vs. ) CASE NO. 88-6109
Respondent. )
Formal hearing in the above-styled action was held in Orlando, Florida, on March 28, 1989, before Mary Clark, Hearing Officer from the Division of Administrative Hearings.
For Petitioner: Michael D. Jones, Esquire
For Respondent: Vivian F. Garfein, Esquire
This proceeding commenced with Petitioner's timely request for a formal Section 120.57(1) F.S. hearing in response to the Department of Environmental Regulation's (DER) Final Order denying her application for a fill permit, DER file number 48-145971-4.
At the commencement of the hearing, argument was considered on Respondent's motions for more definite statement and for an order in limine. Both motions were denied as they had become essentially moot by Petitioner's unilateral prehearing statement filed on March 17, 1989.
In support of its application, Petitioner submitted the testimony of the following witnesses: Ronald Vatalaro, Barbara Bess, Pamela Thomas, and William Michael Dennis. Dr. Dennis was accepted as an expert in biology, botany and DER dredge and fill rules. Petitioner's exhibits #1-13 were received into evidence.
DER presented the testimony of Nicholas Sassic; David Kriz, accepted as an expert in hydrology, hydraulics, and DER jurisdiction based on hydrology; Pamela
Thomas, who was accepted as an expert in the determination of DER dredge and fill jurisdiction and the effects of dredge and fill activities on waters of the state; and Barbara Bess, an expert in biology, water quality standards and effects of dredge and fill activities on waters of the state. DER's exhibits
#1-15 were received into evidence.
After the hearing and the preparation and filing of the transcript, DER submitted a proposed recommended order, including proposed findings of fact and conclusions of law. The proposed findings of fact are substantially adopted in this recommended order.
The issues for determination in this proceeding are whether DER properly asserts jurisdiction over the site in question, and whether Petitioner (Vatalaro) is entitled to a permit to fill that site.
Sometime in 1986, Billie Vatalaro purchased approximately eleven acres within an approximately 20-acre wetland contiguous to Lake Rouse in east Orange County, Florida. Approximately five acres of the Vatalaro parcel are in the lake itself.
In June 1987, personnel from Orange County's planning department and environmental protection department visited the site in response to reports of illegal filling. Correspondence ensued, and meetings were held among Mrs. Vatalaro and her sons and the staff from Orange County.
In the meantime, some activity on the site continued, including clearing of trees and vegetation and sometime in January 1988, Mrs. Vatalaro obtained from the Orange County building department building permits and septic tank permits for two houses on approximately 1/2 acre of the property.
In early February 1988, the Orange County Environmental Protection Department requested the involvement of DER.
Jurisdiction
Pamela Thomas is an environmental specialist with DER in the Orlando office. She first visited the site on February 8, 1988, with DER's enforcement officer, a staff person from Orange County, Mrs. Vatalaro, and Mrs. Vatalaro's sons, Russ and Ron Vatalaro. She performed a jurisdictional determination on the occasion of that visit, and returned for subsequent visits on July 20, 1988 and February 22, 1989.
Jurisdictional determinations were made pursuant to Rule 17-4.022
F.A.C. (Since renumbered as 17-3.022). This required locating the water body of the state, Lake Rouse, and a determination of whether there is a connection of the water body to the adjacent wetlands. The vegetation is then examined to determine whether canopy, sub-canopy or ground cover will be analyzed. Within the rule are two tests, one used when submerged species predominate, the other used when the wetland vegetation is more transitional.
Ms. Thomas located Lake Rouse and found no berms or other barriers between the lake and the wetlands. She also performed transects, visually sampling segments of the area and determined there was continuity between the
lake and landward to the site in question. She found a full mature canopy in the uncleared area and loblolly bay, a submerged species, dominated. This area, between the lake and cleared site met the first ("A") test in Rule 17-4.022,
F.A.C. The submerged plus transitional species were greater than 50 percent of the vegetation, the submerged species was greater than 10 percent and exceeded the upland species present.
Because a portion of the area had been cleared, it was necessary to attempt to reconstruct what vegetation had existed prior to clearing. The cleared area included tall spindly pine trees spaced to indicate that other trees had been growing between them. The pine trees which did not have fill next to them were sitting on hummocks, a common phenomena in wetlands.
Within the disturbed area Ms. Thomas found two bore holes where previous soil borings had been done. She and the DER enforcement officer determined by examining those holes that substantial fill had been placed in the cleared area. Root mat was more than ten inches below the surface and water was standing in the bottom of the holes.
In order to reconstruct what vegetation had been present in the cleared area, Ms. Thomas completed a series of three feet by ten feet visual transects fanning out into the thicket from the cleared area. The dominant species were Ioblolly bay (gordonia), sweet bay and dahoon, all submerged species. It was apparent that the predominance of trees that had been removed were submerged species, mainly Ioblolly bays. As reconstructed, the biomass in a transect would have been greater than the sum of the biomass of the pine trees.
