STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CLIFFORD O. HUNTER, )

)

Petitioner, )

)

vs. ) CASE NO. 93-5924

) STATE OF FLORIDA, DEPARTMENT OF ) ENVIRONMENTAL PROTECTION, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to written notice a formal hearing was held in this case before Larry J. Sartin, a duly designated Hearing Officer of the Division of Administrative Hearings, on March 1, 1994, in Perry, Florida.

APPEARANCES

For Petitioner: Clifford O. Hunter, pro se

1410 Ruby Street

Live Oak, Florida 32060

For Respondent: Beth Gammie

Assistant General Counsel Office of the General Counsel Florida Department of

Environmental Protection 2600 Blairstone Road

Tallahassee, Florida 32399-2400 STATEMENT OF THE ISSUE

Whether the Petitioner, Clifford O. Hunter, is entitled to a wetland resource permit.

PRELIMINARY STATEMENT

On June 2,1993, the Petitioner filed an application for a permit with the Respondent, the Florida Department of Environmental Protection (formerly the Department of Environmental Regulation), to rebuild a pile supported house, to construct a bulkhead, to fill 1750 square feet of salt marsh, and to construct a dock. On July 12, 1993, the Respondent issued a Notice of Permit Denial denying the requested permit. On August 18, 1993, the Petitioner filed a Request for Formal Administrative Hearing with the Respondent.

On October 14, 1993, the Respondent filed a Request for Assignment of Hearing Officer and Notice of Preservation of Record with the Division of Administrative Hearings. The matter was designated case number 93-5924 and was assigned to the undersigned.

On December 21, 1993, the Respondent issued a Notice of Correction.

On February 21, 1994, the parties filed a Prehearing Stipulation. The Prehearing Stipulation contains stipulated facts which have been included in this Recommended Order.

At the final hearing, the Petitioner testified on his own behalf and presented the testimony of Ernest Frey, Michael Eaton and John Heber. The Petitioner also offered six exhibits which were accepted into evidence. A ruling on the relevancy of Petitioner's exhibit 5 was reserved.

The Respondent presented the testimony of Steven Sabia, Jeremy Tyler, Kevin Michael Sherman and Michael Eaton. The Respondent offered five exhibits which were accepted into evidence.

A transcript of the final hearing was filed March 25, 1994. Both parties filed a proposed recommended order. A ruling on each proposed finding of fact contained in the proposed orders filed by the parties has been made either directly or indirectly in this Recommended Order, or the proposed finding of fact has been accepted or rejected in the Appendix which is attached hereto.

FINDINGS OF FACT

1. The Parties.

   
   

   1. The Petitioner, Clifford O. Hunter, is the owner of real property located at Dekle Beach, Taylor County, Florida. Mr. Hunter's property is located at lot 53, Front Street, Dekle Beach, within section 22, township 7 south, range 7 east, Taylor County.

      
      

   2. Respondent, the Florida Department of Environmental Protection (hereinafter referred to as the "Department"), is an agency of the State of Florida with responsibility for, among other things, dredge and fill permits involving Florida waters.

      
      

   3. Mr. Hunter lived in a home on his Dekle Beach property until a storm in March of 1993 destroyed the home.

      
      

2. Mr. Hunter's Application for Permit.

   
   

   1. On or about June 2, 1993, Mr. Hunter applied for a wetland resource permit to rebuild his home, construct a bulkhead and fill 1750 square feet of salt marsh. The permit was designated No. 62-232123-2 by the Department.

      
      

   2. Mr. Hunter also sought approval for the construction of a dock. The dock, however, is exempt from the permitting requirements of Rule 17- 312.050(1)(d), Florida Administrative Code.

      
      

   3. On July 21, 1993, the Department issued a Notice of Permit Denial. The Notice of Permit Denial was received by Mr. Hunter.

      
      

   4. On August 13, 1993, Mr. Hunter filed a Request for Formal Administrative Hearing with the Department contesting the denial of his permit application.

