91-004858 William E. And Maria Greene vs. Taylor County Commission And Department Of Environmental Regulation Status: Closed Recommended Order on Friday, April 3, 1992.

Summary: Respondent applic for DER permit must seek surface water management. permit from water district in other proceeding does not preclude issuance of DER permit Proved

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

WILLIAM E. and MARIA GREENE, )

)

Petitioners, )

)

vs. ) CASE NO. 91-4858

)

TAYLOR COUNTY COMMISSION and STATE OF )

FLORIDA, DEPARTMENT OF ENVIRONMENTAL )

REGULATION, )

)

Respondents. )

________________________________________)

DORIS D. BRUMBLEY, )

)

Petitioner, )

)

vs. ) CASE NO. 91-4859

)

TAYLOR COUNTY COMMISSION and STATE OF )

FLORIDA, DEPARTMENT OF ENVIRONMENTAL )

REGULATION, )

)

Respondents. )

________________________________________)

RECOMMENDED ORDER

Pursuant to notice, this cause came on for formal hearing before P. Michael

Ruff, duly-designated Hearing Officer of the Division of Administrative

Hearings, in Perry, Florida.

APPEARANCES

FOR PETITIONERS: William & Maria Greene, pro se

(William & Maria P.O. Box 38

Greene) Madison, Florida 32340

FOR PETITIONER: Doris S. Brumbley, pro se

(Doris D. Brumbley) P.O. Box 742

Monticello, Florida 32344

FOR RESPONDENT: William H. Congdon, Esq.

( DER) Department of Environmental

Regulation

Twin Towers Office Building

2600 Blair Stone Road

Tallahassee, Florida 32399-2400

FOR RESPONDENT: Conrad C. Bishop, Jr., Esq.

(Taylor County P.O. Box 167

Commission) Perry, Florida 32347

STATEMENT OF THE ISSUES

The issue to be determined in this proceeding concerns whether the

applicant has provided reasonable assurances that the proposed bridge project

will meet the requirements of Chapter 403, Florida Statutes, and the various

provisions contained in Title 17, Florida Administrative Code, so that a dredge

and fill permit should be issued. More specifically, the issues concern whether

the various water quality standards embodied in Title 17 of the Code and Section

403.918(1), Florida Statutes, will be complied with and whether the public

interest standards in Section 403.918(2), Florida Statutes, will be met in the

sense that the project can be assured not to be contrary to those standards.

PRELIMINARY STATEMENT

This cause arose upon the application of the Respondent, Taylor County

Commission ("County"), for a dredge and fill permit to the above-named

Respondent agency, which would authorize, if granted, the construction of a

bridge project in Taylor County, Florida. The application was filed on February

14, 1991 and on July 3, 1991, the Department issued a notice of intent to issue

a permit for the proposed project. Thereafter, a timely petition challenging

the proposed project was filed on July 18, 1991 by Petitioner, Doris D.

Brumbley, and on July 24, 1991 from Petitioners, William E. and Maria Greene.

The Brumbley petition and the joint Greene petition were duly transmitted to the

Division of Administrative Hearings and assigned to the undersigned Hearing

Officer for conduct of a formal proceeding. The cases were consolidated by the

Hearing Officer's Order of November 15, 1991 under Case No. 91-4858.

The cause came on for hearing as noticed. At the hearing, the applicant

and Department presented a joint case. Testifying on behalf of the Respondents

were Edward L. Allen; Dr. William C. Kohler; Peter M. Hahn, accepted as an

engineering expert; and Mike Eaton, accepted as an expert in the field of

environmental impacts of such dredge and fill projects. The Petitioners

presented the testimony of three (3) witnesses, Doris Brumbley, James Brumbley

and William Greene. No expert witnesses were presented by the Petitioners. The

Respondents' seven (7) joint exhibits were admitted into evidence. At the

conclusion of the proceeding, the parties obtained a transcript thereof and

requested and were granted an extended briefing schedule for submission of

Proposed Recommended Orders. Those Proposed Recommended Orders have been timely

submitted and the proposed findings of fact are addressed in this Recommended

Order and specifically ruled upon again in the Appendix attached hereto and

incorporated by reference herein.

