STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
CLARK VARGAS, et al., )
)
Petitioner, )
)
vs. ) CASE NO. 84-3528
) STATE OF FLORIDA, DEPARTMENT ) OF ENVIRONMENTAL REGULATION, )
)
Respondent. )
)
RECOMMENDED ORDER
The final hearing in this case was held February 8, 1985, in Jacksonville, Florida. The issue in this case is whether a permit should be issued to Petitioners by Respondent to construct a silica road in a wetland area.
By more definite statement, Petitioner Clark Vargas claimed to represent seven other persons. On November 6, 1984, the Hearing Officer advised Petitioner Vargas of the requirements of the model rules for representation of persons by a non-attorney. At the hearing, Petitioner Vargas elected to represent himself, and three other Petitioners testified and represented themselves. The other Petitioners were Mrs. M. E McCullough, Mr. Steve Scecere, and Dr. Robert L. Barksdale.
FINDINGS OF FACT
In June 1984, Clark Vargas applied for a permit with the Department of Environmental Regulation for activities in the waters of the state. The application stated that the proposed activity was to construct a soil road 700 feet long and constructed of 2,000 cubic yards of fill to be deposited landward of the mean high water line. The roadway proposed was to have Geotextile Fabric placed over it, and would have fifteen inch culverts for cross flow. The purpose of the road was to allow 8 property owners to have automobile access to their lots.
Attached to the application was a copy of a larger engineering drawing of the project, reduced to letter size paper. The larger drawing C in evidence as Responder's Exhibit 1, and the original application is in evidence as Respondent's Exhibit 2. The drawing depicts the construction that is proposed, and in the notes states that the mean high water line is 1.1 feet above mean sea level. The drawing (Respondent's Exhibit 2) shows a number of elevation readings along the road. The elevation readings on the land upon which approximately one half of the road is to be located, the southerly portion closest to Julington Creek, and adjacent to lots 19 through 26, are all below the elevation of mean high water.
The data as to the mean high water elevation for the note on the drawing was obtained by Mr. Vargas from the Corps of Engineers. The elevations on the road were the elevations measured by a survey caused to be conducted by
Mr. Vargas starting from a U.S.G.S. benchmark three quarters of a mile away. The survey was conducted by a registered land surveyor. Mr. Vargas stated that the survey was not meant to be a survey to establish mean high water, and that
it was intended to determine a price and plan for construction. In Mr. Vargas's professional opinion, the survey was not adequate to establish the mean high water line.
Timothy J. Deuerling, an Environmental Supervisor I for the Northeast District, visited the site of the project in the summer of 1984. He saw water throughout the area. He developed the initial opinion that the project was landward of the mean high water line. When he returned to the office, he looked at the small attached drawing and decided that the project appeared to be mostly landward of the mean high water line. The elevations are very unclear on the reduced size version attached to the application. Mr. Deuerling's statement as to the mean high water line is contained in Respondent's Exhibit 4. It is the finding of the Hearing Officer that the drawing was so small and the elevations so unclear that Mr. Deuerling's opinion as to the mean high water line in Exhibit 4 is not reliable, and is rejected.
Jeremy G. Tyler, Environmental Supervisor of the Dredge and Fill Section, North East District, said that the conclusions contained in the Intent to Deny and Final Order of Denial, Respondent's Exhibits 7 and 6, that one-third of the fill was to be placed waterward of the mean high water line, was based upon the data provided to DER by Mr. Vargas, Respondent's Exhibit 2. Mr. Tyler said that it is very hard to determine mean high water line by site inspection, and that he credited the survey as better evidence.