      
      

3. The Department's Jurisdiction Over the Proposed Project.

   1. The proposed project involves dredging and filling in the waters of the State of Florida. A wetland resource permit is, therefore, required.

      
      

   2. Wetland jurisdiction of the State of Florida extends to the eastern edge of an existing concrete slab on Mr. Hunter's property from a canal adjacent to Mr. Hunter's northern boundary. The canal connects with the waters of the Gulf of Mexico.

      
      

   3. The Gulf of Mexico surrounding Dekle Beach, except for an area extending 500 feet outward from the town limits of Dekle Beach, is within the Big Bend Seagrasses Aquatic Preserve. The preserve is an Outstanding Florida Water (hereinafter referred to as an "OFW").

      
      

   4. The evidence presented by the Department to support findings of fact 9, 10 and 11 was uncontroverted by Mr. Hunter.

      
      

4. Impact on Water Quality Standards.

   
   

   1. The weight of the evidence failed to prove that the Mr. Hunter has provided reasonable assurances that the proposed project will not lower the existing ambient water quality of waters of the State of Florida. The evidence presented by the Department concerning adverse impacts of the proposed project on water quality standards was uncontroverted by Mr. Hunter.

      
      

   2. Approval of Mr. Hunter's proposed project would allow the placing of fill in an intertidal area and the elimination of the portion of the intertidal area filled.

      
      

   3. Intertidal areas help maintain water quality by acting as a filter for water bodies.

      
      

   4. Mr. Hunter has obtained a variance from the Department of Health and Rehabilitative Services which will allow him to place a septic tank on his property if the permit is granted. The septic tank will leach pollutants.

      Those pollutants will include nutrients, viruses and bacteria. Because the soil around the septic tank is very saturated, filtering of the pollutants will be low. Pollutants will, therefore, leach into the waters of the State of Florida and adversely impact water quality standards of the canal adjacent to Mr.

      Hunter's property. Under such circumstances, Mr. Hunter has failed to demonstrate that the project will not lower existing ambient water quality of waters of the State of Florida.

      
      

5. Public Interest Test.

   
   

   1. Mr. Hunter failed to present evidence to support a conclusion that the proposed project will not be adverse to the public interest. Rather, the unrebutted evidence presented by the Department supports a finding that Mr. Hunter's proposed project will not be in the public interest, especially when the cumulative impacts of the proposed project, discussed, infra, are considered.

      
      

   2. Possible adverse impacts to the public interest include the following:

      1. The septic tank which Mr. Hunter will place in the 1750 square feet of filled area will allow fecal coliform, viruses and pathogens to leach into the waters of the canal adjacent to Mr. Hunter's property. Anyone who enters the canal could be infected from bacteria and viruses leaching from the septic tank.

      2. The conservation of fish and wildlife would also be adversely affected by the adverse impact on water quality and by the elimination of intertidal area.

         
         

      3. Recreational value of the canal would be reduced because of the adverse impact on water quality.

      
      

   3. The proposed project is for a permanent structure.

      
      

6. Cumulative Impact.

   
   

   1. There are a number of applications for permits similar to the application filed by Mr. Hunter which have been filed by property owners of Dekle Beach whose homes were also destroyed by the March 1993 storm.

      
      

   2. If Mr. Hunter's permit application is granted, the Department will have to also grant most, if not all, of the other similar permit applications. Approximately 20 to 30 other applications involve similar requests which will allow the placement of fill and the installation of septic tanks. The resulting fill and use of septic tanks will have a significant cumulative adverse impact on the waters of the State of Florida.

      
      

   3. The cumulative impact from leaching effluent from the septic tanks on the waters of the State could be substantial.

      
      

   4. In addition to the impact on the canal adjacent to Mr. Hunter's property, there will a cumulative negative impact on the ambient water quality of approximately 20 septic tanks on the canals and on the OFW.

