STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JAMES R. BENFIELD, )

)

Petitioner, )

)

vs. ) CASE NO. 88-0117

) STATE OF FLORIDA, DEPARTMENT ) OF ENVIRONMENTAL REGULATION, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was conducted in this case on October 25, 1988, at Naples, Florida, before Veronica E. Donnelly, a duly designated Hearing Officer of the Division of Administrative Hearings. Appearances for the parties at the hearing were as follows:

For Petitioner: James R. Benfield, pro se

1281 31st Street Southeast Naples, Florida 33964

For Respondent: Richard Grosso, Esquire

Assistant General Counsel

Department of Environmental Regulation 2600 Blair Stone Road

Tallahassee, Florida 32399-2400

In order to construct a private residence in a wetland area, the Petitioner applied to the Respondent for a dredge and fill permit. The applicant seeks a permit which will allow him to place 1,200 cubic yards of sand fill over a .17 acre area of his land. During a review of the application, the Respondent determined that the project will have an adverse effect, and is not in the public interest. In its intent to deny the permit, the Respondent indicated requisite changes in the application that would make the Petitioner eligible to receive a permit. The Petitioner objects to the changes suggested by the Respondent which would confer eligibility for a permit. The Petitioner contends that the modifications suggested are onerous and unduly burdensome. In addition, the Petitioner challenges the Respondent's authority to require a dredge and fill permit on the property and claims that the site is not within the agency's jurisdiction.

During the hearing, the Respondent presented one witness and submitted five exhibits. The Petitioner called one witness and testified in his own behalf.

Eleven exhibits were introduced by the Petitioner. All of the exhibits were admitted into evidence. Before the evidence was closed, the Petitioner requested the opportunity to file additional exhibits which were not available to him during the hearing. The parties were given until November 4, 1988, to file additional exhibits. At that time, the evidentiary portion of the proceedings was closed and no additional evidence was received.

A transcript of the hearing was not ordered. The Petitioner waived his opportunity to file proposed findings of fact within ten days after the close of evidence. Proposed findings of fact and conclusions of law were timely submitted by the Respondent on November 14, 1988. Specific rulings on the proposed findings of fact are in the Appendix to the Recommended Order.

FINDINGS OF FACT

1. The Petitioner is the owner of five acres of undeveloped real property in Henderson Creek Basin, Naples, Collier County, Florida. The property is dominated at the tree canopy level by medium-sized cypress. The mid-story plant association is made up of a varying mix of wax myrtle, dahoon holly, seedling cypress, and a lesser amount of slash pine. Hypercium, stillingia, poverty grass, and xyris are the major components of the ground cover. In the vicinity of the proposed homesite, the ordinary mean water depth averages 2-4 inches, as indicated by the water marks on the stems of cypress, stillingia, and cypress knees. Based upon the dominant vegetation, the project site is within the jurisdiction of the Respondent for the regulatory purposes set forth by law.

   
   

2. The Petitioner intends to build a house on the property for his personal use. In order to construct the residence, the Petitioner applied to the Respondent for a dredge an fill permit. In the application,, the Petitioner seeks a permit which would allow him to place 1,200 cubic yards of sand fill over a .17 acre area of the submerged land.

   
   

3. The proposed location for the housepad, septic tank and drainfield is the center of the five acre parcel. This is the predominant area in which the Petitioner seeks to place the fill. A large portion of this part of the property is low and consists of wetlands.

   
   

4. The project, as it is designed in the permit application, does not provide the Respondent with reasonable assurance that the applicable water quality standards for the geographical area will continue to be met. In fact, the proposal demonstrates that a violation of the standards will occur. The Petitioner recently cleared 14,340 square feet of the wetlands in the proposed homesite area. The cypress trees which ware removed acted as a pollution filtration system and aided in the cleansing of the standing waters on site. These waters eventually percolate down to the aquifer to become an important source of fresh water for the state. Without the trees, the water will lose an important aid in the natural purification process.