It is she finding of the Hearing Officer that the location of the mean high water line has not been established by the evidence. This finding is not based upon the testimony of Mr. Vargas, however. Mr. Vargas did not present any evidence that the standard for mean high water, which was obtained from the Corps of Engineers, was inaccurate, and he did not present any evidence that the survey elevations on the drawing were inaccurate. There is good reason to believe that the proposed road in this case may be, at least with respect to the one half from lots 19 through 26, waterward of the mean high water line. The evidence shows there is an elevated ridge along the edge of the canal, that this ridge was caused by deposit of dredged material when the canal was dredged in the 1950's or 1960's, and that the ridge has eroded in places, and the water from the canal and Julington Creek floods much of the area from time to time through low places in the ridge. The engineering drawing, however, runs a series of elevation readings across only two places on the ridge, and in both cases there is at least one reading above mean high water level. Further, the only reading at a spot directly on the open water is at the southerly end of the proposed road, and it also is above mean high water. It is possible, therefore, that although portions of the road are below mean high water elevation, these portions may be completely surrounded by higher ground. It is also possible that the several low spots on the canal ridge bring the mean high water line to the road itself. On this record, it is not possible to conclude where the mean high water line is.
The site of the proposed road and surrounding lots are located in a hardwood swamp associated with Julington Creek in Duval County. The land upon which the road would be built is heavily wooded. Julington Creek is Class III waters of the state. The land upon which the road is to be built is the landward extent of the waters of the state. All of the Petitioners stipulated at the hearing that the Department of Environmental Regulation has jurisdiction to require a permit for fill pursuant to Chapter 403, Florida Statutes.
The proposed project would result in the placement of silica fill upon a strip of wetlands described above measuring 25' by 702.5', which is 17,562.5 square feet, plus four driveway pads to lots measuring 25' by 30', for an additional 3900 square feet, for a total of 20,562.5 square feet, which is 0.47 of an acre. (An acre is 43,560 square feet.)
The sand of the roadway and driveway pads will not pollute the waters of the state. The sand of the road will not increase biological oxygen demand or nutrients. During construction, turbidity could be increased if high waters are experienced and the area is not properly stabilized, but turbidity could be monitored and controlled. The materials of the roadway further will not depress the oxygen levels in Julington Creek. The project originally proposed that seed and fertilizer be used to stabilize the banks of the road, and fertilizer would contribute to nutrients in the waters of the state, but Petitioners at the hearing gave reasonable assurances that seeding could be accomplished without fertilizer by using burlap and seed. The roadway itself will also not generate unlawful bacteria that could make its way to the waters of the state. The road will disturb the biological integrity of the organisms living in the soil beneath the roadway and driveway pads.
The proposed project will permanently destroy 0.47 of an acre of the wetlands associated with Julington Creek. These and adjacent wetlands function as a natural kidney, cleansing the water of pollutants, in a continuous cycle. Wetlands contain soil and living organisms that, in balance, filter out pollutants, assimilate nutrients, and provide habitat for organisms. The silica road proposed by Petitioners will not perform these functions. Petitioners presented no evidence to rebut these findings, except to argue that the loss of wetland was insignificant and to argue that wetlands, at times, will also cause pollution. Petitioners gave no other reasonable assurances that the long-term effects of the road would not degrade water quality.
The exchange of water, which results in the natural filtration and cleansing described above, occurs from waters coming from the uplands, from the wetlands, and from open waters such as Julington Creek. Julington Creek is tidal, and the testimony indicated that with significant regularity the wetlands associated with this proposed road were inundated with water.
In a natural state, wetlands will experience dry conditions. During such periods, which are natural and cyclical, water will drain from the swamp and there can be a natural depression of oxygen levels in the open waters, increasing suspended solids. While these facts are true, Petitioners did not present evidence to show with particularity whether this had occurred or to what extent this had occurred with respect to the wetland area where the road is to be located, and did not show with particularity how removal of these wetlands by constructing this road would prevent natural degradation of the water in the future. Moreover, whether or not the natural filtration system of a wetland becomes less efficient due to natural cycles is not relevant in this case. Petitioners here do not propose to replace nature's cyclical inefficiencies with a better, manmade system, but propose, rather, to remove a significant portion of the only filter now operating, without replacement.
