STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MICHAEL MCGURK, )

)

Petitioner, )

)

vs. ) CASE NO. 96-3567

) JEFF DYSON and DEPARTMENT OF ) ENVIRONMENTAL PROTECTION, )

)

Respondents. )

)

RECOMMENDED ORDER

A final hearing held pursuant to notice before Administrative Law Judge, Stephen F. Dean, on October 29, 1996, in Orange Park, Florida.

APPEARANCES

Petitioner: Michael S. McGurk, pro se

297 Riverwood Drive

Orange Park, Florida 32073

Respondent: Jeff Dyson, pro se

395 Corporate Way

Orange Park, Florida 32065

Respondent: Department of Environmental Protection Lynette L. Ciardulli, Esquire

Mail Station 35

3900 Commonwealth Boulevard

Tallahassee, Florida 32399-3000 STATEMENT OF THE ISSUES

The issue is whether Respondent, Department of Environmental Protection (Department), should approve the application of Respondent, Jeff Dyson, for a dredge and fill permit.

PRELIMINARY STATEMENT

The Department provided public notice of its intent to issue a dredge and fill permit to Respondent, Jeff Dyson. Michael McGurk, the Petitioner and the owner of property adjoining the location where the proposed filling would occur, filed an objection to the issuance of the proposed permit. The Petitioner requested a hearing on the issuance of the proposed dredge and fill permit, and the Department referred the matter to the Division of Administrative Hearings on July 31, 1996. After the responses of the parties to the Division's Initial Order, the case was set for hearing on October 29, 1996, and heard as noticed.

At hearing, the applicant presented the testimony of Allan Potter, Jr., a professional engineer who had developed the hydrological plan for the property. The Department presented the testimony of Thomas L. Wiley and David Apple. The Petitioner testified in his own behalf. The Department's Exhibits 1 through 5 were received into evidence. The Applicant offered two exhibits into evidence, which were received as Applicant's Exhibits 1 and 2; and the Petitioner offered two exhibits into evidence, which were received as Petitioner's Exhibits 1 and

1. The Administrative Law Judge received one exhibit into evidence as ALJ Exhibit 1.

   
   

   The parties filed proposed findings of fact which were read and considered.

   The findings herein, with some minor changes and additions, are the proposed findings filed by the Department. The additional findings were taken from Petitioner's proposed findings.

   
   

   FINDINGS OF FACT

   
   

   1. On May 24, 1994, Respondent, Jeff Dyson, applied for a dredge and fill permit from the Department to place an unspecified volume of fill within an historically-existing drainage ditch which carries water to the St. Johns River. The proposed project would direct the drainage currently flowing through the ditch into a 15-inch culvert, which would be installed on the property identified as Lot 3 of Riverwood Subdivision. Swales and structures associated with the culvert are to be constructed during the project and are considered a part of the proposal. See Department's Exhibit 1.

      
      

   2. The proposed project would place fill in waters of the State, thereby necessitating the Department's approval of the permit.

      
      

   3. The proposed project, as stated above, is located on Lot 3 of Riverwood Subdivision. The Petitioner owns Lot 4 of Riverwood Subdivision which is located to the east and downstream of the proposed project. The proposed project is located in Riverwood Subdivision which is already developed and single- family residences have been built on both of the lots adjacent to Lot 3. Respondent, Jeff Dyson, seeks the permit in order to develop Lot 3 and build a house on it. The drainage ditch which would be filled runs west to east across the center of Lot 3 and is between four and six feet wide. The depth of this 4itch increases as it moves west to east, reaching a depth of four feet at the eastern edge of the property, where it adjoins the Petitioner's lot.

      
      

   4. The proposed project would re-route the storm water runoff, which flows into the drainage ditch, around the single-family residence which Respondent, Jeff Dyson, proposes to build. The storm water runoff would be routed through a buried 15-inch culvert from the point of intersection of the existing ditch on the western boundary of the property to the point of discharge at the intersection of the existing ditch and the eastern boundary of the property.

      
      

   5. Filling of the drainage ditch previously was permitted by the Department in 1984 as part of the subdivision's development plan which authorized Robert A. Weyand to fill the ditch and construct along the southern boundary of the subdivision a swale which would redirect the then-existing drainage through the swale. The swale was constructed; however, the ditch was never filled. The swale carries the majority of the drainage entering the subdivision under Pine Street down the southern boundary of the subdivision to the St. John's River,

   6. Two 24-inch culverts under Riverwood Avenue remain from the drainage system which predates Mr. Weyand's permit. According to Mr. Potter, this old drainage system carries peak loads into the drainage ditch which Respondent, Jeff Dyson, proposes to fill at Lot 3. The 24-inch culverts were installed when the subdivision was developed in 1981; however, one of the culverts is completely blocked and the other is only partially open. Contrary to Mr. Potter's assertions about peak loads, the ditch collects water in light rains, and storm water pools on the southwesterly side of Riverwood Avenue and overflows Riverwood Avenue into the ditch flowing easterly in the direction of the proposed project.

