d. l. middlebrooks, robert j. mayes|Department of Environmen... -- eLawyers

Judges: THOMAS C. OLDHAM
Agency: Department of Environmental Protection
Latest Update: Mar. 11, 1977

Summary: Whether Petitioner's application for a permit to construct pollution sources should be granted, pursuant to Chapter 403, Florida Statutes. A prehearing conference was held before Alexander M. Siegel, Hearing Examiner for the Department of Pollution Control, at Orlando, Florida, on May 7, 1975. Subsequently, Mr. Siegel disassociated himself from the case and the matter was referred to the Division of Administrative Hearings. Another prehearing conference was held before this Hearing Officer on July 29, 1975, at Tallahassee, Florida. An order resulting from that conference reaffirmed the ruling of the Hearing Examiner at the prior prehearing conference, based upon stipulation of the parties at that time, that subparagraphs 4(b), (d), (e) and (f) of the Petition would not be considered in the instant proceedings because matters raised in those portions of the Petition were not appropriate for administrative determination. It was also determined that because the agency proceeding had begun prior to the effective date of Chapter 743.10 Florida Statutes (Administrative Procedure Act), and due to absence of consent of all parties and the agency to conduct further proceedings under the new statute, the provisions of Florida Statutes, 1973, specifically section 403.061(7)(9), and section 403.087(2), as implemented by Chapter 17-1, Florida Administrative Code, would govern the conduct of future proceedings. Rule 1-7-1.25(5), Florida Administrative Code, provides that a review of the denial of a permit shall be limited to the information in the possession of the Department at the time of making the said determination. Accordingly, the hearing was restricted to consideration of information in the actual or constructive possession of the Respondent as of November 6, 1974, the date of its letter to Petitioner denying the permit application. This included evidence as to the interpretation of such information. A final prehearing conference was held immediately prior to the hearing. Representatives of intervening parties Florida Audubon Society and Volusia County Environmental Task Force, although entering appearances, did not actively participate in the final hearing. Pursuant to Rule 17-1.11(4)(a), Florida Administrative Code, individuals not parties were permitted to testify under oath at the hearing, subject to cross-examination by all parties.Grant permission to operate pollution sources subject to conditions set out in the order.

75-1090

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

In the Matter of: Petition for )

Review of Denial of Permit, Cape ) CASE NO. 75-1090 Atlantic Estates, Volusia/Brevard )

County, Florida. )

)

RECOMMENDED ORDER

A hearing was hold in the above-styled case, after due notice to the parties, at the Volusia County Courthouse Annex, Daytona Beach, Florida, October 6 - 16, 1975, before the undersigned Hearing Officer.

APPEARANCES

For Petitioner: D. L. Middlebrooks, Esquire

& Robert J. Mayes, Esquire

226 South Palafox Street Pensacola, Florida 32501

Dennis M. Solomon, Esquire 8397 North East Second Avenue Miami, Florida 33138

For Respondent: David Gluckman, Esquire and

Vance Kidder, Esquire State of Florida

Department of Environmental Regulation 2562 Executive Center Circle Tallahassee, Florida

For Intervenors: Brevard County

Clifton McClelland, Jr., Esquire Assistant County Attorney Brevard County

Post Office Box 157 Titusville, Florida 32780

State Attorney of the Seventh Judicial Circuit

Peter B. Heebner, Esquire Assistant State Attorney Courthouse Annex

125 East Orange Avenue Daytona Beach, Florida

Florida Audubon Society

Mr. Charles Lee Field Representative

Florida Audubon Society Post Office Drawer 7 Maitland, Florida 32751

Volusia County Environmental Task Force

Patrick G. Kennedy, Esquire Post Office Box 438

Deland, Florida 32720 ISSUE PRESENTED

Whether Petitioner's application for a permit to construct pollution sources should be granted, pursuant to Chapter 403, Florida Statutes.

A prehearing conference was held before Alexander M. Siegel, Hearing Examiner for the Department of Pollution Control, at Orlando, Florida, on May 7, 1975. Subsequently, Mr. Siegel disassociated himself from the case and the matter was referred to the Division of Administrative Hearings.

Another prehearing conference was held before this Hearing Officer on July 29, 1975, at Tallahassee, Florida. An order resulting from that conference reaffirmed the ruling of the Hearing Examiner at the prior prehearing conference, based upon stipulation of the parties at that time, that subparagraphs 4(b), (d), (e) and (f) of the Petition would not be considered in the instant proceedings because matters raised in those portions of the Petition were not appropriate for administrative determination. It was also determined that because the agency proceeding had begun prior to the effective date of Chapter 743.10 Florida Statutes (Administrative Procedure Act), and due to absence of consent of all parties and the agency to conduct further proceedings under the new statute, the provisions of

Florida Statutes, 1973, specifically section 403.061(7)(9), and section 403.087(2), as implemented by Chapter 17-1, Florida Administrative Code, would govern the conduct of future proceedings. Rule 1-7-1.25(5), Florida Administrative Code, provides that a review of the denial of a permit shall be limited to the information in the possession of the Department at the time of making the said determination. Accordingly, the hearing was restricted to consideration of information in the actual or constructive possession of the Respondent as of November 6, 1974, the date of its letter to Petitioner denying the permit application. This included evidence as to the interpretation of such information.

A final prehearing conference was held immediately prior to the hearing.

Representatives of intervening parties Florida Audubon Society and Volusia County Environmental Task Force, although entering appearances, did not actively participate in the final hearing.

Pursuant to Rule 17-1.11(4)(a), Florida Administrative Code, individuals not parties were permitted to testify under oath at the hearing, subject to cross-examination by all parties.