This reconstruction was further validated on subsequent visits to the site when juvenile loblolly bay trees were found seeded and thriving in the disturbed area, but no pine seedlings were found, even though there was adequate time for that to occur.
DER staff also viewed aerial photographs provided by the Valataros, taken in 1984, prior to major clearing and in 1987, after the clearing. The photographs are on a scale of 1 to 300 and do not indicate a drastic change in the area that would reflect that the cleared area had been mostly pine trees. The photographs are not of such quality that a conclusive determination can be made on them alone.
David Kriz is an area resource soil scientist with the U. S. Department of Agriculture Soil Conservation Service. He visited the site with representatives of DER and Mrs. Vatalaro on July 20, 1988, at the request of DER.
He performed three soil borings, the first in an area of bay trees outside the area cleared for the house. This boring revealed Samsula muck, a hydric soil, indicative of being saturated or flooded.
The second boring was taken within the area designated for the house pad.
This yielded about fifteen inches of fill, then St. Johns soil, an organic sandy layer, which can be hydric if inundated for more than thirty days in a year. It was impossible to determine whether this specimen was hydric, because this surface had been disturbed and filled.
The third boring was taken just off the pad, but still in the cleared area.
It yielded about nine inches of sandy fill and Samsula muck below, similar to the first boring, and clearly a hydric soil.
St. Johns fine sand also appears on the site in a USDA soil conservation map of Orange County. The map is a good guide, but cannot be relied upon without ground tests in specific sites as the scale on the map is 1 to 20,000. Although distinct soil zones are indicated, in fact there are transitional areas between soil types in the zones, which means that in a transitional zone there may be either wet or dry areas. It would be virtually impossible to determine the soil type prevalent in Mrs. Vatalaro's cleared half acre, without the borings.
DER properly concluded that it has jurisdiction over the site.
Petitioner's expert, William Dennis, concedes that most of the Vatalaro property is within DER's jurisdiction, including a substantial portion of the cleared area, most notably the 43 by 100 foot cleared finger extending south from the cleared area designated for the house. In performing his jurisdictional analysis, Dr. Dennis concentrated on the cleared area. He did not complete transects. He counted and measured trees, and with the aid of a compass, sited them on a chart, received in evidence as Petitioner's exhibit #13. Within the cleared area he found a predominance of pines, and upland species (71%) and some submerged and transitional species (4.8% and 24.2%, respectively). This, he concluded, failed the jurisdictional test described in paragraph 7, above.
Dr. Dennis also examined the aerial photographs and determined there was a vegetation break extending approximately 30 feet into the thicket from the northwest corner of the cleared area. He counted and measured trees in that area and found 14.8% submerged species, 35.4% transitional species, and 49.8% upland species. That area failed the jurisdictional "A" test because the submerged species did not outnumber the upland species present.
Extrapolating from this finding, he concluded that the upper part of the cleared area designated for placement of the house, is outside of DER's jurisdiction.
This conclusion is unreliable. The aerial photographs, particularly the pre-clearance photographs from 1984, are not crisp and clear. It is also possible that in looking at an aerial photograph, the tallest trees, the pines, would overshadow the other species which are also four inches or greater in diameter breast height (DBH) and are, therefore, equally significant.
Rule 17.4.022(1)(c), F.A.C. provides that belt transects be used when the line demarcating the landward extent of waters of the state cannot be determined visually or by photo interpretation. DER, but not Mr. Dennis, relied on belt transects.
Rule 17.4.022(I)(d), F.A.C. provides that other methods may be used as long as the department and applicant both agree in writing, to the method used. DER did not agree with Dr. Dennis' method.
Counting trees in an area that has been disturbed is not a reliable means of establishing what existed prior to clearance when substantial evidence suggests that the clearing left the pines but eliminated the predominant submerged and transitional species.
Section 403.8171(5), F.S. provides a "back-stop" to the vegetative jurisdictional determination by providing that "...in no case shall [the landward extent of the waters of the state] extend above the elevation of the 1- in-10-year recurring flood event or the area of the land with standing or flowing water for more than 30 consecutive days per year calculated on an average annual basis, whichever is more landward."
The petition in this proceeding raised the issue of the jurisdictional backstop but the application and evidence at a hearing fails to include sufficient information to substantiate that this alternative applies.
Generally, a study would be required, and the applicant has not provided such.
The Merits of the Application
The wetland contiguous to Lake Rouse, within which the Vatalaro property is located, comprises approximately 20 acres. It is the only mature forested wetland of its quality within a large region of east Orange County.
This wetland provides a filtration function contributing to the water quality of Lake Rouse and to the waters of the region.