      
      

7. Errors in the Department's Notice of Permit Denial.

1. The Notice of Permit Denial issued by the Department contained the following errors:

   1. An incorrect description of Mr. Hunter's lot number and section number;

   2. An incorrect statement that the amount of Mr. Hunter's proposed fill would eliminate 3,200 square feet of marsh;

   3. An incorrect statement that Mr. Hunter proposed to fill his lot for a distance of 64 feet waterward.

   
   

2. The errors contained in the Notice of Permit Denial did not form any basis for the Department's denial of Mr. Hunter's application.

   
   

3. The errors were typographical/word-processing errors. Several notices were being prepared at the same time as the Notice of Permit Denial pertaining to Mr. Hunter. The incorrect information contained in Mr. Hunter's Notice of Permit Denial was information which applied to the other notices.

   
   

4. Other than the errors set out in finding of fact 23, the Notice of Permit Denial was accurate. Among other things, it was properly addressed to Mr. Hunter, it contained the project number assigned by the Department to Mr. Hunter's proposed project and it accurately reflected the Department's decision to deny Mr. Hunter's permit application.

   
   

5. Mr. Hunter responded to the Notice of Permit Denial by requesting a formal administrative hearing to contest the Department's denial of his application.

6. On December 20, 1993, Mr. Hunter received a letter from the Department which corrected the errors contained in the Notice of Permit Denial. The corrections were also contained in a Notice of Correction filed in this case by the Department on December 20, 1993.

   
   

7. The Notice of Permit Denial was received by Mr. Hunter within 90 days after his application was filed.

   
   

8. The corrections to the Notice of Permit Denial was received by Mr. Hunter more than 90 days after his application was filed.

   
   

   CONCLUSIONS OF LAW

   
   

   1. Jurisdiction.

      
      

9. The Division of Administrative Hearings has jurisdiction of the parties to and the subject matter of this proceeding. Section 120.57(1), Florida Statutes (1993).

   
   

   1. Burden of Proof.

      
      

10. The burden of proof, absent a statutory directive to the contrary, is on the party asserting the affirmative of the issue of the proceeding. Antel v. Department of Professional Regulation, 522 So.2d 1056 (Fla. 5th DCA 1988); Department of Transportation v. J.W.C. Co., Inc., 396 So.2d 778 (Fla. 1st DCA 1981); and Balino v. Department of Health and Rehabilitative Services, 348 So.2d

    249 (Fla. 1st DCA 1977).

    
    

11. In this proceeding it is the applicant, Mr. Hunter, that has the ultimate burden of proof. Therefore, Mr. Hunter was required to establish by a preponderance of the evidence that he is entitled to the requested permit.

    J.W.C. Co., supra; and Rule 17-103.130, Florida Administrative Code.

    
    

12. At the commencement of the final hearing of this case, Mr. Hunter was informed by the undersigned that he had the burden of proof. Mr. Hunter was informed that this meant that he was required to prove his entitlement under Florida law to the permit he was seeking. He was also informed that the Department was not required to prove that the permit should not be issued. Mr. Hunter failed to meet his burden of proof.

    
    

    1. Standing.

       
       

13. The evidence presented by Mr. Hunter proved that he has standing to institute this proceeding.

    
    

    1. The Evidence Failed to Prove that the Project Should be Approved.

       
       

14. The permit sought in this proceeding is a permit to allow dredging and filling in an area over which the State of Florida has jurisdiction. Chapter 373, Florida Statutes (1993), and Chapters 17-4, 17-301, 17-302 and 17-312, Florida Administrative Code.

    
    

15. In order for a permit to be issued to Mr. Hunter, he was required to prove that the requirements of Section 373.414(1), Florida Statutes (1993), and Rule 17-4.242, Florida Administrative Code, have been met.

16. Section 373.414(1), Florida Statutes (1993), requires that applicants provide reasonable assurances: (1) that the existing ambient water quality of any Florida waterbody impacted will not be lowered; and (2) that, if the project will significantly degrade an OFW, the project will be in the public interest.

    
    

17. Mr. Hunter failed to provide reasonable assurances that the existing ambient water quality of the canal adjacent to Mr. Hunter's property and the OFW located 500 feet from the boundary of Dekle Beach will not be lowered.