FINDINGS OF FACT

By various purchases during the period 1967-1969, Petitioner acquired over 14,000 acres of land in the eastern sector of central Florida. About 12,000 acres of the land lie in Volusia County and the remainder in the northern part of Brevard County. Petitioner registered various public offering statements for resale of this land with the Florida Land Sales Board.
In 1967, pursuant to an act of the State Legislature, the Circuit Court of the Seventh Judicial Circuit of Florida entered judgment creating and incorporating the South County Drainage District which included Petitioner's land in Volusia County.
Later attempts by judicial action to extend the Drainage District boundary lines to include Petitioner's land in Brevard County were unsuccessful.
A 1967 agreement between Petitioner and the Drainage District provided that a drainage plan would be implemented by the District with funds for construction being advanced by Petitioner. This plan consisted of dead-end graded roads and a system of ditches and canals that were to be constructed and maintained by
the Drainage District, with purchasers of the property to be assessed for the cost of the facilities.
In 1972, Volusia County adopted a home rule charter which abolished the South County Drainage District and transferred its powers and functions to the county.
In 1973, an agreement was entered into between Petitioner and Volusia County providing for the transfer to the county of the functions, responsibilities, and obligations of the Drainage District, and assigning to Petitioner the right to petition the State for approval of the drainage plan. Under the agreement, a Special Improvement District was created by the County (testimony of Trella, Maise1, Exhibits 1, 2, 25, 26, 27).
The land acquired by Petitioner had been designated as Cape Atlantic Estates and was divided into tracts or lots in a grid system which was a series of rectangular squares with intersecting roads. Initially, the tracts were two and 1/2 acres each and eventually they were halved and sold in one and 1/4 acre plots. A typical offering statement provided that the "predeveloped tracts" were subject to road and drainage rights-of- way, and that purchasers, after paying their contracts in full, would receive free and clear title to the property. It was further stated that physical access would be obtained over rough graded dirt roads to be completed by December 31, 1973, and that when drainage facilities were completed the land would be dry. It was specifically pointed out that it was not a "homesite" offering nor was it part of a recorded plat, but offered as part of a section, township and range. However, the statement also noted that facilities such as elementary schools, churches, and fire, and police protection were available in neighboring communities. It also indicated that there was no water supply, sewage, public utilities, or public transportation to the property.
Sales commenced in 1967 and, by the middle of 1971, approximately 98 percent of the tracts had been sold, primarily to out-of-state purchasers. The bulk of the sales were made by telephone contacts initiated by Petitioner's salesmen. Some 5,000 purchasers bought tracts in the development on contracts which were of eleven to twelve years in duration.
The property in question is described as coastal low lands that consist of essentially level terraces. The surface drainage of the land is poorly-developed and inefficient. The terraces begin at the Atlantic Ocean on the east and progress westward to a maximum altitude of about 29 feet in the project
area. The Atlantic coastal ridge functions as a divide between the St. Johns river and the coastal drainage basin called Turnbull Hammock. West of the ridge, surface drainage generally is toward the St. Johns river, and east of the ridge drainage is into Turnbull, Hammock which leads to Turnbull Creek and thence to the Indian River. The region has large swamp and marshland areas and sandy surface soils which are intermittently underlain by hardpan at shallow depths which impedes rainfall infiltration. Much of the area is covered with ponds during the wet season creating swampy conditions. The climate supports heavy growth of native pine and scrub oak trees in the sandy soils. Cypress trees prevail in the wet bottomlands.
Turnbull Hammock occupies the eastern quarter of the tract and is flat and heavily-wooded. It serves as a catchment for surface runoff from the lands immediately to the west and also for lands outside and north of the project. The Turnbull Hammock natural drainage basin involves about 48 square miles. Highway 1-
95 - traverses the center of the area in a north-south direction. The land is in a primitive state and is mostly unused with the exception of minor cattle grazing areas. Subsurface water leaving the Cape Atlantic Estates to the east surfaces in the Turnbull Hammock and drains to the south into the Indian River. On the west side, the tendency of the water is to move west and surface in cypress sloughs, eventually reaching Buck Lake, an area to the southwest. During flood conditions, when surface waters are high, the western subsurface water could make its way in time to the St. Johns River.
The original drainage plan was aimed at decreasing the retention of surface water and using controlled measures to improve runoff in order to prevent flooding and soil erosion. Some nine percent of the property has standing water or ponding and, although in many of the sand ridges, this is not a serious problem because the rainfall quickly dissipates into the soil, in those areas were the soil is heavily interspersed with hardpan, there is slow percolation. Some 26 percent of the land area floods during rain showers.
The plan was to remove the standing surface water by a network of canals, ditches and swales and, to achieve these goals, regulating devices were to be installed at two major discharge points of the system. The plan incorporated a main canal located just west of 1-95 which would drain the western Volusia County portion of the project area through an existing 9' X 12' double box culvert under 1-95 into a north outfall canal and ultimately into Turnbull Hammock. The remaining portion of the western
section, some 2300 acres in Brevard County, was planned to be drained to the south whereby water would exit the property through a 142 acre storage reservoir that was considered to have sufficient capacity to retain the water during a 50 year flood condition and yet not exceed the existing natural discharge rate. Since Turnbull Hammock is considerably lower than the western side of the property, a self regulating control gate was considered necessary to maintain the water level of the canal in Volusia County at a level of 21 feet mean sea level. In the Brevard County portion, the main canal water level was designed to be kept at an elevation of 20 feet mean sea level by a fixed control structure at the reservoir discharge. It was planned that water would be collected from the area by lateral swales and ditches which would flow into the main canal (testimony of Trelia, Garcia; Exhibits 2,3,4 & 15).
The main canal for the project was constructed in 1970. This canal generally parallels the west side of 1-95 in the project area and is approximately 14 1/2 miles in length, some 90 to 100 feet wide and five to six feet in depth. It had been estimated that all the improvements for the project would be completed by December 31, 1973. In early 1971, the Drainage District was in the design stages for the next phase when it learned that Volusia County had adopted the home rule charter that abolished, the South County Drainage District. At this point, work on the project stopped and nothing further was done toward completion of the improvements to the land.
In the middle of 1972, after negotiations with Volusia County, Petitioner became aware that various state agencies, same of which had come into being since the original purchase of the land, might have some responsibility in connection with the project. The Department of Pollution control, Department of Natural Resources, the Game and Fresh Water Fish Commission, and the Trustees of the Internal Improvement Trust Fund were contacted to see if they had any requirements as to the proposed improvements. The Department of Pollution control was the only agency which expressed an interest or concern in the matter. Petitioner also ceased sales in the middle of ;1972 after discussions with the Florida Land Sales Division, because of the uncertainty of the situation at that time.
During the remainder of 1972, Petitioner's representatives had various discussions with officials of the Department of Pollution Control at Tallahassee, but was advised that nothing definitive could be accomplished on the drainage plan pending a resolution of the status of the South County Drainage
District which was in litigation at the time. Around October, 1972, as a result of discussions with various county officials and the Department of Pollution Control, Petitioner decided that an environmental impact study would be, beneficial and therefore retained the services of Brevard Engineering Company of Cape Canaveral, Florida, to make such an environmental assessment of Cape Atlantic Estates. This report was completed in February, 1973, and transmitted to the Department of Pollution Control in April. Although there were numerous conversations with Tallahassee representatives of the Department of Pollution Control during the remainder of the year, it was not until early 1974 that petitioner was advised it should start discussing the matter with the Department's central regional office in Orlando.
A meeting was held at Orlando between Petitioner's representatives and officials of the regional office in March, 1974 at which time the details of the project were reviewed. Mr. Woods, the regional engineer for the Orlando office at that time, indicated that he wished to study the matter further because he was not familiar with the environmental study which had been received from their Tallahassee office. There followed a field trip to the project area where Mr. Garcia, the project engineer,, and two members of the Orlando regional office of the Department, Mr. Hulbert and Mr. Medley, looked over the area.
In April, 1974, there was another meeting with Mr. Woods at which time he indicated that the project would be approached by the Department as a potential pollution source at any points where the waters went outside the property boundaries. This was followed up by a letter from Mr. Woods received by Petitioner in June, 1974, which stated that in view of the primary interest of his office to protect and preserve water quality as to the project, it was recommended that strong consideration be given to modifying the drainage plan to allow for reduction in the following areas:
1. Draining of swamps, marshes, and wet lands which is in general detrimental to water quality by the removal of natural
  filtration and assimilative systems from the service of treatment of stormwater runoff.
2. Introduction of canals and artificial waterways degrade water quality by virtue of their stagnating effect and general magnification of adverse effects in (1) above by lowering the ground water table.
3. Transporting of water across natural
  barriers and separate watersheds is generally detrimental to water quality by virtue of
  a net change of flow patterns and characteristics by reducing or increasing the normal waterbudget in the area.
Mr. Woods also pointed out in his letter that, although it was recognized the gridiron pattern of the project made maximum utilization of the available land his office felt that a significant reduction in adverse effects as indicated could be achieved by utilizing the natural systems as much as possible, and that this would require maximum utilization of the existing wetlands, provisions for on-site retention if and where practical, and selective planting to provide for natural filtration and nutrient assimilation. He further indicated that it would be necessary to obtain a water quality certification from his Department, that Petitioner must show the facilities would be properly constructed and operated, and would be required to produce evidence that either the county or the drainage district was in a position to assume responsibility as the permittee (testimony of Trella, Garcia; Exhibit 10).
After receipt of the letter from Mr. Woods, Petitioner engaged the firm of Frederic R. Harris, Inc., consulting engineers, of Ft. Lauderdale, Florida, to prepare a definite project report on drainage that would provide modifications of the drainage plan in order to comply with the objections posed in the Woods letter. This report as prepared by John W. Blue, professional engineer and, although dated September 1974, was available in final form in August at which time a meeting was held between Petitioner's representatives and the successor regional engineer in Orlando, Mr. Thomas Hunnicutt. The meeting was held on August 6, and in attendance were Mr. Gene Medley and Mr. James Hulbert of the regional staff. At this meeting, Mr. Hunnicutt was acquainted with the project and the letter from Mr. Woods, and given the "Harris" report for consideration. This report reflected Petitioner's attempts to satisfy the objections of the department by incorporating the following features in the plan:
1. Specifications to prevent the conveyance of oils, chemicals, silt or other pollutants into the drainage waters during project construction.
2. Planting grass on the erodible earth surfaces exposed during construction.
3. Preservation of about 200 acres of natural hammock ponding sites.
4. Designation of about 75 acres of natural overflow retention areas for filtration of roadside ditch runoff.
5. Construction of about 70 acres of artificial overflow retention areas for filtration of lateral and runoff.
6. Provision for about 209 acres of natural water spreading areas at canal and outfall terminals.
7. Avoidance of direct connections between drainage canals and watercourses or estuaries.
8. Utilization of about 127 acres of dug ponds and existing borrow pits for regulation of runoff peaks.
9. Overexcavation of canals and laterals to make permanent ponds.
  
