STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

HORACE DUMONT, )

)

Petitioner, )

vs. ) CASE NO. 86-2158

) HOWARD THOMPSON and DEPARTMENT ) OF ENVIRONMENTAL REGULATION, )

)

Respondents. )

)

RECOMMENDED ORDER

Pursuant to notice this cause came on for formal hearing before P. Michael Ruff, duly designated Hearing Officer, on November 17, 1986, in St. Augustine, Florida. The appearances were as follows:

APPEARANCES

For Petitioner: Horace T. Dumont, pro se

Windswept Acres Route 5, Box 45C6

St. Augustine, Florida 32084

For Respondent: Howard Thompson, pro se

Route 5, Box 42W Riverview St. Augustine, Florida 32086

For Respondent, Bradford L. Thomas, Esquire Department of Assistant General Counsel

Environmental Department of Environmental Regulation Regulation: 2600 Blair Stone Road

Tallahassee, Florida 32399-9730

This cause arose upon the application to the Department of Environmental Regulation by Howard Thompson for a dredge and fill permit and water quality certification. The permit was sought based upon this Respondent's desire to place approximately ten cubic yards of fill dirt waterward of the mean high water elevation in an artificially constructed ditch connected to the Matanzas River in Sections 22 and 23, Township 8 South, Range 30 East in Butler Beach, St. Johns County, Florida. The ditch in which the fill is proposed to be placed was originally constructed some years ago to connect a small, isolated wetland area to the Matanzas River by means of a second ditch running along a public roadway which empties in turn into the Matanzas River (the Intracoastal Waterway). The coastal dune area in which the wetland and the subject ditch is located is on southern Anastasia Island near Butler Beach in St. Johns County.

The applicant proposes to fill the ditch at one point and sever its connection to these waters of the State.

The permit application was reviewed by the Department, which recommended issuance of the permit. Thereafter, the subject petition was timely filed and

the cause ultimately came on for hearing as noticed. The Petitioner presented three witnesses and one exhibit which was admitted into evidence. The Respondent, Howard Thompson, testified on his own behalf and the Department, as co-Respondent, presented the testimony of Mr. Jeremy Tyler, accepted as an expert witness in the areas of biology and water quality and twelve exhibits, which were admitted into evidence.

At the conclusion of the proceeding the parties elected to avail themselves of their right to file proposed findings of fact and conclusions of law. No transcript was filed. The Department timely filed its proposed recommended order containing proposed findings of fact and conclusions of law. Those proposed findings of fact are treated in this Recommended Order and are again addressed in the Appendix attached hereto and incorporated by reference herein.

The issue to be resolved in this proceeding concerns whether the various State water quality standards and public interest criteria set forth in Chapter 17-12, Florida Administrative Code, and Section 403.918(1-7), Florida Statutes, will be complied with by the project, as proposed, and thus whether the permit should be issued.

FINDINGS OF FACT

1. Co-Respondent, Howard Thompson, applied to the Department of Environmental Regulation (DER) for a dredge and fill permit and water quality certification authorizing him to place approximately ten cubic yards of fill dirt waterward of the mean high water elevation in a certain artificially dredged ditch. That ditch presently connects a formerly isolated wetland area, through a roadside ditch, to the Matanzas River. The project site lies on Anastasia Island, in a coastal dune zone, near the community of Butler Beach, in St. Johns County.

   
   

2. The artificially constructed ditch was originally dredged to connect the isolated wetland area with waters of the State (Matanzas River) for the purpose of drainage of the wetland area in the interest of mosquito control.

   
   

3. The ditch is bordered by parallel streets on each side. Residential lots and houses lie between the streets and the ditch. Single family residences are built on both sides of the ditch upstream of the proposed fill site, with their back yards bordering the ditch. The Petitioner and Petitioner's witnesses own property on the ditch, upstream of the proposed fill site.

   
   

4. Mr. Jeremy Tyler was accepted as an expert witness in the fields of biology and the water quality impacts of dredge and fill projects. It was thus established that the water quality standards at issue will not be violated by the project. Although there is presently some tidal exchange with the Matanzas River, this provides little or no ecological benefit due to the paucity of water flowing through the ditch in either direction under normal weather conditions. The wetland area which presently is connected to the Matanzas River through the ditch system has a low value in terms of functions it performs in enhancing recreational value, marine productivity, conservation of fish or wildlife and their habitats, for purposes of the criteria set forth in Section 403.918(2)(a) 1-7. This is because of its very small size and because of its isolation from other waters of the State, being connected only by the small drainage ditch characterized by very low flows of water during normal periods of rainfall and because of the low level of tidal exchange between the wetland and the adjacent waters of the State.