The entire Julington Creek drainage basis is 30 or 40 square miles. The relevance of this figure was not established, since from the map which is Respondent's Exhibit 9 it is clear that the drainage basis of Julington Creek, with its associated wetlands, serves to filter pollutants from an equally large, if not larger, upland area. Petitioners argue that removal of 0.47 acre is
insignificant if the entire area is 30 to 40 square miles, but from Respondent's Exhibit 9 it is evident that much of that other part of the wetland is not available to function as a filter for the waters currently filtered by the wetlands in the vicinity of the pro- posed roadway. The proposed road is near the conjunction of Julington and Durbin Creeks, and near the place where the open waters enlarge. The wetlands of the proposed road would be expected to serve the filtration function for those open waters and the uplands immediately above the wetlands, and not some other part of the 30 or 40 square miles.
The land at the headwaters of Julington Creek is now being developed for multifamily housing and industrial uses, and the whole watershed of the Creek is being developed. The waters of Julington Creek have already been stressed in a general way by this development.
Petitioners Vargas, Mrs. M. E McCullough, Dr. Robert L. Barksdale, and Mr. Steve Scecere, all testified at the hearing, and own, respectively, lots 22, 21, 19, and 24. All testified that they intend to build houses on their lots, but have not yet applied for permits.
Since 1977, the Department of Environmental Regulation has consistently taken the position that deposit of fill on the wetlands which are the landward extent of Julington Creek will degrade the quality of the waters of the state, and have consistently acted to prohibit such fill. See Respondent's Exhibits 8, 10, and 11. The Department further has consistently told prospective buyers of this position with regard to these wetlands. Of particular relevance to this application, in 1977 the Respondent denied a fill permit to place 2,500 cubic yards of fill on lot 20 as depicted on Respondent's Exhibit 1. This lot is now owned by Debra H. Prevatt, and is contiguous to lot 19 owned by Petitioner, Dr. Robert L. Barksdale. The fill proposed in 1977 would have eliminated 20,000 square feet of wetlands, approximately the same as the proposed project in this case.
Petitioner proposes the finding that the Corps of Engineers stands ready to issue their permit pending resolution of their application by the Department of Environmental Regulation. This finding is based solely upon the testimony of Mr. Vargas as to the intentions of unnamed officials in the Corps of Engineers, and as such, is hearsay. Therefore, absent direct evidence on the point, the proposed finding is rejected.
Petitioners propose a finding that the permitting process progressed "without negative feedback" until objections were raised by adjacent property owners. This finding was not supported by any evidence other than the opinion of Mr. Vargas, and will be rejected as unsupported and possibly hearsay. It is also rejected as irrelevant since there was no evidence that the Respondent denied the permit for reasons other than those provided by statute and regulation.
The Petitioners have paid taxes on their property, are of the opinion that they cannot build on their land if the permit is denied, and would be willing to sell their land to the state for a reasonable amount if the permit is denied.
Respondent has not placed a monetary value on the wetlands which Petitioners propose to fill.
If Petitioners proposed to build the road on pilings, elevated above the wetlands so that most of the wetlands would continue to function, the application would be approved.
CONCLUSIONS OF LAW
There is jurisdiction of the subject matter and of the parties pursuant to Section 120.57(1), Fla. Stat.
Petitioners at the hearing sought to introduce portions of two reports, both of which were prepared by C. Vargas & Associates, Ltd. The Hearing Officer ordered that Petitioners furnish complete copies of all portions or volumes of all of the reports for inspection by counsel for Respondents before ruling upon admissibility. Petitioners have now withdrawn Petitioners' Exhibit 1, and thus no ruling need be made as to that exhibit. At the hearing, Petitioners sought to present section 6 of volume 2 of a report dated May 1980 entitled "Critique of Water Quality Regulations Governing Wastewater Management Planning in Duval County, Florida." In response to objections to this exhibit by Respondent, Petitioners now seek to place in evidence all of volume 2. Respondent objects to this exhibit on the basis of relevance. Since the exhibit provides general information explanatory of the testimony of Petitioner Clark Vargas, the objections are overruled, and the volume is admitted into evidence as Petitioner's Exhibit 2. To the extent, however, that the exhibit contains data and opinion that is intended to challenge the water quality standards that are applicable in this case pursuant to rule, the exhibit is irrelevant since Petitioner Vargas, at the hearing, expressly withdrew any rule challenge that he may have intended to make.