  Whereas the report of the Brevard Engineering Company had been based on a 50 year flood condition, the Harris Report was based primarily upon 10 and 25 year flood conditions. There was a misunderstanding as to Mr. Hunnicutt's comments to Petitioner at this meeting. Petitioner claims Hunnicutt had then stated that the project was in good order and that they should proceed to file their application for a permit. On the other hand, Hunnicutt testified that his remarks were predicated on the fact that since Petitioner had indicated it had made all of the modifications in the project that could he done (by virtue -of the grid system that could not be modified) , he therefore felt there was no point in further discussion. He also was of the opinion that there was sufficient information available at that time to permit consideration of an application by the Department. The Petitioner was provided blank copies of a form entitled Application To Construct/Operate Pollution Sources" (Exhibit 5), and, although Mr. Hunnicutt then acknowledged that this form did not apply too well to the endeavor under consideration he told Petitioner that they should go ahead and file the forms, at Tallahassee, attaching all supporting evidence. The application was filed in the joint names of Volusia County and Atlantic International Investment Corporation and signed by the president of the corporation. It was dated September 9, 1974, and submitted and delivered to the Respondent in Tallahassee on September 10, 1974, with a copy being given to the Orlando regional office. Other than receiving a letter dated October 25, 1974, from the Department of Natural Resources indicating that a water quality certification would not be required for the project, Petitioner heard nothing further from the Respondent until it received a letter from Mr. Hunnicutt denying the permit, dated November 6; 1974. This letter said that the regional staff had reviewed the application and based thereon,
  plus reviews and comments from Brevard and Volusia County Environmental Control, the permit was recommended to be denied because the applicant had not given the Department "reasonable assurance that the results of this project will be in accord with applicable laws, rules and regulations" and that the project "will have significant adverse effects on water quality as well as the aquatic resources in the area. It further stated that pursuant to Chapter 403.087, Florida Statutes, and Chapter 17- 4.07, Florida Administrative Code, the permit was denied and that Petitioner had a right to request a hearing as provided under Chapter 17-4.15, Florida Administrative Code. Petitioner filed its petition for review of the denial of the permit under the aforesaid Chapter 17-4.15, Florida Administrative Code on November 15, 1974 (Exhibits 4, 5, 6, 10, 11, 16; testimony of Mr. Garcia, Mr. Hunnicutt).
In processing the application, Mr. Hunnicutt assigned it to Mr. Medley of his office for review. Medley proceeded to contact local agencies including the Volusia County and Brevard County Environmental Sections; Volusia County Public Works Department, St. Johns Water Management District, the Volusia County Environmental Task Force, and the Florida Audubon Society. He testified that all were opposed to the project for various reasons. Aside from the materials attached as exhibits to the application by Petitioner, which consisted of the Brevard Engineering Report, the Harris Report and plans and specifications and chemical test results taken by Department representatives from sample waters ,of the main canal the additional written materials before the Department prior to the, denial of the permit consisted of a letter from Mr. Kinloch, Pollution Control Coordinator of Brevard County, dated October 31, 1974; a letter from the Volusia County Environmental Task Force (a private group of about 25 professional persons who are concerned environmentalists) dated November 4, 1974; and a statement from Cherie Down a biologist with the Brevard County Health Department, dated September 6, 1973 (Exhibits 17,19 and 24). A letter from Gregory Camp, Environmental Control Officer of Volusia County, dated November 5, 1974, was not received in Respondent's Orlando Office until November 7, and therefore was rejected as an exhibit (Exhibit 18 for identification). In addition, Mr. Camp's conclusions were said by the Assistant County Attorney for Volusia County as not being authorized by the County Commission (testimony of Mr. Stuart).
About a week before issuance of the denial letter, a meeting had been held at the Orlando Regional Office attended by its chief, Mr. Senkevich, Mr. Hunnicutt, Mr. Hulbert and Mr.
Medley. The purpose of the meeting was to arrive at a decision concerning Petitioner's application. The procedure at the region was for the staff to decide the issue involved and then to assign an engineer in charge -- in this case, Mr. Hunnicutt -- to sign the decision letter to the applicant. No minutes of this meeting were made and the decision was a collective one by Mr. Hunnicutt, Mr. Hulbert, and Mr. Medley. They expressed their common opinion at the meeting that the permit application should be denied primarily because of considerations of water quality.
Mr. Senkevich testified that he had the authority to overturn, the recommendation of the staff, but since his staff had unanimously concurred in the denial, he felt that their decision was correct. He is a civil engineer and primarily an administrator, but is not familiar with chemistry, biology, or hydrology. At the time, he erroneously believed that hydrological tests had been made by his staff as to the project and was of the incorrect, view that waters of one classification must flow into receiving waters of the same classification. He conceded at the hearing that he had only briefly studied the plan prior to the meeting and indicated that he had been concerned that the project area eventually would be developed with homes that would require septic tanks and cause a considerable problem with the degradation of water in the canals. He therefore was concerned that the canals would not maintain the requirements for Class III waters. He was unfamiliar with the aspect of danger to aquatic resources other than he felt that the main concern had been regarding trees in the area. He recognized that permits could be issued with specified conditions reasonably necessary for the prevention of pollution and that this could have been done, with respect to Petitioner's project. However, he felt that if this were done, it would usually be hard to enforce and so it was easier to insure that the project conformed to requirements at the time of construction rather than attaching conditions to the permit. He believed that if some of the project area which had not been sold could have been utilized for retention of some of the storm water runoff to provide for percolation or water storage, and if certain low areas could have been utilized for something other than lots, this possibly would have cured the objections of the staff. He did not feel that the changes which had been made by the Harris Report were sufficient to overcome the staff's objections to the project. He acknowledged that water tests in the main canal made by the Department since it had been built and prior to November, 1974, had shown an improvement in the canal water quality. He also acknowledged that none of the five criteria for control of storm water runoff set forth by the Department of Pollution Control in an April 1974 memorandum to regional offices (Exhibit
13) were violated by the proposed project (testimony of Hunnicutt, Senkevich).
