ity is presented by the opponent of the permit. Florida Department of Transporta- tion v. J.W.C. Company, 396 So.2d 778, 786- 789 (Fla. 1st DCA 1981). (Footnote omitted.)
Petitioners in the present case made numerous allegations in setting forth their objections to this project. The evidence did not establish all of petitioners' allegations by any means, but the evidence did show that the application was false in material respects, that it had not been prepared by a professional engineer, that the fill road lies partly on the Pettengills' property, that oils and greases from the fill have created an iridescent sheen on the surface of the lake, that oils and greases occurred in a concentration greater than 5.0 milligrams per liter in at least one spot, and that aquatic life in the area covered by fill was obliterated.
APPLICATION DEFECTIVE
In material respects, the permit application in this case does not accurately reflect the causeway, even though it has already been constructed. The application was not prepared by a professional engineer, nor was this requirement waived. See Rule 17-4.05(4), Florida Administrative Code. The theoretical benefits to be had from a review of a project after the fact as opposed to speculating beforehand about possible effects are largely rendered nugatory by disingenuousness of the kind exhibited on this application. DER is authorized to "deny a permit application if the applicant, after receiving timely notice, fails to correct errors, omissions, or supply additional information within a reasonable period of time." Rule 17-4.28(11)(a), Florida Administrative Code. It was unlawful, in the first place, for the permit applicant knowingly to "make any false statement, representation, or certification in", Section 403. 161 (1)(c), Florida Statutes (1981), the application.
TRESPASS
Just as DER lacks authority to adjudicate competing private claims of riparian right in Chapter 403 proceedings, but see Section 253.123(2), Florida Statutes (1981), so DER is not autho-rized to provide a forum for the adjudication of competing claims to ownership of land. But DER "will not knowingly issue a permit for dredging and filling or other activities which would constitute a trespass on private property." Harrison v. Crowley, No. 79- 2307, 2 FALR 872-A, 873-A (Final Order; May 3, 1980)
Whether or not the water body is navigable, DER has regularly limited permits to pro- jects immediately waterward of upland owned
by the applicants. This . . . might be in- ferred as a matter of law from the affidavit of ownership or control, which has been prom- ulgated as a form, as part of Rule 17-1.22 (15), F.A.C. This affidavit recites that
the applicant owns or otherwise controls "all the property that is contiguous to and landward of the area in which the work pro- posed in the permit application is to be conducted." Rule 17-1.122(15) 2X74, F.A.C. Harrison v. Crowley, No. 79-2307; 2 FALR 872-A, 874-A (Rec. Order adopted by Final Order; May 3, 1980).
The evidence that the edge of the fill road lies on the Pettengills' property along part of the length of the causeway was uncontroverted. The suggestion by DER's counsel that an after-the-fact permit should be granted and that DER should then issue a notice of violation as a means of encouraging the applicant to remove fill from the Pettengills' lot must be rejected. DER knows that the real situation does not conform to the application's false representations that the fill road lies wholly on the Copelan parcel. Like any honorable private citizen, DER should decline to be a party to a trespass to land.
OILS AND GREASES
The applicant has not given reasonable assurances that fill it placed in Lake Tresca will not cause violations of Rule 17-3.061(2)(j), Florida Administrative Code, which provides that, in surface waters of this State:
Dissolved or emulsified oils and greases shall not exceed 5.0 milligrams per liter.
No undissolved oil, or visible oil defined as iridescence, shall be present so as to cause taste or odor, or otherwise interfere with the beneficial use of waters.
On the contrary, the evidence showed that just such violations have been caused by the fill used to build the causeway. No "mixing zone," see Rule 17-4.244, Florida Administrative Code, has been applied for.
BENTHIC EFFECTS
The waters of Lake Tresca are properly classified as Class III. Rule 17-3.081(1), Florida Administrative Code. It follows that the "Shannon-Weaver of diversity index" applies, in accordance with the terms of Rule 17-3.121(7), Florida Administrative Code, which provides:
Biological Integrity--the Shannon-
Weaver diversity index of benthic macroin- vertebrates shall not be reduced to less than 75 percent of established background levels as measured using organisms retained
by a U.S. Standard No. 30 sieve and, in predominantly fresh waters, collected and composited from a minimum of three Hester-
Dendy type artificial substrate samplers
of 0.10 to 0.15 m2 area each, incubated for a period of four weeks; and, in predominantly marine waters, collected and composited from a minimum of three natural substrate sam- ples, taken with Ponar type samplers with minimum sampling area of 225 square centi- meters.
It may be that soil samples taken from the submerged fill according to the prescribed procedure would yield new organisms after the prescribed incubation period. Such a showing might amount to the reasonable assurances the applicant is obliged to furnish. In the absence of such a showing, however, in view of the fact that most of the fill is not submerged, and in light of uncontroverted testimony that no animal life was present on the submerged fill while such life was thriving nearby, the applicant has failed to give reasonable assurances that the requirements of Rule 17-3.121(7), Florida Administrative Code, would be met.