   
   

5. In addition to the adverse impact on water quality, the project will interrupt the natural water flow and filtration which has historically occurred when the water located in the low wetland area on the property has overflowed and eventually run into Henderson Creek. The Respondent is required to consider this natural condition in its determination as to whether or not a permit should be issued.

   
   

6. The Respondent has indicated that certain changes should be made to the project in order to make it eligible to receive a permit. The Respondent suggested that the Petitioner relocate the fill area for the house pad eighty- five feet to the west of the proposed site. The septic tank and drainfield should be moved one hundred and ten feet to the west. The drive should be reduced to a single lane which leads directly to the housepad. In addition, three culverts should be placed under the drive. The purpose of these modifications would be to minimize the impact of the project on the wetland

   site. The movement of the project away from the cypress area would minimize the damage to water quality that would occur if the septic system were placed in the wetlands. If the design for the lane and driveway were modified, the harm to the natural sheet flow of the water through the area on its route to the creek would be greatly reduced.

   
   

7. Another suggested modification was to remove exotic vegetation which has been planted or which has begun to dominate in some areas because of the clearing of the property which took place before and after the Petitioner purchased the property.

   
   

8. The Respondent also seeks a construction plan from the Petitioner which demonstrates that the fill areas will be adequately stabilized and that turbidity will be controlled during construction.

   
   

9. The final modification suggested by the Respondent was for the Petitioner to place a deed restriction on the property which would protect the planting areas and the remainder of the wetlands on the site.

   
   

10. The Petitioner's expert, Gary L. Beardsley, has recommended that the proposed circular entrance driveway be eliminated and that a single and straightened lane be substituted its place. He further recommended that one 12" diameter culvert should be installed under the lane near the housepad in order to facilitate or equalize any sheet flow on the downstream side. This recommendation is made to substitute for the agency's proposal that three culverts be placed under the straightened lane.

    
    

11. In addition, the Petitioner's expert recommended that the septic drainfield be moved 30 feet westward to reduce the fill slope requirements by abutting the house and septic fill pads. The Petitioner should also be required to replant 5,265 square feet of wetland area that he cleared on site with the approval of the Collier Natural Resource Management Department, but without the approval of the Respondent.

    
    

12. The Petitioner has not agreed to any of the proposed modifications, including those proposed by his own expert.

    
    

13. The Respondent's request for a deed restriction is not necessary to the agency's regulatory function. There was no reason for the request presented at hearing by the agency.

    
    

    CONCLUSIONS OF LAW

    
    

14. The Division of Administrative Hearings has jurisdiction over the subject matter of and the parties to this proceeding. Sec. 120.57(1), Fla. Stat.

    
    

15. The project site is within the jurisdiction of the Department of Environmental Regulation for regulatory purposes based upon the dominant vegetation and the soils on the property which are characteristic of those areas subject to regular and periodic inundation by the waters of the state. Sec. 413.913 and 408.817, Fla. Stat.; Rule 17-4.022, F. A. C.

    
    

16. Section 403.918(2), Florida Statutes, requires the applicant to provide the department with reasonable assurance that the project is not contrary to the public interest. In this case, the Respondent determined that the project, as it is currently proposed, does not meet the criteria set forth

    in the statute because the project will adversely effect the water quality, the wetland habitat, and the flow of water through the area and into Henderson Creek, a receiving body of water.

    
    

17. Although the applicable statutes do not require the Respondent to propose measures to mitigate adverse effects which may be caused by a project, the Respondent has adopted an agency policy under which the agency indicates requisite changes in the application that would make it eligible for a permit. The agency places its proposed modifications in writing in the Intent to Deny the Permit. Pursuant to statute, before a permit is denied, the Respondent is allowed to consider measures "proposed by or acceptable to the applicant" which would mitigate the adverse effects of the project and result in the granting of the permit. Sec. 403.918(2)(b), Fla. Stat.

    
    

18. In this case, the applicant has not agreed to any of the modifications proposed by the Respondent or the Petitioner's own expert, Gary L. Beardsley, which may or may not make the project eligible for a dredge and fill permit.