Mr. Medley, a biologist of the department and the project officer for review of Petitioner's application testified that he was mainly concerned because the project was designed in such a way as to eliminate wetland areas that treat and filter stormwater runoff prior to entry into the Hammock area and provide a place for wildlife to propagate. He felt that water and wildlife quality would diminish by reason of the accelerated flow of water caused by the canal system. This would take place by creating an unstable habitat in which there would be less of a variety of organisms by virtue of polluted waters entering the area. Such a condition would reduce the diversity and quality of species of organisms. He also felt that if water was diverted from one basin to another, it would have an adverse effect on biota because of the change in flow. He further believed that the failure of the applicant to address the question of future development of the project area was significant because once development occurs, canals get storm runoff from surrounding areas, become stagnant and high in nutrients. The state is then obliged to insure water quality and has been unable to do so in other projects of a like nature. He also was concerned because the reports attached to the application contained inaccuracies and it was difficult to determine what was reliable and what was unreliable information. His testimony showed that he, too, was under the erroneous impression that a member of the Department had assessed the hydrological aspects of the project when the Department was processing the application, and acknowledged that it would be difficult to determine if water would be degraded until the actual construction had been completed. However, he expressed his opinion that there is presently insufficient technology to create any canal system that would provide water quality to meet state regulations and it was his belief that wetlands should stay as they are in the interest of water quality. At the hearing, he was unable to describe the proposed canal systems for the project or the proposed vegetative filter area at the end of the canal (testimony of Medley)
Mr. Hulbert, another Department bilogist, testified it was unrealistic to think that the project would not eventually be developed with hones. His concerns basically were similar to those of Medley concerning canal water quality in the future and as to inconsistencies in reports submitted by the applicant. He felt that the basic problem was the project grid design with canals following such design rather than natural drainage contours, but that modifications could have been made in the
design to satisfy the Department's objections if additional buffer zones had been created along and adjacent to the proposed canals. However, he would not have recommended a permit under any circumstances because of the objections of Brevard County and Volusia County. It was his position that in such a situation the Department should deny the permit and then let the matter be determined by a Hearing Officer. He conceded that he had not examined data submitted by either county and that there was, in fact, no data submitted from Volusia County (testimony of Hulbert).
Mr. Hunnicutt, the regional engineer, who is an environmental engineer, testified it was the concensus of all at the meeting that everything they had seen pointed to the fact that project drainage couldn't provide water quality sufficient to meet state requirements. His most objectionable aspect of the project was the drainage pattern and the fact that the canals had to be rather deep and did not follow natural contours, because deep canals below the water table would have standing water and no vegetation as would a more shallow drainage system. He felt that the areas of vegetative growth added by the Petitioner in the Harris Report were not large enough and would not be too effective in removing pollutants by the fast flow rate. He also was concerned about inconsistencies in the applicant's exhibits and saw no point in obtaining more test results on peripheral issues because the Petitioner was "locked in" to a deep canal concept. He, too, was under the mistaken notion that the project had been considered by a hydrologist of the department. Although he felt there were changes that could have been made which would warrant issuance of the permit, there was no point in telling the Petitioner about these because its representatives had said they couldn't make any more changes due to the existing grid system.
He also agreed with Hulbert that if local agencies objected as they had in this case, the Department would deny the application but that when such objections were received, they were generally in accord with the existing view of the departmental staff. He testified that the question of the impact of the project on shellfish harvesting in the Indian River was not a serious consideration in his mind insofar as denial of the permit was concerned. He acknowledged that a permit could be issued with conditions, but the problem then became whether the applicant could maintain control effectively to enforce the conditions (testimony of Mr. Hunnicutt).
A number of expert witnesses of various disciplines were called by the parties to, testify concerning the various ramifications of the proposed construction by the Petitioner. The
following findings of fact are made with respect to specific material aspects of the case:
1. The construction of homes on the tracts at Cape Atlantic Estates in any appreciable volume or any extensive use of the land in the next ten years is highly unlikely. This is due to time required for construction of the drainage facilities, and to the fact that most of the land contracts will not be paid out until the 1980's since owners of the tracts will not secure possession of their land until they have completed payment therefor. The land is not suitable for the installation of septic tanks because of the shallow soil and building permits will not be issued because of the dead-end roads in the project and the absence of paved roads ajoining the property (Exhibit 2, testimony of Trella, Maisel, Blue and Ford).
2. It is impossible to state precisely what the impact of construction of the canal system, roads, ditches, retention ponds and control devices envisioned in the drainage plan will have on the water quality of the canals, Turnbull Hammock, Turnbull Creek, and the Indian River. Drainage of the land area by the construction will produce changes in the environment, but also will make the land accessible to owners, and to some extent may benefit the owners of nearby parcels by draining surface waters and lessening salt water intrusion. One owner of adjoining land objects to any changes in its present natural state (testimony of Blue, Hudson, Stock, Medley, Hunt, Kuperberg, White, De Wees, Fogel & Davenport)
3. Draining and developing the project area will change the surface water flow characteristics by reducing the amount of time water is concentrated or retained in the natural area. This will undoubtedly increase the peak flows and volume of water generated from the area as compared with natural discharge. However, this increase will not exceed the capability of Turnbull Hammock to accept these flows, and increased quantities of waters in the Hammock probably would be beneficial by improving its soil conditions. The increase in peak flows and runoff volumes attributable to the project will not exceed 16 percent of the present ten year storm runoff into the Indian River. In terms of groundwater, recharge in the Cape Atlantic Area occurs only on the Atlantic Coastal ridge. A lowered water table, the result of improving drainage, will decrease the fresh water lead thereby reducing recharge. However, the water table will be lowered only one or two feet and if it is maintained with control structures at these levels as contemplated, improving drainage will not have a serious effect on the quality or quantity of the non-artesian
  water in the shallow aquifer in the area. The water from approximately 80 percent of the land area will flow into Turnbull Hammock and, in the southwest section of the project area, the water will be held in retention ponds and eventually released in a natural flow. Some water will go to the west toward the St. Johns River basin but it is impossible to tell how much flow this will be. The project will have no significant effect on Lake Harney and it is too far removed from the St. Johns River to have any great impact on its conditions. The drainage of the middle area of the project is ill-defined and water can flow either east or west, depending on how much rain has fallen. In the flat area to the north, water can run in both directions. Passage of water through the designed holding areas vegetation, and then reoxogenation in the canals and spreading systems to Turnbull Hammock will improve surface water quality at the site by creating motion. The roadside swales which bring water to the middle lateral canals will lower the ground water table several feet and this may well improve the water system because presently it is ponded and evaporates or filtrates into the atmosphere. Evidence of some salt water intrusion at the lower end of the Hammock area is evidenced by decayed cypress trees which are not salt water tolerant. Additional fresh water in the Hammock would improve this condition (testimony of McElroy, Blue, Clark, Hudson, McClouth; Exhibit 22).