FINDINGS OF FACT

1. Taylor County, through its duly-elected representative body, the Taylor

County Commission, has filed an application seeking authority, by the grant of a

"dredge and fill permit", to place fill material and to perform construction of

a bridge across an unnamed canal in Taylor County, Florida, in the vicinity of

Keaton Beach. The proposed bridge would connect Balboa Road and Marina Road on

Pine Island in the community of Keaton Beach. Pine Island is an elongated strip

of land separated from the Taylor County mainland by water and lying generally

in a north/south direction. It is an artificial island created by dredge spoil

from dredging activities by which certain canals were constructed during the

decade of the 1950's. It is bounded on the west by what is known as "Main

Canal", on the north by an unnamed canal, and on the east by what is known as

"Back Canal". South of Pine Island is an inlet of the Gulf of Mexico. The

canals involved in this proceeding, named above, are Class III waters of the

State of Florida. Marina Road runs down the center of Pine Island. Lots to the

west of Marina Road abut Main Canal and lots to the east of that road abut the

Back Canal. Pine Island has been platted into approximately 110 lots. There

were 47 homes and two (2) trailers on Pine Island at the time of the hearing.

Only 17 full-time residents live there. Keaton Beach Road, also known as County

Road 361, runs in a north/south direction generally and relatively parallel to

Marina Road on land lying across Main Canal from Pine Island.

2. In the past, Pine Island Drive connected Keaton Beach Road and Marina

Road. It traversed Main Canal over what was known as the "humpback bridge", a

wooden structure. The bridge ultimately became decayed and hazardous so that it

was removed by the County in 1983.

3. East of Pine Island, forming a continuation of Pine Island Drive, is a

limerock road. This road presently provides the only vehicular or pedestrian

access to Pine Island. It crosses the Back Canal over a culverted-fill area,

making a 90 degree turn to the north and runs north along Back Canal. It then

turns in an easterly direction until it meets Balboa Road. The property to the

east of the center line of Back Canal and to the east of Balboa Road belongs to

Dr. William Kohler. Other than the one-half of the culverted-fill area that

lies west of the center line of Back Canal, the limerock road is on Dr. Kohler's

land.

4. In 1974, Taylor County was concerned about the use of the humpback

bridge by school buses. It asked Dr. Kohler to grant it an easement over the

limerock road for use by school buses. That limerock road passes over portions

of Lots 44 and 45. Although Lots 44 and 45, east of Balboa Road, were not

included in the written easement, Dr. Kohler has allowed use of the limerock

road that passes over portions of Lots 44 and 45 since that time.

5. Balboa Road presently terminates in a cul-de-sac at the edge of the

unnamed canal that bounds the north end of Pine Island. On Pine Island, Marina

Road is paved at the present time past the front of and to the northern property

boundary of Lot 13, Petitioner Brumbley's residence lot. At that point, Marina

Road ends at the south side of an unnamed dirt road. Between the north side of

that unnamed dirt road and the unnamed canal lie Lots 2-6. The proposed Balboa

bridge will start at the end of Balboa Road, cross the unnamed canal, cross a

portion of Lot 2 and 3 on Pine Island, and tie into the existing grade at the

"T" intersection where Marina Road deadends into the unnamed dirt road.

6. The unnamed canal runs approximately east and west at the location of

the proposed bridge. The bridge would be constructed on top of revetted fill

material that will be placed to the north and south of a 15-foot wide span over

the middle of the unnamed canal. The bridge construction shall be according to

the Florida Department of Transportation specifications for road and bridge

construction. The bridge will have a DOT approved guard rail on each side.

7. No water quality violations will result from the proposed project.

Turbidity violations may occur on a temporary basis during construction and so

turbidity screens and silt barriers will be installed by the applicant to

prevent such turbidity from migrating away from the site itself. A condition on

the grant of the proposed permit has already been agreed to by the Respondent

parties which will require turbidity and erosion-control devices prior to any

excavation or placement of fill material. Specific condition eight also

requires that these control devices remain in place until the fill has been

vegetatively stabilized after construction is over.

