STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

THOMAS W. HANCOCK, SR., )

)

Petitioner, )

)

vs. ) CASE NO. 83-2805

) (OGC FILE NO. 83-0523) STATE OF FLORIDA, DEPARTMENT OF )

ENVIRONMENTAL REGULATION, )

)

Respondent. )

)

RECOMMENDED ORDER

On February 10, 1984, a formal Section 120.57(1), Florida Statutes, hearing was held in Jacksonville, Florida, before the undersigned. Following that hearing, the parties have presented proposed recommended orders. Those proposals have been considered prior to the entry of the Recommended Order. To the extent that the proposals are consistent with the Recommended Order, they have been utilized. To the extent that the proposals are inconsistent, they have been rejected as contrary to facts found, contrary to conclusions of law reached, or to the recommended disposition.

APPEARANCES

For Petitioner: Thomas Hancock, Sr.

444 Damper Drive Jacksonville, Florida 32208

For Respondent: J. Alan Cox, Esquire

Assistant General Counsel

State of Florida, Department of Environmental Regulation

Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32301

ISSUES

The issues in this matter concern Petitioner's requests of Respondent to be granted an after-the-fact dredge and fill permit related to the placement of fill. See Chapters 253 and 403, Florida Statutes, and Chapter 17-4, Florida Administrative Code. Respondent denied this request and this occasioned the formal hearing of February 10, 1984.

FINDINGS OF FACT

1. Petitioner placed a bulkhead waterward of the line of mean high water and the landward extent of the St. Johns River in Duval County, Florida, to improve his property. He then placed approximately 140 cubic yards of fill

   material in existing wetlands which were located landward of the bulkhead. This was done without obtaining an environmental permit from Respondent.

   
   

2. Subsequently, Petitioner discovered that such permit was necessary and on April 28, 1983, he applied to the Department of Environmental Regulation for the issuance of an after-the-fact dredge and fill permit in keeping with the requirements of Chapters 253 and 403 Florida Statutes, and Chapter 17-4, Florida Administrative Code. An on-site inspection was made by reviewing authorities within the Department of Environmental Regulation and, based upon an appraisal of the project, the Department issued a Notice of Intent to Deny the application. The date of the notice was August 15, 1983. A Final Order related to the environmental permit request was issued on August 29, 1983, conditioned upon failure of the Respondent to apply for an administrative hearing within 14 days of the date of that order. Petitioner filed a Request for Formal Hearing on August 31, 1983, and the formal hearing ensued.

   
   

3. The placement of the bulkhead and fill material was approximately 15 feet waterward of the line of mean high water in the St. Johns River and 30 feet waterward of the landward extent of the St. Johns River according to the plant indices set forth in Rule 17-4.02(17), Florida Administrative Code. The St. Johns River is a Class III water body and is a navigable waterway over which the state retains possessory and public trust rights. Notwithstanding the fact that the Petitioner has obtained permission from the State of Florida, Department of Natural Resources, related to property rights and utilization of the waters of the St. Johns River in the area of his project, he is not relieved from obtaining an environmental permit from Respondent. The Department of Environmental Regulation has jurisdiction over the construction of the bulkhead and the placement of the fill in the landward extent of St. Johns River, according to Chapters 253 and 403, Florida Statutes, and the associated rules of the Department. The landward extent of the waters of the St. Johns River was determined by the existence of smooth cordgrass (Spartina alterniflora), the dominant vegetation of the area filled by the Petitioner and a variety listed in Rule 17-4.02(17), Florida Administrative Code, as an indicator species of the Department's jurisdiction. That vegetation was covered over by the fill material along the 100-foot wide front in which the fill was placed. The previous existence of smooth cordgrass was established by testimony of the Petitioner's son and the continuing existence of that species in a property adjacent to the Petitioner's land along the St. Johns. The effect of the placement of the fill landward of the bulkhead caused the removal of approximately 1,200 to 1,500 square feet of tidal marsh. That tidal marsh was a vital part in the maintenance of water quality in the St. Johns River. In effect, the vegetation and microbiopopulation in soils served to filter out and assimilate pollutants from upland runoff and from the water in the river, and with the placement of the fill those resources and protections were destroyed. Moreover, water quality standards within Chapter 17-3, Florida Administrative Code, were also adversely impacted with the installation of the fill, including those standards related to BOD, dissolved oxygen, nutrients, and turbidity. Petitioner not only failed to give reasonable assurances that the placement of the fill in its short-term implication would not violate the aforementioned water quality criteria, he has also failed to give reasonable assurances that there will be no violations in the long-term results of the placement of fill.