5. Mr. Tyler established that should the proposed plug be placed in the ditch, that the relative value of the functions performed by the wetland area will not be measurably altered in terms of either improvement of those functions or their degradation. The ditch itself has a very low value in terms of marine productivity, conservation of fish and wildlife or their habitats and the other criteria in the section cited above because it is simply an artificial ditch cut through a pre- existing upland and is not characterized by a significant growth of beneficial marine or aquatic plant species, nor by diversity of other marine or aquatic life forms which could possibly be degraded as to their diversity or as to the quality of their habitats by installation of the fill at the proposed location. Thus, the water quality criteria of Chapter 17-3 and 17-12, Florida Administrative Code, will not be violated by the installation of the fill and completion of the project, nor will the above considerations related to the public interest, enunciated in the Section cited above, be adversely affected by the project.

   
   

6. The Petitioner and the Petitioner's witnesses are presently experiencing some flooding caused in part by fill placed in the ditch at another point by another property owner without the authorization of a permit. These persons have experienced flooding which has caused the death of flowers and shrub plants and trees in their yards because of elevated water levels resulting from the fill already placed in the ditch. The Petitioner established that if the ditch is plugged by the subject project, the flooding condition will be exacerbated and will further damage his and his witnesses' property. There is a substantial likelihood of increased mosquito infestations caused by the plugging of the ditch as the Petitioner and his neighbors are presently experiencing a relatively severe problem with mosquito infestation which prevents them from using their property for various outdoor pursuits more frequently than in the past before any fill was placed in the ditch. The Department's witness, Mr. Tyler, acknowledged that ponding of water and flooding will likely result if the plug is placed in the ditch. The flooding will impinge on the property of the Petitioners to a greater extent than is presently the case because of the different location of the plug from the present, unauthorized fill already been placed in the ditch.

   
   

7. The Petitioner did not produce an expert witness in the fields of hydrology, horticulture, nor in public health (with regard to the mosquito infestation complaints). Petitioner established however, given the testimony concerning the lack of flooding and lessened mosquito infestation before the present fill was placed in the ditch, and the likely result of increased flooding because of the location of the proposed fill, so as a sufficient basis by lay opinion testimony that increased flooding will occur and that the flooding has been and will be the direct cause of the death of shrubbery, trees and flowers in the yards of homeowners upstream from the fill site. The presently severe mosquito infestation will likely be exacerbated.

   
   

8. It has thus been established that increased flooding will occur if the fill is placed in the ditch downstream of property owned by the Petitioner and Petitioner's witnesses. There is also a substantial likelihood that an increased mosquito infestation will result in the area of their residences because of the lack of drainage of the flooded area which can only be alleviated by percolation and evaporation at very slow rates if the present drainage ditch is filled further by completion of the subject project.

   CONCLUSIONS OF LAW

   
   

9. In order for an applicant to establish entitlement to a dredge and fill permit and water quality certification, the applicant must provide reasonable assurances that the proposed project will not violate State water quality standards or be contrary to the public interest as that is defined in Subsection 403.919(2)(a)(1-7), Florida Statutes and Rule 17-12.070, Florida Administrative Code. In enacting the so-called Warren S. Henderson Wetlands Act, codified for purposes of this proceeding at Section 403.918(1) and (2), Florida Statutes, the 1984 Florida Legislature broadened the jurisdiction of the Department, as pertinent hereto, in the area of consideration of public interest values. Thus, it is provided at Section 403.918(2)(a) 1-7, that various criteria are to be employed in determining whether a project is not contrary to the public interest, or, in the case of outstanding Florida waters, is clearly in the public interest. This enactment requires that those values enumerated at paragraph 1-7 of that subsection be balanced, in their consideration, in making determinations concerning the impact of a project on the public interest. Mr. Tyler, in his expert testimony, has established that the values enumerated in those seven paragraphs concerning conservation of fish and wildlife and their habitats; adverse effects on navigation or water flows, etc.; recreational values or marine productivity effects; adverse effects on fishing and adverse effects on the current condition and relative value of functions performed by affected areas by the proposed activity, will not be affected in terms of either improvement of those values or their degradation in any measurable way. Thus, it is concluded that the project and its impacts as to those values named above is neutral in its consequences. That leaves for consideration in this balancing process the issue at Section 403.918(2)(a)1, concerning whether the project will adversely affect the public health, safety or welfare or the property of others.