8. The proposed project will have a positive impact on public safety and

welfare by providing proper and appropriate access to Pine Island by a more

stable, safe roadway to which the bridge will be connected. During periods of

high water, the present limerock access road floods, limiting emergency access

to the Island. On one occasion, an injured person had to be carried down the

limerock road to meet an ambulance at another location because the ambulance was

unable to traverse the flooded limerock road. It is Dr. Kohler's intention to

terminate use of the limerock road by members of the public since it is on his

property. When that occurs, there will be no access to Pine Island unless the

proposed bridge is built. The present limerock access road can be dangerous and

slippery when wet, and persons using the limerock road often travel "dangerously

fast", as testified to by Petitioner, Doris D. Brumbley. The 90-degree turn of

the limerock road has no guardrails.

9. The proposed project will, to a minimal, temporary degree, adversely

impact fish or wildlife and their habitats, marine productivity and the current

condition and relative value of functions being performed by the area affected

by the proposed bridge. The canal system was originally excavated out of the

salt marsh. Being man-made structures, their sides have slumped somewhat and

have established a small, littoral zone where vegetation grows. Mud flats at

the bottom of the canal bank allow the growth of oysters. The fill area

associated with the proposed bridge, however, will have a surface area and

volume comparable to the culverted fill that will be removed at the point where

the road presently crosses Back Canal. When the culverted-fill area or plug

across Back Canal is removed, the lost vegetation and oysters will become re-

established at that location, offsetting the loss that will occur at the

location of the bridge. Various marine species will also become established on

and benefit from the shelter of the bridge and its structure, as well.

10. The project will not cause harmful erosion or shoaling. The banks

that will result from the removal of the culverted fill and the sides of the

filled areas associated with the bridge will be protected from erosion with

vegetation and revetments. The proposed project will enhance the flow of water

in Back Canal and will improve navigation and flushing. Water flow through the

existing culvert is presently considerably restricted when compared to the water

flow beneath the proposed Balboa bridge area. The existing culvert is not at

the bottom of the filled area. Therefore, at low water, most of the culvert is

exposed, precluding the culvert from functioning at maximum capacity to aid in

flushing with the water quality benefits caused by flushing being thus retarded.

The lack of water flow has caused a portion of Back Canal, south of the

culverted-fill area, to fill up with sediment. At low tide, parts of the Back

Canal are without water. The increased flow that will result from removal of

the fill plug and culvert where the road presently crosses Back Canal will allow

property owners along Back Canal to navigate their boats out into the Gulf of

Mexico, thus improving the recreational value of Back Canal and the navigation

in the canal system.

11. There are no similar fill projects planned for or expected in the

Keaton Beach area. All three Petitioners are concerned that storm water runoff

from the proposed bridge will flood their property, however. At the present

time, the road in front of the Petitioners' lots is paved, with the pavement

ending at the northernmost end of the Brumbley property. Since the Petitioners'

lots already receive roadway runoff from the existing paved road, any increase

in runoff to their lots would have to come from storm water flowing along the

length of the road from the proposed project.

12. The road which is to cross the proposed bridge will be composed of a

20-foot wide strip of asphalt, with 5-foot shoulders on each side. The slope

from the crown of the road to the outer edge of the pavement will be one-quarter

inch per one foot. The shoulders will have a slope of one-half inch per foot.

Thus, rain water will flow off the sides of the road and down the shoulders,

rather than down the length of the road towards the Petitioners' lots.

Moreover, no additional water should be directed to the Petitioners' lots since

the proposed road extension between the end of the bridge and the Petitioners'

lots would be flattened. Water flowing off the bridge due to gravity will be

shed toward the revetment which extends down to the canal, rather than towards

the Petitioners' property.

13. Storm water impacts will be addressed again by the Suwannee River

Water Management District. A storm water permit application has been submitted

to the Suwannee River Water Management District and is required before the

proposed project construction can start. In that storm water permit

application, the applicant acknowledged its obligation and responsibility to

obtain all required permitting before construction starts. The draft permit

reinforces this at specific condition six: "This permit does not constitute any

approval of the storm water management system which must be obtained separately

from the appropriate agency."