4. Although the waters in the main canal may not always have met all of the regulatory criteria for Class III waters under Department regulations, its quality has improved over the past several years, particularly with respect to the presence of dissolved oxygen. This is in keeping with the opinion of the experts who agreed that construction produces a temporary.
  adverse effect on water quality, but the waters soon stabilize and vegetation thereafter appears. When the canal system is completed and connected, a natural flow of water will occur to wash out minerals and other harmful substances, and increase the amounts of dissolved oxygen in the water. It is therefore considered unrealistic to use the test reports obtained from water samples in the present dead-end main canal because they cannot be considered representative of the quality of the water that will be present when the drainage system is in operation. Although it cannot be determined what the exact quality of the canal waters will be when in full operation, there are certain projected consequences which reasonably may be considered likely to occur. After construction of the drainage facilities, the flow of water Bill accelerate and this, in turn, can diminish the quality of animal and plant life to some degree in the Hammock area by reducing the diversity of species. The Hammock is normally anaerobic and nutrients are
  assimilated there to produce trees, low-lying vegetation, and animal life. Although an increased flow of fresh water will be beneficial to dominant trees, low-lying vegetation might suffer somewhat with a consequent impact on the organisms that feed upon them. However, this is a temporary condition during heavy rain and the degree of change in organisms depends on the frequency of flow and how long the water stays in the Hammock area. Added fresh water in the Hammock will reduce salt water intrusion with consequent beneficial effects. The Hammock can receive a flow of at least two times as much water as is now present during rainfall without adverse effects on the environment as long as urban development has not occurred to produce pollutants in the form of chemicals, tars, oils, and other wastes. Although several expert witnesses foresee eutrophication of the water in the main canal during stagnant periods of the dry season and then flushing of undesirable materials and nutrients accumulated by the eutrophic process into the Hammock during the wet season, the designed holding structures with shallow margins to encourage vegetation and the increased use of natural areas at the north outfall of the project area will filter and reduce substantially the amount of any undesirable material entering the Hammock. Canal systems with standing water are sometimes prone to eventually becoming clogged with aquatic plant life, such as water hyacinths and hydrilla.
  This, in turn, requires periodic destruction of the plants, usually by chemicals, in order to permit waterflow to continue. Though this possibly may be expected in the main, canal at some point in the future, the planned vegetative filtering system should control excessive entry of the chemical and other pollutants into the Hammock. During the period 1970-74, there was no growth of such plants in the dead-end main canal and no indication that it had become eutrophic (testimony of Blue, Morris, Clark, Hudson, Medley, Hulbert, Down, Stock, Ross).
5. Although the area where Turnbull Creek enters the Indian River is designated as Class II waters, oysters or other shellfish are not present to any extent in the designated area. The designated shellfish harvesting area is in the Indian River south of the Brevard County line. The Indian River is moderately high in salinity and a wedge of this water goes into Turnbull Creek and then to the Hammock. The mixing zone of water is at the entrance of Turnbull which flows into the Indian River. Beyond this mixing zone where fresh water meets salt water, if shellfish exist, the limited amount of fresh water entering the river would have no significant effect upon their growth. Oysters need between ten to 30 parts per thousand salinity in the water for best growth and if the project water flowed into the Indian River the salinity would remain the same approximately 20 to 30 parts
  per thousand. In fact, a decrease in salinity in the water to some extent favors growth of oysters. However, increased rainfall and runoff can increase bacterial counts in shellfish and decrease the incidence of shellfish predators (testimony of Clark, Kinloch, Down).
6. No significant diversion of waters from the Cape Atlantic Estates areas from natural drainage basins can be established other than some diversion in the eastern portion of the project area. Other than that the flow of ground water cannot be determined with accuracy and, in any event, the project would have little effect on surrounding lakes in the St. Johns River basin. Diversion would seldom occur except when there is a major storm because unless rainfall exceeds one or two inches an hour, it normally will be absorbed by the sandy soil (testimony of Blue, McClough, Hudson).
CONCLUSIONS OF LAW
The applicable statute governing the granting of permits of the type sought in the instant proceedings is chapter 403, Florida Statutes (The Florida Air and Water Pollution Control Act). The broad legislative declaration of policy in the act, .s set forth in section 403.021 in pertinent part as follows:
1. The pollution of the air and waters
  of this state constitutes a menace to public health and welfare, creates public nuisances, is harmful to wildlife, fish and other aquatic life, and impairs domestic, agricultural, industrial, recreational, and other beneficial uses of air and water.
2. It is declared to be the public policy of this state to conserve the waters of the state and to protect, maintain, and improve the quality thereof for public water supplies, for the propagation of wildlife, fish and other aquatic life and domestic, agricultural, industrial, recreational, and other
  beneficial uses, and to provide that no wastes be discharged into any waters of the state without first being given the degree of treatment necessary to protect the beneficial uses of such water.
  * * * * *
  1. It is declared that local and regional air and water pollution control programs
    are to be supported to the, extent practicable as essential instruments to provide for a coordinated statewide program of air and water pollution prevention, abatement and control for the securing and maintenance of appropriate levels of air and water quality.
  2. It Is hereby declared that the prevention, abatement and control of the pollution of the air and water of this state are affected with a public interest, and the provisions of this act are enacted in the exercise of the police powers of this state for the purpose of protecting the health, peace, and safety, and general welfare of the people of this state.
  3. The legislature finds and declares that control, regulation, and abatement
  of the activities which are causing or may cause pollution of the air or water resources
  in the state and which are or may be detrimental to human, animal, aquatic, or plant
  life, or to property, or unreasonably interfere with the comfortable enjoyment
  of life or property be increased to insure conservation of natural resources, to insure a continued safe environment, to insure purity of air and water, to insure domestic water supplies, to insure protection and preservation of the public health, safety, welfare, and economic well-being, to insure and provide for recreational and wildlife needs as the population increases and the economy expands, to insure a continuing
  growth of the economy and, industrial development.
  