The Lake Rouse wetland also provides flood abatement capacity via its soil and plants. The effects of the loss of this capacity in other severely impacted wetlands along the State Road 50 corridor have become evident. The altered areas are no longer able to provide water holding capacities.
Wildlife which are residents of the area and which use the area as a stopover will be impacted by alteration of the habitat which they currently rely upon for food, cover, nesting and resting. Examples of those wildlife are ducks and other birds, raccoons, deer and opossums.
Even though the proposed project will comprise only 1/2 to 3/4 an acre of the wetland, the impact is significant considering the unique quality of the wetland.
Dr. Dennis agrees that alteration of the site would change the habitat value of the area and would impact the functions of the wetlands. He argues, however, that the effects of this project are minimal compared to the development which has already occurred in surrounding areas.
Although the applicant has a building and septic tank permit and a Corps of Engineers permit, the regulations for those permits are not the same as the balancing criteria which DER must consider. The Orange County Planning and Environmental Protection Departments recommend denial of the project.
No evidence was presented with regard to mitigation proposed or agreed to by the applicant.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the subject matter and parties to this proceeding pursuant to Section 120.57(1), F.S.
Section 403.817(2), F.S. grants DER the authority to establish by rule the methods for determining the landward extent of the waters of the state for regulatory purposes.
DER adopted the methods in Rule 17-4.022, F.A.C. and the legislature ratified the rule, with several non-relevant changes, in Section 403.8171, F.S.
Rule 17-4.022 FAC provides in pertinent part:
17-4.022 Determination of the Landward Extension of Surface Waters of the State.
The line demarcating the landward extent of surface waters, as defined in Section 403.817, F.S., shall be established for any water body, pursuant to Section 403.817, F.S., by dominant plant species.
Dominance shall be determined in a plant stratum (canopy, subcanopy, or ground cover) The canopy is composed of all woody plants with a trunk 4 inches or greater in diameter at breast height (dbh). Dbh is measured at
4.5 feet above the ground. The subcanopy is composed of all woody plants with a trunk or stem dhb between 1 and 4 inches and a height greater than 3 feet. The ground cover includes all other plants. The top stratum shall be used in determination of dominance unless the top stratum constitutes less than 10% areal extent or unless a preponderance of the evidence establishes that the top stratum is not indicative of normal hydrologic conditions, for example, as a result of artificial alteration. In these cases a more representative stratum shall be used. The burden of proof shall be with the party asserting that a stratum other than the top stratum should be used to determine dominance.
The existence of a surface water, as defined in Section 403.031, F.S., shall first be identified. Vegetation shall then be inspected moving landward. In all cases the department shall attempt to locate the line demarcating the landward extent of waters of the state by visual methods or by aerial photointerpretation. The line demarcating the landward extent of the waters shall be the boundary of the area where, using the submerged and transitional species listed in paragraphs (2) and (3) below:
the areal extent of submerged and transitional species or any combination thereof, in the selected stratum, is greater than 50% of all the plant species for that stratum, and
the areal extent of the submerged
species in the selected stratum is greater than 10% of the areal extent of all the plant species in that stratum, and
the areal extent of the submerged species in the selected stratum is greater than the areal extent of upland species in that stratum.
The landward extent of a surface water shall include any other area where:
the areal extent of the transitional species in the selected stratum is greater than 80% of all the plant species in that stratum, and
the areal extent of the submerged species in the selected stratum is less than
10% of all the plant species in that stratum, and
the areal extent of the upland
species in the selected stratum is less than 10% of all plant species in that stratum, and
the department establishes by
competent, substantial evidence by using such factors as hydrology, swollen buttresses, lichen lines, or other indicators that the area is subject to regular and periodic inundation.
If the line demarcating the landward extent of waters of the state cannot be determined visually or by aerial photointerpretation, the following methods shall be used in a manner that ensures sufficient representative data will be generated. The percentages generated shall be substituted for areal extent in paragraph
(a) or (b) above.
1. In areas where a canopy is used, a
series of belt transects shall be established and divided into intervals. Dominance will be determined by relative basal area.
Relative basal area in the canopy shall be recorded as submerged, transitional or upland within each interval as follows:
Total basal area of submerged, transitional
Relative Basal Area = or upland species. x 100
Total basal area of all species.
* * *
Rule 17-4.022, F.A.C. also classifies various vegetative species as "submerged", "transitional" or "upland".
Sections 403.91 - 403.929, F.S. are the "Warren S. Henderson Wetlands Protection Act of 1984".
Section 403.913, F.S. provides, in pertinent part:
403.913 Determination of jurisdiction over surface waters; criteria; when permits required.--
No person shall dredge or fill in, on, or over surface waters without a permit from
the department, unless exempted by statute or department rule.