The Department of Environmental Regulation does not have jurisdiction of the proposed roadway construction pursuant to Chapter 253, Fla. Stat., and Rule 17-4.29, F.A.C.
The Department of Environmental Regulation does have jurisdiction to require a permit pursuant to Section 403.087, Fla. Stat., and Chapter 17-4,
F.A.C. The parties have stipulated to the jurisdiction of the Department because the land upon which the road is to be constructed is to the landward extent of the waters of the state, Rule 17-4.02(17), F.A.C.
In administrative proceedings to obtain a license from the Department of Environmental Protection, the applicant has the burden of establishing entitlement by the preponderance of the evidence. Rule 17-103.130(1) (a),
F.A.C. To obtain the permit sought in this case, the Petitioner thus has the burden of establishing by a preponderance of the evidence that he and the other Petitioners have affirmatively provided "reasonable assurances 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." Rule 17-4.28(3), F.A.C.
The method of constructing the road as proposed constitutes "filling" in the waters of the state as defined by Rule 17-4.02(15), F.A.C.
The proposed silica road and driveway pads will permanently remove nearly one-half acre of wetlands associated with Julington Creek. This will result in the substantial likelihood that the water quality standards and criteria contained in Chapter 17-3, F.A.C., will be violated due to the long- range inability of the remaining wetland in that area to process and filter pollutants in the area as effectively as now processed. Respondent showed that
a number of persons in the area have sought to fill these wetlands in much the same manner, and could be expected to do so if this permit is granted, thus leading to a cumulative negative impact on these wetlands and water quality.
Four Petitioners testified that they wished to construct houses in the same wetlands. All of this evidence shows a reasonable likelihood of a significant cumulative impact in this area if the permit were to be granted. Caloosa Property Owners' Association, Inc. v. Department of Environmental Regulation, 10 Fla. L. W. 144 (Fla. 1st DCA 1985)
Petitioners have given reasonable assurances that the materials to be used on the roadway and driveway pads will, in and of themselves, not violate water quality standards. But Petitioners have not rebutted the evidence presented by the Respondent that removal of this amount of wetland will have the long-term effect of degrading water quality due to loss of a significant amount of the natural filter in the area in question. Further, on the issue of long- term effects, Petitioners have not carried their burden of establishing by a preponderance of the evidence that they have provided reasonable assurances that the long-term effects of the road will not violate water quality standards.
It is therefore recommended that the application for a dredge and fill permit to construct the road and driveway pads as proposed by Petitioners be DENIED.
DONE and ORDERED this 1st day of March, 1985, in Tallahassee, Florida.
WILLIAM C. SHERRILL, JR.
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 1st day of March, 1985.
COPIES FURNISHED:
Clark Vargas, P.E.
President
C. Vargas & Associates 8596 Arlington Expressway
Jacksonville, Florida 32211
M. E McCullough 9139 Warwickshire
Jacksonville, Florida 32217
Steve Scecere
9058 Kentism Court
Jacksonville, Florida 32217
Dr. Robert L. Barksdale 2423 Acadie
Jacksonville, Florida 32205
Ross Burnaman, Esq. Department of Environmental Regulation
2600 Blair Stone Road Tallahassee, Florida 32301
Victoria Tschinke, Secretary Department of Environmental Regulation
2600 Blair Stone Road Tallahassee, Florida 32301
| Issue Date | Proceedings |
|---|---|
| Nov. 01, 1991 | Final Order filed. |
| Mar. 01, 1985 | Recommended Order sent out. CASE CLOSED. |
| Issue Date | Document | Summary |
|---|---|---|
| Apr. 04, 1985 | Agency Final Order | |
| Mar. 01, 1985 | Recommended Order | Wetland dredge and fill permit to construct road and driveway should be denied due to cumulative long-term effect of degrading water quality. |