  The stated policy therefore is to prevent and abate pollution, if possible, and control it to the degree necessary to protect the beneficial uses of waters into which any wastes may be discharged. Section 403.031 of the act defines certain terms which are important to an understanding of the law. It defines "pollution" generally as the presence of substances or contaminants which are or may be potentially harmful to human health or welfare, animal or plant life, or property, or which unreasonably interfere with the enjoyment of life or property; including outdoor recreation. "Contaminant" is any substance which is harmful to plant, animal or human life and "waste" includes substances which may pollute or tend to pollute waters of the state. "Installation" is any structure, equipment, facility, or appurtenances thereto, or
  operation which may emit water contaminants in quantities prohibited by rules of the department.
The Department of Pollution Control (now Department of Environmental Regulation) derives its authority from Section
403.061 which confers upon it the power and duty to control and prohibit pollution of water in accordance with the law and authorizes it to adopt, modify, and repeal rules and regulations to carry out the intent and purposes of the act. It is also empowered to issue such orders as are necessary to effectuate the control of pollution and enforce the same by appropriate administrative and judicial proceedings. The statute further provides for the classification of waters of the state in accordance with their present and future beneficial uses, after public hearings. It provides that the Department shall establish a permit system whereby a permit may be required for the operation construction or expansion of any installation that may be a source of water pollution and provides for the issuance and revocation of such permits and for the posting of an appropriate bond to operate. Although providing for departmental consultation with any person proposing to construct a pollution control system as to any problems incident thereto, it does not relieve the individual from compliance with the act, rules and, regulations of the department or any other provisions of law. Section 403.062 gives the department general control and supervision over, inter alia, underground water, streams, canals, and ditches under the jurisdiction of the state insofar as their pollution may affect the public health or impair the interests of the public or persons lawfully using them.
Section 403.061 also requires that notice be given to the department prior to the undertaking of the construction or installation or expansion of any new water contaminant sources and that within 30 days of receipt of such notice, the department shall require the submission of plans, specifications and other information deemed necessary to determine whether the construction or installation will be in accord with applicable law, rules and regulations. It further provides that if within 60 day's of receipt of this information the department determines that the proposed construction will not be in accordance with the act or its rules or, regulations, it shall issue an order prohibiting the construction or installation and that failure to issue such an order within the time prescribed will be a determination that the construction may proceed. Petitioner contends that the Respondent did not comply with the terms of this provision because the letter from Mr. Hunnicutt denying the permit (Exhibit 6), did not constitute an "order", and that, accordingly, Petitioner could
have proceeded with the project without a permit. In this connection, although Petitioner is somewhat late in alleging noncompliance with the cited statutory provision and, although it is true that Mr. Hunnicutt's letter was not framed in the clear terms of an order, a reasonable reading of the letter, coupled with testimony of its author, leads to the conclusion that the language employed inferentially, if not directly, prohibited the proposed construction by advising that the permit was denied.
Accordingly, Petitioner's contention in this respect is considered to be without merit.
The Orlando Regional Office of the Department denied the permit pursuant to Section 403.087, Florida Statutes, and Chapter 17-4.07 Florida Administrative Code. Section 403.087(1) provides that no stationary installation which will reasonably be expected to be a source of water pollution shall be operated, maintained, constructed, expanded, or modified without an appropriate and currently valid permit issued by the department unless exempted by department rule. Section 403.087(2) pertinently provides that the department shall adopt, amend or repeal rules, regulations, and standards for the issuance, denial, or revocation of permits and sub-section (4) provides that the department shall issue a permit to construct, operate, maintain, expand, or modify an installation which may reasonably be expected to be a source of pollution only when it determines that the installation is provided or equipped with pollution control facilities that will abate or prevent pollution to the degree that will comply with the standards or rules promulgated by the department except as provided in Section
403.088. Section 403.088 primarily concerns the discharge of waste from facilities such as sewage treatment plants and the like into receiving waters, but also is deemed applicable to operation and maintenance of canals, roads and ditches when constructed by Petitioner.
Petitioner contends that the term "stationary installation" as used in Section 403.087(1), does not apply to its proposed canals, roads, and ditches. Although the word "stationary" is not defined in the statute or rules, its meaning is clear and would apply to, the non-movable roads and canals in question. The construction of these things also falls within the definition of "installation" as being "facilities" which, in turn, can be defined generally as something built to serve a particular purpose.
Petitioner also contends that Mr. Hunnicutt was not shown to have the authority to grant or deny the permit in that he had ,not been specifically designated as a "permitting agent" by
the department. In this respect, Rule 17-4.-07(10), Florida Administrative Code, provides that "the Department's duly authorized permitting agents shall have the function of accepting, processing handling, and reviewing all permit applications and the issuance and denial of permits on the Department's behalf subject to review in accordance with Section 1.1-4.15". Rule 17-4.02(7) defines "permitting agent" as "any person employed by the Department who is authorized by the Board to issue or deny specified permits". Although there was no evidence showing a specific authorization by the Pollution Control Board for Mr.
Hunnicutt to act as a permitting agent, testimony of Mr. Senkevich, his superior at the regional office, established that the region had been delegated the authority to issue permits in behalf of the department, and that he had authorized Mr. Hunnicutt as regional engineer to act in this capacity. This was a sufficient showing that Mr. Hunnicutt was empowered to act as a permitting agent, in the absence of evidence to the contrary.
Petitioner also asserts that the respondent did not follow its own regulations with respect to Rule 17-4.07(2), which provides that when an application is found deficient in any respect or required information has not been submitted to the Department, the application shall not be accepted, but that the Department shall notify the applicant of the deficiencies or lacking information and allow a reasonable time for corrections or submission of the necessary information. Petitioner's contention in this' regard is that by denial of the permit for stated reasons, obviously the application was deficient in some respects and certain required information obviously had not been submitted to the Department and that, therefore, Petitioner should have been, notified so it could cure any necessary deficiencies or submit any further required information. The evidence establishes that Petitioner's representatives had consulted with members of the Respondent's regional office and headquarters for some two years prior to action upon the application. During this extended period, there were numerous meetings, telephone calls and consultations between the Petitioner's representatives and the agency at which various aspects of the project were discussed and suggestions made by agency representatives. Additionally, the letter of Mr. Woods to Petitioner in June of 1974 specified various broad objections to the proposed project. This resulted in the preparation by the Petitioner of the Harris Report designed to cure any such objections and a meeting in August with Mr. Hunnicutt and Mr. Medley to discuss the changes incorporated into the plan. At this point, it was apparent by statements of Petitioner's representatives that nothing further could be done to change the basic outlines of the project, that there was no point
in delaying submission of the application and that it was so advised at that time by Mr. Hunnicutt. The mere fact that the permit was denied for various reasons does not mean that the Respondent failed to follow Rule 17-4.07(2). The application in itself was not "deficient" in that it was complete and properly executed with required supporting documents and exhibits. It is concluded that Respondent did not fail to follow its own regulations in that respect.