The landward extent of waters shall be determined as provided in Section 403.817, except that the department may exert its jurisdiction to the ordinary or mean high- water line of waters whenever the landward extent, if determined in accordance with Rule 17-4.022, Florida Administrative Code, occurs waterward of the ordinary or mean high-water line. The determinations made pursuant to this subsection shall be to establish the regulatory jurisdiction of the department and are not intended to be a delineation of the boundaries of lands for purposes of title.
When the department determines its jurisdiction based on dominant vegetation, the permit application or person requesting the jurisdictional determination, at his option, may request that the department, in cooperation with the United States Department of Agriculture Soil Conservation Service, determine whether hydric soils at the site corroborate the finding of jurisdiction based on vegetation. A request by an applicant that a soils assessment be made pursuant to this section shall toll the 90-day time period provided in Section 403.0876 to approve or deny the permit; that times shall begin to run again upon receipt by the department of the information provided by the Soil Conservation Service. When the soils assessment indicates the presence of hydric soils in conjunction with dominant vegetation, the department shall be presumed to have jurisdiction. When the soils assessment indicates the absence of hydric soils, the department shall be presumed not to have jurisdiction.
* * *
The department properly established its jurisdiction in this case pursuant to the above.
Its reliance on extensive transects, its review of soil borings and its observance of the remaining vegetation and recent seedlings in the area already cleared and filled were more persuasive than the applicant's reliance on the areal extent of trees left standing in the cleared area and those found in a small area of the uncleared thicket. It would be unconscionable to presume an
applicant could frustrate DER's ability to perform a valid jurisdictional determination by clearing an area of evidence needed for that determination.
Rule 17-4.022(6). F.A.C. provides the method of determining jurisdiction based on the 10-year recurring flood event:
(6) In no case shall the landward extent of waters of the state extend above the elevation of the one in 10-year recurring flood event or the area of land with standing or flowing water for more than 30 consecutive days per year calculated on an average annual basis, whichever is more landward. The extent of the flood line shall be developed by appropriate engineering techniques, and a description of the surveyed line shall be prepared and certified by a professional land surveyor registered in this state. The burden for determining the surveyed flood line shall be with the party wishing to use this alternative. Notwithstanding the above, this subsection shall not apply to waters which are saline or brackish, or for rivers whose major source of flow is from springs. The provisions of this subsection shall not operate to reduce the landward extent of the jurisdiction of the department as it existed prior to January 24, 1984.
This alternative was raised by the applicant, but was not pursued.
Section 403.918, F. S., provides, in pertinent part: 403.918 Criteria for granting or denying
permits.--
A permit may not be issued under Sections 403.91-403.929 unless the applicant provides the department with reasonable assurance that water quality standards will not be violated. The department, by rule, shall establish water quality criteria for wetlands within its jurisdiction, which criteria give appropriate recognition to the water quality of such wetlands in their natural state.
A permit may not be issued under Sections 403.91-403.929 unless the applicant provides the department with reasonable
assurance that the project is not contrary to the public interest. However, for a project which significantly degrades or is within an Outstanding Florida Water, as provided by department rule, the applicant must provide reasonable assurance that the project will be clearly in the public interest.
In determining whether a project is
not contrary to the public interest, or is clearly in the public interest, the department shall consider and balance the following criteria:
Whether the project will adversely affect the public health, safety, or welfare or the property of others;
Whether the project will adversely
affect the conservation of fish and wildlife, including endangered or threatened species, or their habitats;
Whether the project will adversely affect navigation or the flow of water or cause harmful erosion or shoaling;
Whether the project will adversely affect the fishing or recreational values or marine productivity in the vicinity of the project;
Whether the project will be of a temporary or permanent nature;
Whether the project will adversely
affect or will enhance significant historical and archaeological resources under the provision of Section 267.061; and
The current condition and relative value of functions being performed by areas affected by the proposed activity.
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.
* * *
The applicant presented no competent affirmative evidence that the project is not contrary to the public interest. The applicant's de minimis argument is plainly antithetical to Section 403.919, F.S., which requires that the department consider, not only the impacts of the project itself, but also other existing or approved projects.
The applicant has failed to meet its burden of proving entitlement to the permit which it seeks. Florida Department of Transportation v. J.W.C., Inc.
396 So.2nd 778 (Fla 1st DCA 1981).
That a Final Order be entered denying the application for fill permit. DONE and RECOMMENDED this 26th day of May, 1989, in Tallahassee, Florida.
Filed with the Clerk of the Division of Administrative Hearings this 26th day of May, 1989.
Michael D. Jones, Esquire 996 Westwood Square
Vivian F. Garfein, Esquire Department of Environmental
Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32399-2400
Daniel H. Thompson, Esquire General Counsel
Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32399-2400