   
   

10. In this connection, the Department's permit appraisal, as well as Mr. Tyler's testimony, is in substantial agreement with testimony adduced by the Petitioner to the effect that the project will likely cause flooding onto adjacent landowners' property because of the ponding of water behind the filled plug the applicant proposes to install. The Petitioner's testimony and evidence moreover establishes that flooding conditions which presently occur with significant frequency because of fill already placed in the ditch at another point, will likely be exacerbated, so that the plug placed in the ditch as proposed will cause severe flooding of Petitioner's and Petitioner's witnesses' property to the extent of furthering the damage already caused by excess water levels to shrubbery, trees and flowers in their yards. It has also been established by Petitioner's case-in-chief that there is a substantial likelihood that mosquito infestations will worsen by the lack of drainage occasioned by the installation of the fill plug and resultant frequent flooding. Indeed, the water ponding behind the plug will have nowhere to drain and will remain standing until it is alleviated by evaporation into the air and percolation into the soil. It will thus remain standing for substantial periods of time and result in additional breeding areas for mosquitoes, even assuming that it will dissipate entirely between significant periods of rainfall which may not be the case.

    
    

11. Inasmuch as the other public interest considerations under the above- mentioned seven criteria are not truly at issue in this project and the project is concluded to be neutral in their regard, the public interest consideration concerning adverse effects on the public health and the property of others is of pivotal importance. It is concluded for the above- mentioned reasons that serious flooding will likely result if the proposed project is carried to fruition, which will adversely affect the property of others in the above-found

    respects. This adverse effect on the public interest is deemed to tip the balance in the public interest standards "weighing process" in favor of denial of the permit.

    
    

12. In this regard it is noted that, as to the remaining six public interest criteria, the project was not shown to enhance the ecological conditions those criteria address in the area of the project in any way, but merely was shown not to cause any significant degradation of them. Accordingly, improvements to the ecological posture of the area involved are not present so as to outweigh, in the balancing process, the adverse effect on the public interest posed by flooding and insect infestation problems. Thus, the proof adduced by Petitioner, and to some extent corroborated by Respondent Department's witness Tyler, is sufficient to support denial of this project as being contrary to the public interest.

    
    

13. Moreover, Section 403.918(2)(b) provides that "if the applicant is unable to otherwise meet the criteria set forth in this subsection, the Department, in deciding to grant or deny a permit, shall consider measures proposed by or acceptable to the applicant to mitigate adverse effects which may be caused by the project...." In this respect it is noted and concluded that the applicant has proposed no mitigation effects, methods or procedures to alleviate the adverse effects proven to likely occur. Accordingly, for this additional reason it is concluded that the permit should be denied.

RECOMMENDATION

Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses and the pleadings and arguments of the parties, it is, therefore

RECOMMENDED that the Respondent Department of Environmental Regulation deny the dredge and fill permit application no. 551136302 of Howard Thompson.

DONE and ENTERED this 4th day of February, 1987 in Tallahassee, Florida.

P. MICHAEL RUFF Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 4th day of February, 1987.

ENDNOTE

1/ See 90.701(1)(2), Florida Statutes.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 86-2158

Fact

Co-Respondent Department of Environmental Regulation's Proposed Findings of

1. Accepted.

2. Accepted.

3. Accepted.

4. Accepted.

5. Accepted.

6. Accepted.

7. Accepted.

8. Rejected as contrary to the preponderant weight of the testi-mony and

   evidence presented. It is not necessary, to reach the conclusions reached in the Recommended Order, that exact hydrological measurements of likely flooding be introduced into evidence and used as a basis for determining how much flooding will result by the proposed filling.

9. Accepted in part, but rejected in that it attempts to convey the impression that there is no mosquito problem experienced by Petitioner different than any other area of Florida.

10. Rejected as contrary to the preponderant weight of the testimony and evidence adduced.

COPIES FURNISHED:

Horace T. Dumont Windswept Acres Route 5, Box 45C6

St. Augustine, Florida 32084

Howard Thompson Route 5, Box 42W Riverview

St. Augustine, Florida 32086

Bradford L. Thomas, Esquire Assistant General Counsel Department of Environmental

Regulation

2600 Blair Stone Road Tallahassee, Florida 32399-2400

Dale Twachtmann, Secretary Department of Environmental

Regulation

2600 Blairstone Road

Tallahassee, Florida 32399-2400

Daniel H. Thompson, Esquire General Counsel

Department of Environmental Regulation

2600 Blairstone Road

Tallahassee, Florida 32399-2400

Docket for Case No: 86-002158

Orders for Case No: 86-002158