The statutory criteria for the issuance of permit as heretofore stated in Section 403.087(4) require that the installation must be provided or equipped with pollution control facilities that will abate or prevent pollution to the degree that will comply with the standards or rules of the Department. Rule 17-407(1) implements this statutory provision by stating that a permit may be issued upon such conditions as the Department may direct only if the applicant affirmatively provides the Department with reasonable assurance, based on plans, test results and other information, that the construction, operation, or activity of the installation will not discharge, emit or cause pollution in contravention of Department standards, rules or regulations. Rule 17-4.04(3) restates the above-cited statutory provision. Although Petitioner contends that the only construction permit, if any, should be required, it is considered that an operation permit is also appropriate in that the definition of same in Rule 17-4.02(2) defines "operation permit" as "the legal authorization granted by the Department to operate or maintain any installation for a specified period of time" (Emphasis supplied). Since the roads and canals contemplated by the Petitioner will require maintenance indefinitely, such permit is required.
In view of the broad statutory definition of pollution which includes substances which are or may be potentially harmful to human health and welfare, animal or plant life, or property, the determination of the Department that a permit was required by Petitioner was appropriate. Rule 17-4.07(1) places the burden upon the applicant to provide the Department with "reasonable assurance" that the proposed activity will not exceed the pollution standards of the Department. The stated grounds for denial of the permit were limited to "significant adverse effects on water qualify as well as the aquatic resources in the area." Although the letter of Mr. Woods to Petitioner's representative (Exhibit 10) purported to embrace within the term "water quality" the diversion of waters across natural barriers into separate watersheds, draining of swamps, marshes and wetlands', and lowering of the ground water table, neither the statute nor the rules and regulations of the Department address any of these items
as constituting specific disqualifying factors for the issuance of permits. Chapter 17-3, Florida Administrative Code, concerns itself exclusively with the presence of pollutants, in the water and establishes water quality standards for concentrations of substances such as fluorides, dissolved oxygen copper, zinc, lead, iron and the like for the various classifications of state waters. It, was knowledged by all the parties that the waters of the project area including the proposed canals, ditches, Turnbull Hammock and Turnbull Creek are and would be Class III and that certain waters in the Indian River which conceivably might be affected by the flow. Accordingly, as long as water quality tests show that the presence of pollutants will not be in excess of the concentrations set forth In Chapter 17-3, there is no basis for denying a permit application. The test results obtained in the dead-end main canal should not be used as a basis for determining excessive pollution because the canal was not in operation and performing the functions for which it was designed and built. It is concluded, from the Findings of Fact that when the drainage plan is constructed and in operation, water quality tests in the affected waters will meet state standards.
Rule 17-3.01 provides that "where a new or increased source of pollution poses a possibility of degrading existing high water quality, such project development shall not be issued a Department permit until the Board is satisfied that such development will not be detrimental to the best interests of the state and necessary to its social and economic development. In administering the policy, high quality receiving waters will be protected by requiring as a part of the initial project design and highest and best practicable treatment available under existing technology". (Emphasis supplied). It is clear that Petitioner sought the advice and assistance of experienced consultants in preparing the environmental study by the Brevard Engineering Company. It later had the Harris Report prepared to meet the preliminary objections of the Department. Although some errors and inconsistencies were found in the reports, they represented the "highest and best practicable treatment available under existing technology" when taking into consideration the circumstances of the original drainage plan having been formulated to conform to the "grid system" of subdividing the land. It is indisputable that from an ecological standpoint, the retention of land areas in their natural state is highly desirable, but on the other hand, the social and economic development of the state requires a balancing of interests in this respect as contemplated by the statutory policy and rules of the Department.
In view of the foregoing considerations and in the, light of the Findings of Fact heretofore made in this report, it is concluded that Petitioner complied with the statute and rules and regulations of the Department in providing "reasonable assurance that construction and operation of the proposed facilities will not discharge, emit or cause pollution in contravention of Department standards, rules or regulations. It is noteworthy that the rules do not require absolute, but only "reasonable" assurances in this respect. Evidence was presented by the Respondent in his application and accompanying documents as explained at the hearing, to establish it is unlikely that implementation of the drainage plan will cause degradation in the quality of the affected waters. Although the Department was justified in anticipating long-range consequences of construction and operation of the proposed facilities, there was insufficient evidence to determine that wholesale construction of homes or other development with attendant sources of pollution would ensue in the foreseeable future. Additionally, the heavy reliance evidently placed by Respondent upon objections of various county and state employees and members of environmental groups, some of whom appeared to be voicing private rather than official objections, detracted from the necessary objectivity in rendering the decision. Although the concerns expressed by Mr. Woods in his letter to Petitioner could have some bearing on the eventual water quality of the area, they were speculative in nature and dealt with generalities rather than specifics susceptible of accurate assessment.
Therefore, under the posture of the evidence, it is concluded that the denial of the permit by the Orlando regional office was without sufficient basis or justification and should not operate to foreclose Petitioner from proceeding with its drainage plan. On the other hand, it is reasonable to assume that the construction and operation of the canal drainage system could well pose future problems in maintaining water quality standards required under the applicable regulations. These problems primarily will be the quality of the water which flow through the canal system to Turnbull Hammock. Rule 17-4.07(5) states that the Department may issue any permit upon specified conditions reasonably necessary for the prevention of pollution. This could have, and perhaps should have, been done at the outset by the Department. The testimony of Departmental personnel indicated that this could have been accomplished instead of denying the permit outright, but it was simpler to require absolute compliance with required standards before issuing the permit than to try and enforce conditions after the permit had been issued and the original developer may have disassociated himself with the
project. Although it is recognized that it would be difficult to reverse the situation after the canals and roads have been constructed, as compared to the shutting down of a sewage treatment plant, nevertheless sufficient safeguards may be attached to the issuance of the permit to insure initial and continuing acceptable water quality. For example, requiring the Petitioner to post an appropriate bond under the provisions of Rule 17-4.21(d) is one means to accomplish this purpose. Aside from the requirements of Rules 17-4.21 and 17-4.22 for construction and operation permits, it also should be incumbent upon the Petitioner to show that responsibility for continuing maintenance of the facilities to insure acceptable water quality has assumed by it or other responsible persons agencies or governments. The undertakings of Volusia County as confirmed in Exhibit 1 and its agreement with Petitioner are considered sufficient assurance of this aspect insofar as the, land located in that county is concerned. Petitioner should be required to present evidence of a similar undertaking as to the portion of the land located in Brevard County prior to issuance of a permit.
If it is later determined that any of the criteria of Rule 17-4:08 apply, action may be taken under that provision to secure modification of permit conditions. This procedure will insure the, placement of necessary restrictions upon those responsible ,for maintenance of the system in the event extensive development or urbanization of the area occurs in the future.