    
    

18. Even though not required to do so, the Department presented sufficient evidence to prove that ambient water quality will be lowered as a result of the elimination of intertidal wetlands and the impact of a septic tank on Mr. Hunter's property on water quality in the canal and the OFW.

    
    

19. Section 373.414(1)(a), Florida Statutes, establishes the following criteria which must be considered and balanced in determining whether a project is clearly in the public interest:

    
    

    1. Whether the activity will adversely affect the public health, safety, or welfare or the property of others;

    2. Whether the activity will adversely affect the conservation of fish and wildlife, including endangered or threatened species, or their habitats;

    3. Whether the activity will adversely affect navigation or the flow of water or cause harmful erosion or shoaling;

    4. Whether the activity will adversely affect the fishing or recreational values or marine productivity in the vicinity of the activity;

    5. Whether the activity will be of a temporary or permanent nature;

    6. Whether the activity will adversely affect or will enhance significant historical and archaeological resources under the provisions of s. 267.061; and

    7. The current condition and relative value of functions being performed by areas affected by the proposed activity.

       
       

20. Rule 17-312.080, Florida Administrative Code, provides that if the ambient water quality of an OFW is lowered, then the OFW is "significantly degraded." The evidence in this case proved that Mr. Hunter's project will lower the ambient water quality of the an OFW. Therefore, Mr. Hunter was required to provide reasonable assurance that, based upon a balanced consideration of the relevant criteria of Section 373.414(1)(a), Florida Statutes, his proposed project is clearly in the public interest. Mr. Hunter failed to provide assurances that his project is clearly in the public interest.

    
    

21. The evidence presented by the Department proved that the proposed project in fact will negatively impact the public interest based upon five of the seven criteria of Section 373.414(1)(a), Florida Statutes (1993), which apply to Mr. Hunter's project: sections 1, 2, 4, 5 and 7.

    
    

22. Mr. Hunter's project is not clearly in the public interest.

    1. Opportunity to Rebuild.

       
       

23. In his proposed recommended order, Mr. Hunter has argued that he should be granted the permit so that he can rebuild a home where he has lived since 1962. He has suggested that the "State of Florida" is denying him this right because the State wants to take his property.

    
    

24. The difficulty with these arguments is that the statutes under which the Department must operate do not provide for the application of the criteria governing the issuance of dredge and fill permits any differently when the permit involves the rebuilding of a structure. The same criteria must be applied to new construction and reconstruction absent a directive by the Legislature to the contrary.

    
    

25. Additionally, Mr. Hunter failed to prove that the State of Florida has some ulterior motive in this case. The evidence failed to prove that the State, through the Department, is interested in purchasing Mr. Hunter's property. Although Ernest Frey, Director of District Management, Northeast District Office of the Department, did ask Mr. Hunter whether he wanted to sell his property to the State, the evidence failed to prove why Mr. Frey asked this question, that Mr. Frey asked the question in his official capacity with the Department, or that Mr. Frey made the inquiry at the direction or on behalf of the Department or the State. More importantly, the evidence failed to prove that the Department denied the permit sought by Mr. Hunter because of any interest the State may have in purchasing Mr. Hunter's property.

    
    

    1. Default Permit.

    
    

26. Mr. Hunter has argued that he is entitled to a default permit pursuant to Rule 17-312.060, Florida Administrative Code. Pursuant to this rule, the Department is required to "approve or deny" applications within 90 days after the application becomes complete.

    
    

27. The evidence in this case proved that the Department made its decision to "deny" Mr. Hunter's application within 90 days. The evidence also proved that the Department informed Mr. Hunter that his application was denied within

90 days. Although some of the information contained in the Notice of Permit Denial was not accurate, the evidence failed to prove that the Department did not "deny" the application or inform Mr. Hunter of the "denial" within the time required. Even Mr. Hunter did not maintain that he did not know that his application had been denied when he received the Notice of Permit Denial.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Environmental Protection enter a Final

Order dismissing the petition in this case and denying the issuance of permit

number 62-232123-2 to Clifford O. Hunter.