CUMULATIVE IMPACT
This causeway by itself has been shown to violate water quality rules. It is appropriate, in addition, for DER to take into account the cumulative impact of filling projects in Lake Tresca and similar lakes nearby. See, e.g., Capeletti Brothers, Inc. v. Department of Environmental Regulation, No. 79-891 (Final Order; July 7, 1980). There is much force to the argument that nobody else is ever likely to build a causeway across Lake Tresca. Experience has taught, however, that people have any number of reasons for wanting to increase the size of lake front lots by filling.
Upon consideration of the foregoing, it is RECOMMENDED:
That DER deny the application for an after-the-fact permit to create a fill road across Lake Tresca, and order respondent George Copelan to restore the area to its preproject contours within forty-five (45) days.
DONE AND ENTERED this 3rd day of June, 1982, in Tallahassee, Florida.
ROBERT T. BENTON II
Hearing Officer
Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301
(904) 488-9675
Filed with the Clerk of the Division of Administrative Hearings this 3rd day of June, 1982
COPIES FURNISHED:
Randall E. Denker, Esquire
103 North Gadsden Street Tallahassee, Florida 32301
Gordon D. Cherr, Esquire Department of Environmental Regulation
2600 Blair Stone Road Tallahassee, Florida 32301
James Webb, Esquire Post Office Box 385 Destin, Florida 32541
Victoria Tschinkel, Secretary Department of Environmental Regulation
2600 Blair Stone Road Tallahassee, Florida 32301
================================================================= AGENCY FINAL ORDER
=================================================================
STATE OF FLORIDA
DEPARTMENT OF ENVIRONMENTAL REGULATION
DWYNAL and IONA PETTENGILL,
Petitioners,
vs. CASE NO. 82-294
STATE OF FLORIDA, DEPARTMENT OF ENVIRONMENTAL REGULATION, and GEORGE COPLAN,
Respondents.
/
FINAL ORDER
On June 3, 1982 the duly appointed Division of Administrative Hearings Hearing Officer, after conducting a hearing pursuant to Section 120.57(1), Florida Statutes, submitted his Recommended Order to the Department of Environmental Regulation ("Department"). A copy of the Recommended Order is attached as Exhibit A. Pursuant to Section 120.57(1)(b)(8), F.S., and Rule 17- 1.68(1), Florida Administrative Code, the parties were allowed ten days in which to submit written exceptions to the Recommended Order. The Department timely
filed Exceptions to Conclusions of Law which were adopted by the Applicant, George Copelan ("Applicant"). The Petitioners, Dwynal and Iona Pettengill (Petitioners) responded, requesting oral argument was waived by letter of June 16, 1982, received by the Department on June 22, 1982. The Recommended Order thereafter came before me as head of the Department for final agency action in this matter:
RULING ON EXCEPTIONS
The Department takes exception to the Hearing Officer's conclusion of law that Rule 17-3.121(7), Florida Administrative Code ("Biological Integrity Rule") could be applied to the specific area covered by the fill road and upon the submerged and above-water portions of the road. The Petitioners argue in response that the Hearing Officer only applied Rule 17-3.121(7), F.A.C., to that area of the fill that had sloughed off the fill road and onto Petitioner's property. Upon review it appears that the Recommended Order is somewhat ambiguous and may have spoken to either or both situations without clearly distinguishing between the two. If the Hearing Officer meant to apply Rule 17- 3.121(7) under or on the submerged fill road or that portion of the road above the water, such an application would be erroneous. If the Hearing Officer meant to apply Rule 17-3.121(7) to that portion of the fill which had sloughed off the road proper, such an application would be correct if application of the rule were based upon samples of bethnic macroinvertebrates collected according to the procedure set out in the rule. A reading of the Recommended Order indicates that no such collections were made by Petitioners, the Applicant or the Department.
I therefore conclude that any application of Rule 17-3.121(7), Florida Administrative Code, to the fill road itself is erroneous and the exception is well taken to this extent.
The Department takes exception to the Hearing Officer's Conclusion of Law that the applicant failed to collect samples and therefore failed to give reasonable assurances that Rule 17-3.121(7) would not be violated. The Department argues that under the circumstances of this case, this amounts to an improper shifting of the burden of proof according the holding of Florida Department of Transportation v. J.W.C. Company, 396 So.2d 778 (Fla. 1st DCA 1981). The hearing officer extensively quotes from that case in his Recommended Order. It appears that his ultimate conclusions, however, was based on an evaluation of the evidence and not an incorrect application of the law. To the extent that the hearing officer complied with the holding in that case, the Department's exception is rejected. This agency intends to abide by the principles enunciated in Florida Department of Transportation v. J.W.C. Company.
*
NOTE: The remaining pages of this Agency Final Order were not filed with this Division and are therefore not a part of this ACCESS document.
| Issue Date | Proceedings |
|---|---|
| Jul. 20, 1982 | Suspension Memo Filed with DOAH. |
| Jun. 03, 1982 | Recommended Order sent out. CASE CLOSED. |
| Issue Date | Document | Summary |
|---|---|---|
| Jun. 03, 1982 | Recommended Order | Recommended that Department of Environmental Resources (DER) deny fill permit after-the-fact and order Respondent to remove fill road within forty-five days and to restore area to its earlier form. |