      
      

   7. Riverwood Avenue, the only street in the subdivision, was designed to direct storm water along its curb and gutter system from west to east. This water adds to the flow over Riverwood Avenue at the point of the culvert where it joins with water running in the old drainage system and flows into the drainage ditch.

      
      

   8. The project, as designed by Mr. Potter, would not adversely effect the quantity of water east of the project. The project was designed so that there would no increase in the rate of runoff with the construction of the proposed residence. The project should not create any flooding downstream because there would be no alteration to the quantity or direction of the existing flows.

      
      

   9. Mr. Potter used the Department of Transportation (DOT) rainfall intensity duration frequency curves to determine the rainfall amount from the

      1.88 acres on the western end of the subdivision upstream of the project. The DOT rainfall intensity duration frequency curves are widely accepted criteria for determining runoff for residential developments.

      
      

   10. In computing the amount of drainage flow which the 15- inch culvert would have to handle, Mr. Potter considered (1) the rainfall for a ten-year storm on the 1.88 acres at the westerly end of the subdivision, and (2) the flow under Pine Street through the existing culvert, which constitutes a limit to the potential flow into the drainage system at the southwest corner of the subdivision. The 15-inch culvert designed by Mr. Potter would handle two times the amount of water generated based upon the stated assumptions in a ten-year storm event.

       
       

   11. The proposed project would not increase these existing flows; however, the quantity of water exceeds the flow from the western portion of the subdivisions computed by Mr. Potter which follows the natural slope of the terrain into the old existing ditch system.

       
       

   12. The Petitioner introduced a video of the storm water collection and flow in a light rain at the location of the culvert under Riverwood Avenue. This video shows that the existing culverts under Riverwood Avenue will not handle the flow of water in the ditch southwest of Riverwood Avenue; therefore, the storm water backs up and flows over Riverwood Avenue at this point into the ditch east of Riverwood Avenue. Other than the ditch under Pine Street and the

       runoff from the 1.88 acres at the western end of the subdivision, the only other source of storm water runoff is the runoff on Riverwood Avenue. Mr. Potter observed the video and indicated that the amount of water appeared to exceed his computations.

       
       

   13. The Petitioner testified regarding the water levels in the ditch underneath his foot bridge over the ditch. During significant storm events, the water level reaches the bottom of the foot bridge. The area underneath the foot

       bridge exceeds the area of a 15-inch culvert. Water flow during a significant storm is unrestricted downstream of the foot bridge, and is not dammed up.

       
       

   14. The proposed project will constitute a dam on the existing drainage ditch with a 15-inch outfall. Based upon the video of the storm water runoff generated by a light rain, the Petitioner's observations of storm water runoff in the ditch during a significant storm event, and the design of the storm water runoff on Riverwood Avenue, it can be reasonably anticipated that the proposed project will dam up water to the west of the project to the highest level of the swale in front of the proposed project.

       
       

   15. Although the proposed project will not adversely effect the quantity of water, the water impounded by the project would cause a significant flooding problem for the upstream property owner.

       
       

   16. The design of the culvert does not provide for protection against children being pulled into the culvert system. The water impounded by the proposed culvert system would be an attraction to children who would be at risk of being pulled into the culvert. It is particularly dangerous because the ditch is much shallower southwest of Riverwood Avenue, and when flooded, the depth of the ditch northeast of Riverwood Avenue is not apparent.

       
       

   17. The water quality standards are currently being met at the site of the proposed project. The proposed project, as constructed, is not expected to cause any water quality violations. The permit contains conditions designed to maintain water quality during actual construction. These conditions include General Conditions No. 4 and 5 and Special Conditions 5- 10.

       
       

   18. Reasonable assurances were provided that water-quality standards will not be violated by the proposed project if built in accordance with the designs submitted.

       
       

   19. The design of the 15-inch culvert includes a 90 degree change of direction before connecting to the outfall on Lot 4. This 90-degree change in direction will dissipate the energy of the water, reducing the likelihood of scouring or erosion at the outfall point.

       
       

   20. Although the project is designed to eliminate scouring, the Department has included a condition in the permit, which requires Respondent, Jeff Dyson, to correct scouring, shoaling, or other alterations of the downstream portion of the drainage way.

       
       

   21. The flooding to the upstream property owner can be minimized by lowering the level of the swale in the front of the project to create an emergency spillway.

