STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

STANLEY A. FERGUSON, )

)

Petitioner, )

)

vs. ) CASE NO. 93-5970

) STATE OF FLORIDA DEPARTMENT ) OF ENVIRONMENTAL PROTECTION, )

)

Respondent. )

)

RECOMMENDED ORDER

Upon due notice, the Division of Administrative Hearings, by its duly assigned Hearing Officer, William R. Cave, conducted a formal hearing in the above-captioned matter on February 25, 1994, in Bunnell, Florida.

APPEARANCES

For Petitioner: Stanley Ferguson, pro se

Route 1, Box 21A-1R Bunnell, Florida 32110

For Respondent: Donna M. La Plante, Esquire

Florida Department of Environmental Protection

2600 Blair Stone Road Tallahassee, Florida 32399-2400

STATEMENT OF THE ISSUE

Whether the Petitioner should be granted a permit to clear and place fill on 0.23 acres of Lot 5, in Block 85 of Daytona North subdivision for the purpose of creating sufficient uplands for a single family dwelling, septic tank system and drainfield.

PRELIMINARY STATEMENT

On March 8, 1993, the Petitioner filed an application with the Department of Environmental Protection (Department) [formerly the Department of Environmental Regulation] for a permit to clear and to place fill within 0.23 acres [approximately 10,000 square feet] of hardwood swamp which is connected by large drainage ditches to Bull Creek described as Lot 5, in Block 85 of Daytona North subdivision. After a review of the Petitioner's application, the Department, on July 30, 1993, issued its Notice of Permit Denial because the Petitioner's proposed project failed to provide the Department with the reasonable assurances required under Section 373.414(1), Florida Statutes [formerly Section 403.918(1)and (2), Florida Statutes]. On August 16, 1993, the Department received Petitioner's Petition For Administrative Hearing, contesting the Department's decision to deny Petitioner's permit application number DF

182280792. The Department referred this matter to the Division of Administrative Hearings on October 20, 1993, for the assignment of a hearing officer and the conduct of a formal hearing.

At the hearing, the Petitioner testified on his own behalf but presented no other witnesses. The Petitioner exhibit 1 was received as evidence in this case at the hearing. Petitioner was allowed to late file a series of photographs numbered 1-23 as Petitioner's composite exhibit 2 which was received as evidence in this case March 11, 1994. The Department presented the testimony of Jeremy Tyler and Steve Sabia. The Department's exhibits 1 and 2 were received as evidence in this case.

There was no transcript of this proceeding filed with the Division of Administrative Hearings. The Department timely filed its Proposed Recommended Order. The Petitioner elected not to file any proposed findings of fact or conclusions of law. A ruling on each proposed finding of fact submitted by the Department has been made as reflected in an Appendix to the Recommended Order.

FINDINGS OF FACT

Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings of fact are made:

1. Petitioner is the owner of a parcel of real property located in Section 17, Township 12 South, Range 29 East at Lot 5, Block 85, in the Daytona North Subdivision, west of the town of Bunnell in Flagler County, Florida.

   
   

2. The Department is the agency of the State of Florida that is authorized to issue permits to dredge and fill wetlands pursuant to Chapter 373, Florida Statutes. It is successor to the Department of Environmental Regulation.

   
   

3. On March 8, 1993, the Petitioner filed an application with the Department for a permit to clear and fill within 0.23 acres [approximately 10,000 square feet] of hardwood swamp which is connected by large drainage ditches to Bull Creek. The property subject to the application for a permit to fill is a portion of that property described in Finding of Fact 1.

   
   

4. The purpose of obtaining a permit to fill was to create sufficient uplands upon which to construct a single family dwelling with a septic tank system, including a drainfield.

   
   

5. Following a review of Petitioner's application, the Department issued its Notice Of Permit Denial on July 30, 1993. The denial was based on the Petitioner's proposed project failing to provide the Department with the reasonable assurances required by Section 373.414(1), Florida Statutes [formerly Section 403.918(1) and (2), Florida Statutes]

   
   

6. While there are some pine trees scattered throughout the area, including the Petitioner's lot, the area does not appear to be what is commonly referred to as longleaf or slash pine flatwoods because the understory (undergrowth) is not dominated by saw palmetto, even though Petitioner's composite exhibit 2 (photographs of area) reflects a patch or two of saw palmetto. The area is dominated by understory that tends to thrive in soil that, while not always covered with water, is usually saturated with water. Additionally, the more predominant trees in the area are hardwood [gums, etc.] and cypress which tend to thrive in soil that is saturated with water.

7. The upper surface of the soil in the area, including the Petitioner's property, is peat or muck which tends to be saturated with water and has very little percolation.

   
   

8. To the north and east of the subdivision are potato and cabbage fields, drainage from which is routed through the subdivision in large agricultural drainage ditches.

   
   

9. Petitioner's property backs up to a large drainage canal, which is one of many canals in the subdivision connected to these even larger agricultural drainage canals.

   
   

10. Water from these many canals flows into Bull Creek, Class III waters, and from Bull Creek to Dead Lake and then into Crescent Lake.

    
    

11. There is sufficient evidence to establish facts to show that the Petitioner's property comes within the definition of wetlands as defined in Section 373.019(17, Florida Statutes, which are connected to waters of the state as defined in Section 373.019(8), Florida Statutes. Therefore, the Petitioner's proposed project is not exempt from permitting and requires a dredge and fill permit for the proposed construction.