    
    

19. There appears to be ample evidence that the project, as proposed, is contrary to the public interest under the statutory criteria the agency is required to use which is found in Section 403.918(2), Florida Statutes. The Respondent has no alternative but to deny the application request because the Petitioner refuses to make any modifications which will cause the project to become eligible for a permit.

    
    

20. It appears from the evidence and the arguments presented at hearing that the Petitioner objects to the government's exercise of its regulatory authority on a parcel of property owned by him. When the granting of a dredge and fill permit is contrary to the public interest as determined by statutory criteria, the Respondent does not have the authority to issue the permit. The rights of an individual landowner have to be balanced against the rights of the public to water that meets state water quality standards and the maintenance of wetlands for environmental purposes. "The owner of private property is not entitled to the highest and best use of his property if that use will create a public harm". Goldblatt v. Town of Hempstead, 369 U.S. 590, 82 S.Ct. 987, 8 L.Ed 2d 130 (1962).

    
    

21. The agency attempted to balance the public rights and the individual's rights by suggesting modifications which could be made on the application to mitigate the adverse effects of the project. If the adverse effects were to be reduced by these changes, the agency could again balance interests under the statutory criteria, and decide for the Petitioner.

    
    

22. When the Petitioner did not agree with the suggestions made by the Respondent, it became his burden to demonstrate that the project is not contrary to the public interest under the criteria set forth in section 403.918(2)(a), Florida Statutes. The Petitioner was unable to meet his burden, and the current application should be denied.

    
    

23. During the hearing, the Petitioner submitted proposed modifications to the project which were suggested by his environmental expert, Gary L. Beardsley. These modifications appear to be reasonable. If the Petitioner had accepted his expert's modifications, the adverse effects of the project could have been sufficiently mitigated to allow the agency to issue a dredge and fill permit.

24. Respondent's demand that the Petitioner grant a deed restriction which protects the replanted and restored wetland area, as well as the remaining on site wetlands, leeks to give the agency more control over the property than the power granted by the legislature. Such a deed restriction is not necessary to unable the agency to continue with its ongoing regulatory function in the enforcement area. There was no reasonable basis presented at hearing as to why the request was made. As a result, the condition or modification to the permit which requires the granting of the deed restriction should be removed from the Intent to Deny.

    
    

25. Based upon the foregoing, it is RECOMMENDED:

That the dredge and fill permit, currently proposed, be denied.

DONE AND ENTERED this 2nd day of December, 1988, at Tallahassee, Florida.

VERONICA E. DONNELLY, 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 2nd day of December, 1988.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 88-0117

Respondent's proposed findings of fact are addressed as follows:

1. Accepted. See HO #2.

2. Accepted. See HO #1.

3. Accepted.

4. Accepted.

5. Accepted.

6. Accepted. See HO #3.

7. Reject the factual determination that the lot has 6' to 8' of water during the wet season. The evidence showed that in the extreme high water pool stage, the water is six to eight inches in depth. There is invasion of exotic plants as the Intent to Deny requests their removal from the site. 180' linear by 10' width of the entrance roadway as indicated by the DER Field Inspector sheet is nonjurisdictional. The rest is conclusionary, and therefore all of paragraph 7 is rejected by the Hearing Officer.

8. Accpted. See HO #4.

9. Accepted that the site promotes marsh rabbits. There was no credible evidence that the area supports the red-cockaded woodpecker, raccoons, bobcats, or a large variety of birds.

10. Reject. Conclusionary. See HO #10-12.

11. Accept. See Conclusions of Law.

12. Rejected. Irrelevant.

13. Rejected. Conclusionary.

COPIES FURNISHED:

Mr. James R. Benfield

1281 31st Street Southeast Naples, Florida 33964

Richard Grosso, Esquire Assistant General Counsel

Department of Environmental Regulation 2600 Blair Stone Road

Tallahassee, Florida 32399-2400

Dale H. Twachtmann, Secretary Department of Environmental Regulation 2600 Blair Stone Road

Tallahassee, Florida 32399-2400

Docket for Case No: 88-000117

Orders for Case No: 88-000117