STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DR. ALLAN ROTHSCHILD and )

MADELINE ROTHSCHILD, )

)

Petitioner, )

)

vs. ) CASE NO. 82-3461

) PINELLAS COUNTY DEPARTMENT OF ) PUBLIC WORKS and DEPARTMENT OF ) ENVIRONMENTAL REGULATION, )

)

Respondent. )

)

RECOMMENDED ORDER

This case was heard before the Division of Administrative Hearings by its designated Hearing Officer, Michael Pearce Dodson, on March 16, 1983, in Clearwater, Florida. The following appearances were entered:

APPEARANCES

For Petitioners: Madeline Rothschild, pro se and

Elizabeth J. Daniels, Esquire 1/ JOHNSON, BLAKLEY, POPE, BOKOR, RUPPEL & TEW, P.A.

Post Office Box 1368 Clearwater, Florida 33157

For Respondents: William W. Deane, Esquire

Assistant General Counsel

Department of Environmental Regulation Thin Towers Office Building

2600 Blair Stone Road Tallahassee, Florida 32301

Van B. Cook, Esquire

Chief Assistant County Attorney Pinellas County

315 Court Street Clearwater, Florida 33516

BACKGROUND

These proceedings began on December 20, 1982 when Petitioners Dr. and Mrs. Rothschild filed their Petition for Formal Proceedings to contest the intent of the Department of Environmental Regulation to issue a dredge and fill permit to Pinellas County for the improvement of a bridge. On December 23, 1982, the case was forwarded to the Division of Administrative Hearings for the assignment of a Hearing Officer and the scheduling of the final hearing. On March 8, 1983 the parties filed their Prehearing Stipulation.

At the final hearing Petitioner offered into evidence exhibits P1-P11. Exhibits P1, P2, P5, P10 and P11 were so received. After the final hearing Petitioners offered exhibit P12, a group of slides about which Mrs. Rothschild testified during the final hearing. Through inadvertence she failed to move them into evidence. After the final hearing she requested that they be received as a late-filed exhibit. That request is new granted. Respondent Department of Environmental Regulation offered Composite Exhibit 1 which was received into evidence. Respondent Pinellas County offered no exhibits. All parties presented the testimony of witnesses.

At the conclusion of the final hearing Petitioners and Respondent Pinellas County filed Proposed Recommended Orders containing proposed findings of fact which have been given careful consideration here. To the extent that the proposed findings are not reflected in this Order, they are rejected as being either not supported by the weight of admissible evidence, or as being irrelevant to the issues determined here. 2/

FINDINGS OF FACT

1. By an application filed with the Department of Environmental Regulation on October 28, 1980, Pinellas County requested a dredge and fill permit to- construct a road and bridge crossing with an associated stormwater treatment system in connection with the improvement of County Road No. 1 across Curlew Creek and its wetland flood plain. The specific location of the project is in Section 12, Township 28 South, Range 15 East, in the City of Dunedin, Pinellas County, Florida. The project will involve the dredging of approximately 2,639 cubic yards of soil and include the placement of approximately 1,605 cubic yards of fill in the creek bottom.

   
   

2. After an evaluation of the initial application the Department issued a letter of intent to deny the application on March 17, 1982, but the denial suggested several modifications to the project which were accepted by the County when it filed an amended application on September 30, 1932. It is on the basis of this amended application that the Department issued its notice of intent to grant on November 5, 1982. The County's initial application was complete before February I, 1982, the effective date of Chapter 17-25, Florida Administrative Code, the Department's new stormwater discharge rules.

   
   

3. The Petitioners jointly own real property on which they reside immediately to the west and downstream of Curlew Creek. Their property is riparian to the creek.

   
   

4. Curlew Creek is a natural water body which runs from near U.S. Highway

   19 in a westerly direction to the Gulf of Mexico in Dunedin, Florida. It is an unnavigable Class III water of the state. At times it carries a heavy stormwater runoff load and passes private residences such as Petitioners' which border the creek in many areas. During design storm events there has been flooding when the creek exceeds its historic flood plain. That flooding has come up into Petitioners' back yard.

   
   

5. At the project site where the creek now runs under the existing span for County Road No. 1, the creek is approximately 25 feet wide and 2 feet deep. The creek bottom is flat and consists of deep fine sand. The banks are well vegetated with a dense scrub layer and many large trees. This vegetation provides good soil stabilization and prevents erosion of the creek banks.

6. Curlew Creek is presently traversed by County Road No. 1 over a two- lane bridge. Because of increased traffic flow the County proposes adding another bridge span to carry two more lanes of traffic. When the additional two lanes are complete the center line of the entire bridge complex will be moved to the west of its present location and therefore be closer to Petitioners' residence. Petitioners primary concern in opposing the project is their belief that when completed the project will increase the potential of Curlew Creek to flood their land.

   
   

7. Curlew Creek, which generally runs in an east-west direction, takes a sharp bend to the south on the downstream side of the existing bridge. It later resumes its course to the west toward St. Joseph's Bay and the Gulf of Mexico. The creek's rapid change of direction underneath the bridge caused some confusion when the Department of Environmental Regulation issued its notice of intent dated November 5, 1982, to grant the requested dredge and fill permit. Condition number one for issuing the permit stated "The existing vegetation in an area more than 50 feet up and downstream from the bridge railing will not be disturbed except in the area of detention pond number 3 on the northeast side of the bridge." The author of the notice had intended that the condition mean vegetation would not be disturbed any further than 50 feet to the east or 50 feet to the west of the planned bridge railing, and not 50 feet upstream or downstream.

   
   

8. The project plan is to remove a small sand spit which projects into the creek from the east bank immediately to the south of the bridge. Additional minor dredging is planned to smooth the water flow through the bridge area.