    
    

12. Water quality in Bull Creek and in the receiving waters of Dead Lake and Crescent Lake has been degraded as a result of agricultural runoff from nearby farms. This runoff, containing nitrogen and phosphorus, the main components of fertilizer, is routed through the ditch system in the subdivision directly into receiving waters of Bull Creek, Dead Lake and Crescent Lake. Agricultural runoff from these sources has resulted in water quality violations for nitrogen, phosphorus, bacteria and benthic macroinvertebrates in Bull Creek Canal; and for nitrogen, phosphorus and dissolved oxygen in Dead Lake and Crescent Lake.

    
    

13. This subdivision contains approximately 800 lots located in wetlands. It is anticipated that if dredge and fill permits were available for development, then the lots located in the wetlands would develop first due to the difference in price between the lots located in the wetlands as opposed to lots located in the upland.

    
    

14. It was the Department's testimony that this was the first application received by the Department to place fill in wetlands in the subdivision. However, photographs 22 and 23 of Petitioner's composite exhibit 2 reflect that there are houses in the wetlands area of the subdivision that appear to be located on wetlands that have been filled, with a septic tank system located on the filled area.

    
    

15. Petitioner's proposed project is permanent in nature, and any wetlands that were filled as a result of this project would be lost to the system. Likewise, any other lots located in the wetlands area of the subdivision that were developed would also be lost to the system.

    
    

16. Assuming that the lots in the wetlands area of the subdivision were developed as the Department anticipates, then there would be a permanent loss to the system of a large area of wetlands which would result in a loss of the wetlands filtering system. Without this filtering system, there would be a decrease in the nutrient uptake which could create algal blooms and deplete dissolved oxygen levels, thus further degrading water quality resulting in a long term water quality violation.

17. Due to nature of the surface of the soil located in the wetlands area of the subdivision and its lack of permeability, the effluent from the septic tank system would likely fail to percolate below the fill. This failure to percolate would likely result in a lateral flow of the effluent towards the drainage ditches located within the subdivision which flow into the agricultural drainage canals and eventually into Bull Creek to Dead Lake to Crescent Lake, thus further degrading water quality resulting in a along term water quality violation.

    
    

18. Development of the wetlands area of the subdivision would adversely affect the conservation and productivity of fish by further degrading the already poor water quality of Bull Creek and Dead Lake.

    
    

19. While the proposed project's effect on the habitat and functioning of the wetlands area of the subdivision or the water quality may be minimal, it is the adverse cumulative impact the proposed project would have, by "opening the door", so to speak, on other permit applications for dredge and fill in the wetlands area of the subdivision that is the main concern.

    
    

    CONCLUSIONS OF LAW

    
    

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

    
    

21. The Department has jurisdiction over the proposed project under Chapter 373, Florida Statutes, wherein criteria and standards for issuing dredge and fill permits for wetlands are set forth, as well as in the rules promulgated thereunder. However, the Department has the burden to show that the area over which it seeks to exercise jurisdiction falls within the scope of Chapter 373, Florida Statutes. Therefore, in an evidentiary hearing the Department has the initial burden of making a prima facie factual showing of jurisdiction. Then the burden of going forward shifts to the party alleging the area to be non- jurisdictional to rebut the Department's prima facie showing with factual evidence of equivalent quality. Florida Department of Transportation vs. J. W.

    C. Co., Inc., 396 So.2d 778 (1 DCA Fla. 1983). In a permit denial case, such as the instant case, once the issue of jurisdiction is resolved, the applicant has the ultimate burden to establish by a preponderance of the evidence entitlement to the requested permit. Florida Department of Transportation vs. J. W. C. Co, Inc., 396 So.2d 778 (1 DCA Fla. 1983); Rule 17-103.130(1), Florida Administrative Code; See also, Young vs. State, Department of Community Affairs, 625 So.2d 831 (Fla. 1993). The Department has made a prima facie factual showing of jurisdiction. The Petitioner has failed to rebut the Department's prima facie factual showing of jurisdiction. The Department has jurisdiction over the Petitioner's proposed project to require a dredge and fill permit.

    
    

22. The Petitioner has likewise failed to present sufficient evidence to establish facts to provide the Department with the reasonable assurances, as required under Section 373.414, Florida Statute, that Class III waters will not be degraded and thereby violate the Department's water quality standards, that the project is not contrary to the public interest and that prohibited cumulative and secondary impacts will not result. Therefore, the Petitioner has failed to sustain his burden of showing entitlement to the permit.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department enter a Final Order denying the Petitioner's application for dredge and fill Permit Number DF 182280792.

RECOMMENDED this 6th day of May, 1994, at Tallahassee, Florida.

WILLIAM R. CAVE

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 6th day of May 1994.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 93-5970

The following constitutes my specific rulings, pursuant to Section 120.59(2), Florida Statutes, on all of the proposed findings of fact submitted by the Department in this case.

Petitioner Stanley A. Ferguson

Petitioners did not submit any proposed findings of fact. Respondent, Department's Proposed Findings of Fact.

1. The Department's proposed findings of fact 1 through 15 are adopted in substance as modified in Findings of Fact 1 through 19 of the Recommended Order.

COPIES FURNISHED:

Stanley A. Ferguson Route 1, Box 21A-1R Bunnell, Florida 32110

Donna M. La Plante, Esquire Department of Environmental

Protection

Twin Towers Office Building 2600 Blair Stone Road

Tallahassee, Florida 32399-2400

Virginia B. Wetherell, Secretary Department of Environmental

Protection

Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32399-240

Kenneth Plante, General Counsel Department of Environmental

Protection

Twin Towers Office Building 2600 Blair Stone Road

Tallahassee, Florida 32399-2400

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions to the 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 consult with the agency that will issue the final order in this case concerning their 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: 93-005970

Orders for Case No: 93-005970