14. All of the Petitioners are concerned about the increase in vehicular

traffic which would pass in front of their lots and the Brumbley's particularly

are concerned that light from headlights of increased traffic will be cast upon

and into their house at night. It is clear that traffic passing the

Petitioners' lots will increase due to the proposed project. It is equally

clear from the angle of the bridge shown on Joint Exhibit 2 and the elevations

of the bridge, shown on Joint Exhibit 3, that light from the headlights of

vehicles approaching Pine Island after dark will illuminate, at least

momentarily, portions of the Brumbley home.

CONCLUSIONS OF LAW

15. The Division of Administrative Hearings has jurisdiction over the

subject matter of and the parties to this proceeding. Section 120.57(1),

Florida Statutes.

16. The Department has permitting jurisdiction over the proposed project,

pursuant to Chapter 403, Florida Statutes, and Title 17, Florida Administrative

Code.

17. Section 403.918(1), Florida Statutes, states:

(1) A permit may not be issued under S.

403.91 through 403.919 unless the applicant

provides the department with reasonable

assurance that water quality standards will

not be violated.

18. Section 403.918(2), Florida Statutes, provides, in pertinent part:

(2) A permit may not be issued under S.

403.91-403.929 unless the applicant provides

the department with reasonable assurance that

the project is not contrary to the public

interest.

(a) 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:

(1) Whether the project will adversely affect

the public health, safety or welfare or the

property of others;

(2) Whether the project will adversely affect

the conservation of fish and wildlife,

including endangered or threatened species,

or their habitats;

(3) Whether the project will adversely affect

navigation or the flow of water or cause

harmful erosion or shoaling;

(4) Whether the project will adversely affect

the fishing or recreational values or marine

productivity in the vicinity of the project;

(5) Whether the project will be of a

temporary or permanent nature;

(6) Whether the project will adversely affect

or will enhance significant historical and

archeological 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.

19. The permit applicant in a proceeding such as this has the ultimate

burden of persuasion. The applicant at hearing must present a "prima facie

case" establishing entitlement to the permit. See, Florida Department of

Transportation v. JWC Company, Inc., 396 So.2d 778, 787 (Fla. 1st DCA 1981). If

the permit applicant establishes a prima facie case, the court's opinion then

indicates that the burden of going forward with evidence to prove the truth of

the facts asserted in the petition thereupon shifts to the petitioner. If the

petitioner fails to present evidence, or fails to carry its burden as to the

controverted facts asserted in its petition, then the prima facie case

established by the applicant shall stand and the permit must be approved.

20. The applicant herein has provided reasonable assurances that the

proposed project will not violate water quality standards in view of the

findings of fact established above, based upon preponderant evidence. Given the

fact that the removal of the culverted-filled plug area will help offset the

adverse impacts related to the construction of the bridge and the positive

weight given to the public safety and welfare factor involving more safe driving

and access conditions, the project is not contrary to the public interest. This

is especially so when one considers that the project was shown to enhance marine

productivity, recreational values, and the current condition and relative value

of functions being performed by the canal system area affected by the proposed

activity. On balance, the insertion of the bridge structure will provide an

additional area for various benthic species to attach or otherwise to find

shelter and habitat, which will help offset the slight habitat loss caused by

removal of the filled plug-culvert area. The removal of that area will enhance

flushing in the canal system, which will promote more adequate, cleaner water

levels in the canal to the benefit of benthic species of various types and the

improved flushing will improve canal navigation and recreational use by the

boating public. For all of these reasons, the project has been shown to be not

contrary to the public interest.

21. The Petitioners' concerns about rainwater running off the proposed

bridge and roadway onto their property are not well founded. The design of the

paved portion of the project will shed water coming off the pavement into the

unnamed canal or onto Lots 2 and 3. Part II of Chapter 40B-4, Florida

Administrative Code, relates to the permitting of surface water management

systems by the Suwannee River Water Management District. A surface water

management system includes any system that involves storm water runoff. Rule

40B-4.1020(45), Florida Administrative Code. The necessity of obtaining a

surface water management system permit from the Suwannee River Water Management

District involves proof by the permit applicant, the permit applicant in this

case, which will provide assurance that storm water from the proposed project

will not adversely affect surrounding property owners, including the

Petitioners. The issues concerning storm water runoff and the storm water

management system aspect of the project must be addressed within the

jurisdiction of the Suwannee River Water Management District and not in this

proceeding. If the Petitioners believe that the storm water system will not

properly accommodate storm water without causing a detriment to them or that,

for other reasons, the storm water system should not be permitted, they will

have an opportunity to challenge any proposed agency action to grant such a

storm water management system permit when that agency might seek to take such

action, just as they did the proposed action by DER at issue in this proceeding.