   Fill will be deposited to also provide a smoother water flow and consequently cut down on the eddies which presently arise under the bridge. The result of improved stream flow will be a reduction in the erosion of the creek banks and a lessening of turbidity in the creek water.

   
   

9. Because the construction proposed will result in removal of certain vegetation along the creek bank which now provides soil stabilization, the County plans to use wet sand cement riprap or gabions for slope protection to stabilize the soil. Either method provides adequate erosion protection to ensure that the standards for Class III surface waters of the state will not be violated if the conditions of the proposed permit are followed.

   
   

10. The expanded stormwater runoff facilities which are part of the project, as modified and subject to the condition in the Department's letter of intent to grant, will not have a significant impact on the water quality of Curlew Creek. These facilities provide adequate retention and settling capacity to ensure that the stormwater which eventually discharges into the creek will not cause pollution.

    
    

    CONCLUSIONS OF LAW

    
    

11. The Division of Administrative Hearings has jurisdiction over the parties and subject matter of this case. Section 120.57(I), Florida Statutes (1981).

    
    

12. Hearings of this type, where a third party is objecting to proposed agency action to grant a permit, are governed by the holding of Department of Transportation v. J.W.C. Company, Inc., 396 So.2d 778 (Fla. 1st DCA 1981). It requires that:

    ...The Petitioner must first demonstrate by appropriate pleadings that there are disputed issues of fact requiring such a hearing....

    We totally agree with the sentiments expressed by amicus curiae Agrico that no third party, "merely by filing a petition," should be per- mitted to require the applicant to "completely prove anew" all items in a permit application down to the last detail. The Petitioner must identify the areas of controversy and allege a factual basis for the contention that the facts relied upon by the application fall short of carrying the "reasonable assurances". burden cast upon the applicant. 396 So.2d at 789. (Emphasis added)

    
    

    The relevant portions of the instant petition for final hearing state:

    
    

    1. Petitioners have reason to believe that their substantial interest will be af- fected by the proposed agency action in the following ways:

       1. Despite the specific conditions set forth in the notice of intent to issue permit, it appears from the con- struction plans that existing vegetation will be disturbed in areas more than 50 feet downstream from the bridge railing.

       2. The changes in the streambed, stream banks, and removal of old bridge abutments and natural vegetation will enhance the dangers of erosion on peti- tioners' property.

          1. By altering the existing condi- tion of the northern creek bank, the proposed construction plan will, at high water levels, enhance the danger of major relocation of the streambed across peti- tioners' property.

          2. The pipes carrying storm water

             from the new bridge and roadway are being conveyed into the creek in such a manner as to enhance the erosion and flooding dangers to petitioners' property

          3. The conditions enumerated above will pose a serious danger to the public health, safety, and welfare.

          
          

13. Petitioners' main concern, erosion or flooding of property, is not within the protections of Chapter 403, Florida Statutes applicable here. In this proceeding the County must demonstrate that the project will not have a detrimental impact on water quality. Such a demonstration has been made. Even if Petitioners' request for hearing is read broadly to encompass the issue of turbidity under the rubric of "erosion," the County has provided reasonable assurances that the project, subject to the specific conditions in DER's letter of intent, will not violate surface water turbidity standards set out in Section

    17-3.06(2)(q), Florida Administrative Code. Adequate assurance has also been given that the requirements of Section 17-4.07, Florida Administrative Code, that the project will not discharge stormwater runoff in such a manner as to create a significant impact on the quality of Curlew Creek. Section 17-4.248, Florida Administrative Code. 3/

    
    

14. Pinellas County has adequately demonstrated reasonable assurances required by 17-4.28, Florida Administrative Code that the dredging and filling project as modified and subject to the conditions in the Department's letter of intent will not discharge, emit, or cause pollution in contravention of Chapter 403, Florida Statutes.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED:

That the Department of Environmental Regulation enter a Final Order approving the application of Pinellas County for a dredge and fill permit in order to construct the above described project in accordance with the conditions set out in the Department's letter of intent to grant dated November 5, 1982.

DONE and RECOMMENDED this 24th day of October, 1983, in Tallahassee, Florida.

MICHAEL P. DODSON

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 24th day of October, 1983.

ENDNOTES

1/ Ms. Daniels has represented Petitioners through all of these proceedings up to the final hearing. At that time she appeared only to introduce Petitioners to the Hearing Officer. She is listed as counsel of record here because she has not subsequently filed a Motion to Withdraw from her representation of Petitioners.

2/ Sonny's Italian Restaurant v. Department of Business Regulation, 414 So.2d 1156, 1157 (Fla. 3d DCA 1982); Sierra Club v. Orlando Utilities Commission, 436

So.2d 383, 389 (Fla. 5th DCA 1983).

3/ Superseded by Chapter 17-25, Florida Administrative Code for permit applications filed after February 1, 1982.

COPIES FURNISHED:

Dr. and Mrs. Allan Rothschild 1672 Winding Creek Road

Palm Harbor, Florida 33563

Elizabeth J. Daniels, Esquire JOHNSON BLAKLEY POPE BOKOR

RUPPEL & TEW, P.A.

Post Office Box 1368 Clearwater, Florida 33517

William W. Deane, Esquire Assistant General Counsel Department of Environmental Regulation

2600 Blair Stone Road Tallahassee, Florida 32301

Van B. Cook, Esquire

Chief Assistant County Attorney

315 Court Street Clearwater, Florida 33516

Mary Smallwood, Esquire General Counsel

Department of Environmental

Regulation 2600 Blair Stone Road

Tallahassee, Florida 32301

Victoria Tschinkel, Secretary Department of Environmental Regulation

2600 Blair Stone Road Tallahassee, Florida 32301

Docket for Case No: 82-003461

Orders for Case No: 82-003461