   
   

4. The destruction of the tidal marsh is detrimental to the ecological system in that it takes away detritus which is a necessary part of the food chain. Removal of the marshland is detrimental to the conservation of fish, marine and wildlife, and other natural resources. Petitioner has failed to affirmatively demonstrate that the quality of this detriment will not be

   contrary to the public interest. In fact, Respondent's presentation shows that the activity of the placement of fill is contrary to the public interest because of the adverse impacts on the natural resources of the area, in that natural marine habitats and grass flats suitable to nursery or feeding grounds for marine life were destroyed when the marshland was removed.

   
   

   CONCLUSIONS OF LAW

   
   

5. The Division of Administrative Hearings has jurisdiction over the parties and subject matter of this case. See Section 120.57(1), Florida Statutes.

   
   

6. The Department of Environmental Regulation has general jurisdiction to regulate activities which influence the quality of waters within the State of Florida. That regulatory authority is found in Chapter 403, Florida Statutes. The St. Johns River in Duval County, Florida, is among the bodies of water over which the jurisdiction is granted. The dimensions of the waters in the St. Johns River are measured in keeping with Sections 403.031(3) and 403.817, Florida Statutes, as effectuated by Rule 17-4.02, Florida Administrative Code, the plant indicator system of defining the landward extent of waters of the state. By utilizing this method of identification, Petitioner has been shown to have placed fill in the landward reaches of the St. Johns River. The identification was made by the utilization of the dominant vegetation, smooth cordgrass.

   
   

7. Having established that the activity has been conducted in waters of the state, Petitioner must obtain an after-the-fact permit pursuant to Rule 17- 4.28, Florida Administrative Code, which in carrying out the purpose of protecting water quality requires that a person who conducts dredging and/or filling activities within the landward extent of the St. Johns River to obtain a permit from the Department. To be granted the permit, reasonable assurances must be given that state water quality standards set forth in Chapter 17-3, Florida Administrative Code, will not be violated. Petitioner has failed to give those reasonable assurances, in that water quality standards related to BOD, dissolved oxygen, nutrients, and turbidity have been and continue to be violated, and Petitioner has not satisfactorily addressed those problems.

   
   

8. Petitioner, when he placed the fill material, was pursuing an activity in a navigable water of the state within the meaning of Chapter 253, Florida Statutes. In particular, fill was placed waterward of the line of mean high water in navigable waters of the state. Pursuant to Section 253.124, Florida Statutes, and Rule 17-4.29, Florida Administrative Code, a permit was necessary before or after the placement of fill below the line of mean high water in navigable waters. Petitioner is not entitled to that permit because the fill was an interference with conservation of fish, marine life, and natural resources to an extent to be contrary to the public interest and additionally constituted destruction of natural marine habitats and an interference with nursery and feeding grounds for the marine life, contrary to the public interest.

Upon consideration of the facts found and conclusions of law reached, it

is,

RECOMMENDED

That the Respondent, Department of Environmental Regulation, enter a Final Order which denies the after-the-fact permit application made by the Petitioner, Number 160692532.

DONE AND ENTERED this 20th day of March, 1984, at Tallahassee, Florida.

CHARLES C. ADAMS

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 20th day of March, 1984.

COPIES FURNISHED:

Mr. Thomas Hancock, Sr.

444 Demper Drive Jacksonville, Florida 32208

J. Alan Cox, Esquire Assistant 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: 83-002805

Orders for Case No: 83-002805