22. The Petitioners' concerns about light from vehicular headlights,

increased traffic flow, and decreased property values are not concerns which can

appropriately be addressed in this permitting proceeding, considering the

limited jurisdiction of the Department with regard to the project and,

therefore, the Hearing Officer's limited jurisdiction. Light from vehicular

headlights cast into the Brumbley residence or increased traffic flow resulting

from the project might indeed be a nuisance, but these are not environmental

impacts related to water quality or to the public interest issues quoted above,

which are the only impacts, specified in the Department's organic law, contained

in Chapter 403, Florida Statutes, which can be considered in this proceeding.

Those impacts are generally limited to the environmental impacts and others

specifically listed in Section 403.918, Florida Statutes, the public interest

standards, which do not include such considerations as economic impacts, traffic

hazards, or reduction in property values. See, Miller v. State Department of

Environmental Regulation, 504 So.2d 1325 (Fla. 1st DCA 1987).

23. Given the fact that the Island is a residential development containing

less than 50 residences and that only 17 full-time residents reside there, the

impact of vehicular headlights and traffic may not prove as severe as the

Petitioners fear. Even if such impacts do prove so severe, the Petitioners

might seek relief in the Circuit Court in and for Taylor County on a nuisance

theory, but such relief cannot be afforded them in this proceeding.

24. In summary, the permit applicant established a prima facie case in

support of a grant of the permit in terms of reasonable assurances that the

water quality standards and the public interest standards prevailing in this

proceeding and with regard to this proposed project will be met. Preponderant

evidence which could refute that showing or which could establish the fact of

the concerns raised by the Petitioners in their petitions has not been provided.

Consequently, the permit should be granted.

RECOMMENDATION

Having considered the foregoing Findings of Fact, Conclusions of Law, the

evidence of record, the candor and demeanor of the witnesses, and the pleadings

and arguments of the parties, it is therefore,

RECOMMENDED that the application of the Taylor County Commission for the

dredge and fill permit at issue, as described in the above Findings of Fact and

Conclusions of Law, be granted on the terms and conditions set forth in the

Department's draft permit, in evidence as Joint Exhibit 7.

DONE AND ENTERED this 3rd day of April, 1992, in Tallahassee, Leon County,

Florida.

___________________________________

P. MICHAEL RUFF

Hearing Officer

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, FL 32399-1550

[phone]

Filed with the Clerk of the

Division of Administrative Hearings

this 3rd day of April, 1992.

APPENDIX TO RECOMMENDED ORDER

Respondent DER's Proposed Findings of Fact:

1-24. Accepted.

Petitioners' Proposed Findings of Fact:

None filed.

Respondent Taylor County Commission's

Proposed Findings of Fact:

The County adopted the proposed findings of fact filed by the Department.

COPIES FURNISHED:

Carol Browner, Secretary

Department of Environmental Regulation

Twin Towers Office Building

2600 Blair Stone Road

Tallahassee, FL 32399-2400

Daniel H. Thompson, Esq.

General Counsel

Department of Environmental Regulatin

Twin Towers Office Building

2600 Blair Stone Road

Tallahassee, FL 32399-2400

William & Maria Greene

P.O. Box 38

Madison, FL 32340

Doris S. Brumbley

P.O. Box 742

Monticello, FL 32344

William H. Congdon, Esq.

Department of Environmental

Regulation

Twin Towers Office Building

2600 Blair Stone Road

Tallahassee, FL 32399-2400

Conrad C. Bishop, Jr., Esq.

P.O. Box 167

Perry, FL 32347

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.