DONE AND ENTERED this 26th day of April, 1994, in Tallahassee, Florida.

LARRY J. SARTIN

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 26th day of April, 1994.

APPENDIX

The parties have submitted proposed findings of fact. It has been noted below which proposed findings of fact have been generally accepted and the paragraph number(s) in the Recommended Order where they have been accepted, if any. Those proposed findings of fact which have been rejected and the reason for their rejection have also been noted.

Mr. Hunter's Proposed Findings of Fact

1. Accepted in 1 and 3.

2. Accepted in 2.

3. Accepted in 4.

4. Although Ernest Frey, Director of District Management, Northeast District Office of the Department, did ask Mr. Hunter whether he wanted to sell his property to the State, the evidence failed to prove why Mr. Frey asked this question, that Mr. Frey asked the question in his official capacity with the Department, or that Mr. Frey made the inquiry at the direction or on behalf of the Department or the State. More importantly, the evidence failed to prove that the Department denied the permit sought by Mr. Hunter because of any interest the State may have in purchasing Mr. Hunter's property.

5. See 4.

6-8 No relevant.

1. Not supported by the weight of the evidence.

2. Accepted in 6, 23, 28 and 30.

3. Not a proposed finding of fact.

4. See 8. The "aerial photo, Petitioner's exhibit 6, does not show "No vegetation behind the slab, nearly to the Mean High Water Line . . . ." Respondent's exhibit 3 does, however, show vegetation as testified to by Department witnesses.

13-14 Not supported by the weight of the evidence.

1. Not a proposed finding of fact.

2. Generally correct. Mr. Hunter was not properly put on notice of "alternatives" by the Notice of Permit Denial, as corrected, issued by the Department.

Summation: Mr. Hunter's Summation was considered argument and was considered in this case.

The Department's Proposed Findings of Fact

1. Accepted in 1 and 3.

2. Accepted in 2.

3. Accepted in 1 and 4-5.

4. Accepted 6-7.

5. Accepted in 8.

6-9 Hereby accepted.

1. Accepted in 12.

2. Accepted in 13.

3. Accepted in 14.

4. Accepted in 15.

5. Accepted in 19.

6. Accepted in 20.

7. Accepted in 15.

17-18 Accepted in 15 and hereby accepted.

1. Accepted in 15 and 20-21.

2. Accepted in 10.

3. Accepted in 22.

4. Hereby accepted.

5. Accepted in 22.

6. Accepted in 12.

7. Accepted in 15-16.

8. Accepted in 17 and 21. 27-28 Accepted in 17.

1. Accepted in 18.

2. Accepted in 13.

3. Accepted in 16.

32-33 The Notice of Permit Denial, as corrected, did not put Mr.

Hunter on notice that the alternatives raised by the Department at the final hearing would be an issue in this case. Those alternatives should not, therefore, form any basis for the Department's final decision.

1. Accepted in 24-25.

2. Accepted in 23.

3. Accepted in 25.

4. Accepted in 24 and hereby accepted.

5. Accepted in 26.

COPIES FURNISHED:

Clifford O. Hunter 1410 Ruby Street

Live Oak, Florida 32060

Beth Gammie

Assistant General Counsel

Department of Environmental Protection Twin Towers Office Building

2600 Blair Stone Road Tallahassee, Florida 32399-9730

Virginia B. Wetherell, Secretary Department of Environmental Protection Twin Towers Office Building

2600 Blair Stone Road Tallahassee, FL 32399-2400

Kenneth Plante, Esquire General Counsel

Department of Environmental Protection Twin Towers Office Building

2600 Blair Stone Road Tallahassee, FL 32399-2400

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions to this Recommended Order. All agencies allow each party at least 10 days in which to submit written exceptions. Some agencies allow a larger period within which to submit written exceptions. You should contact the agency that will issue the final order in this case concerning agency rules on the deadline for filing exceptions to this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the final order in this case

Docket for Case No: 93-005924

Orders for Case No: 93-005924