       
       

   22. The applicant has provided reasonable assurance that the water quality will not be adversely effected, and the proposal will not increase the volume of water. The project will not adversely effect the conservation of fish and wildlife, including endangered or threatened species or their habitats. The ditch does not contain any fish or wildlife.

       
       

   23. The subdivision in which the project is located is almost completely built out. Therefore, there are no endangered or threatened species living in the area. The project will not adversely effect navigation or the flow of waters and will not cause harmful erosion or shoaling.

   24. The project will not adversely effect fishing or recreational values or marine productivity. There are no fishing or marine recreational values associated with drainage ditches.

       
       

   25. The project will be permanent in nature.

       
       

   26. The project will not adversely effect significant historical or archeological resources.

       
       

   27. The current function of the ditch is to convey storm water to the St. John's River. This function will be effected as indicated above because the proposed project constitutes a dam with a 15-inch outfall. If the 15-inch culvert is incapable of carrying the storm waters introduced into the ditch west of the proposed project, the storm water impounded by the proposed project will flood the property west of the project to the level of the highest point of the swale in the front of the project. By redesigning this swale to have a maximum elevation of ten feet or less feet, the flooding will be retained within the approximate elevations of the existing ditch. In addition, steps can be taken to minimize the potential hazzard to children caught in the ditch.

       
       

   28. There are no cumulative impacts associated with this project. Except as noted above, the applicant provided reasonable assurances that the project is not contrary to the public interest, as defined by Section 373.414, Florida Statutes.

       
       

   29. The Department uses a balancing test, which consists of taking the public-interest criteria and weighing the pros and cons of a specific project. The ultimate question is whether the proposed project is contrary to the public interest. The Department believed that it was not contrary to the public interest. Based upon the evidence presented, the project has two adverse impacts, as indicated in Paragraphs 16 & 27. However, these can be eliminated or minimized to an acceptable level by the modifications recommended.

       
       

       CONCLUSIONS OF LAW

       
       

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

       
       

   31. The applicant, Respondent, Jeff Dyson, has the ultimate burden of proof in demonstrating his entitlement to the permit sought.

       
       

   32. A permit from the Department is required for the proposed project, pursuant to Rule 62-343, Florida Administrative Code. This rule provides that a person must obtain a permit from the Department to dredge or fill in waters of the State, unless otherwise exempted by statute or rule. The proposed project involves dredging and filling in waters of the State, as defined by Rule 62- 343.050, Florida Administrative Code, and there are no exemptions applicable to the proposed project.

       
       

   33. Section 373.414, Florida Statutes, provides that an applicant for a dredge and fill permit must provide reasonable assurances based upon plans, test results, and other information that the proposed project will not violate water- quality standards. In addition, the applicant must provide reasonable assurances that the proposed project will not adversely impact water quantity. The applicant has provided reasonable assurances that the proposed project, as designed, will not adversely impact water quality or water quantity.

   34. Section 373.414(1), Florida Statutes, provides that the applicant must provide reasonable assurances that projects in, on or over surface waters of the State are not contrary to the public interest. The applicant has provided reasonable assurances that the proposed project will not adversely affect the public interest, except as heretofore noted regarding the potential for flooding the upstream property owner and potential danger to children. The potential for flooding can be negated by requiring as a condition of issuance of the permit that the swale and driveway in front of the proposed project not exceed an elevation of ten feet. Similarly, the dangers to children posed by the open intake can be eliminated by putting child proof grates on the culvert intake.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law set forth herein, it is,

RECOMMENDED:

That the Department approve issuance of the permit with the added conditions that the swale and driveway at the front of the proposed project not exceed an elevation of ten feet and that the culvert be constructed to protect children from being pulled into the intake.

DONE and ENTERED this 21st day of November, 1996, in Tallahassee, Florida.

STEPHEN F. DEAN

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(904) 488-9675 SUNCOM 278-9675

Fax Filing (904) 921-6847

Filed with the Clerk of the Division of Administrative Hearings this 21st day of November, 1996.

COPIES FURNISHED:

Jeff Dyson

395 Corporate Way

Orange Park, Florida 32065

Michael S. McGurk

297 Riverwood Drive

Orange Park, Florida 32073

Lynette Ciardulli, Esquire

Department of Environmental Protection Mail Station 35

3900 Commonwealth Boulevard

Tallahassee, Florida 32399-3000

Al Potter

905 North Street

Jacksonville, Florida 32211

Virginia B. Wetherell, Secretary Department of Environmental Protection Douglas Building

3900 Commonwealth Boulevard

Tallahassee, Florida 32399-3000

Perry Odom, General Counsel

Department of Environmental Protection Douglas Building

3900 Commonwealth Boulevard

Tallahassee, Florida 32399-3000

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within 15 days from the date of 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: 96-003567

Orders for Case No: 96-003567