RECOMMENDED ORDER

It is Recommended that the Department of Environmental Regulation issue an Order granting to Petitioner a permit to construct and thereafter operate the pollution sources specified in the application therefor, upon specified conditions reasonably necessary for the prevention of pollution pursuant to Section

(3), Florida Statutes, and Rule 17-4.07(5), Florida Administrative Code, as follow:
1. Petitioner must post an appropriate bond, pursuant to Rule 17-4.21(d), Florida Administrative Code.
2. Petitioner must provide the Department of Environmental Regulation with evidence

that responsibility for continuing maintenance of the facilities located in Brevard County

to insure acceptable water quality has been

assumed by it or other responsible persons, agencies, or governments.

DONE and ENTERED this 19th day of December, 1975, in Tallahassee, Florida.

THOMAS C. OLDHAM

Hearing Officer

Division of Administrative Hearings Room 550, Carlton Building Tallahassee, Florida 32304

(904) 488-9675

COPIES FURNISHED:

D. L. Middlebrooks, Esquire Dennis M. Solomon, Esquire David Gluckman, Esquire

Clifton McClelland, Jr., Esquire Mr. Charles Lee

Peter B. Heebner, Esquire Patrick G. Kennedy, Esquire

================================================================= AGENCY FINAL ORDER

=================================================================

STATE OF FLORIDA

DEPARTMENT OF ENVIRONMENTAL REGULATION

In the Matter of:

Petition for Review of Denial

of Permit, CAPE ATLANTIC Case No. 75-1090 ESTATES, Volusia/Brevard

County, Florida.

ORDER

Pursuant to Section 403.061(9), Florida Statutes, and Rule 17-1.42, Florida Administrative Code, a Hearing Examiner was designated by the Department to conduct a public hearing on the above-styled case. After due notice to the parties, the hearing was held at the Volusia County Courthouse Annex, Daytona Beach, Florida, from October 6, 1975, through October 16, 1975.

On December 19, 1975, the hearing Officer fowarded to Joseph

W. Landers, Jr., Secretary, Department of Environmental Regulation, head of the Department of Environmental Regulation (hereinafter Department), a Recommended Order, containing Findings of Fact, Conclusions of Law, and a Recommended Order, a copy of which is attached hereto as Exhibit A.

On December 29, 1975, and December 30, 1975, the Department and Intervenors, Brevard County and Florida Audubon Society, filed Petitions for an extension of time for filing written responses to the Hearing Officer's Recommended Order. On December 31, 1975, the Secretary of the Department issued an Order extending the time during which parties could file written responses to January 20, 1976.

All parties thereafter filed Responses to the Recommended Order, pursuant to Department Rule 17-1.26(2), Florida Administrative Code. Petitioner, Cape Atlantic Estates, also filed Replies to each Response.

After due notice, on April 12, 1976, this matter was considered by the Secretary for final disposition at a public meeting at Tallahassee, Florida. All parties were given the opportunity to make oral arguments in support of their Responses. Extensive oral arguments were presented by the Department, Intervenor Brevard County, and the Petitioner, Cape Atlantic Estates. At the close of the hearing, the Secretary stated that because of the unusual complexity of this case and its extensive record, the Secretary notified the parties that he would render a final order disposing of this matter within twenty-one (21) days.

On February 5, 1976, Petitioner filed a Motion to Strike the Department of Environmental Regulation's Response to Recommended Order. On April 12, 1976, Petitioner also hand delivered a Motion for Order. The Motion to Strike is hereby denied. The Motion for Order is grounded on the requirement of Section 120.59(1), Florida Statutes, that the final order be rendered within ninety (90) days after a recommended order is submitted. Inasmuch as this administrative adjudicatory process began prior to January 1 1975, and all parties did not consent to conducting the Proceeding in accordance with the provisions of Chapter 74-310 (Laws of Florida, 1974), it was conducted under and is governed by Chapter 120, Florida Statutes, 1973. See Section 120.72(2), Florida Statutes, and Recommended Order (page 2). No such time limitation is contained within Chapter 120, Florida Statutes, 1973.

Accordingly, the Motion for Order is hereby denied.

This order of the State of Florida Department of Environmental Regulation is rendered pursuant to Section 403.061(10), Florida Statutes, and Chapter 120, Florida Statutes, 1973, and reflects the final decision of the Department on this matter.

In considering the Hearing Officer's Recommended Findings of Fact, the test applied in rendering this order is whether the finding of fact is based on "competent substantial evidence" in the transcribed record. In DeGroot v. Sheffield, 95 So.2d 912 (Fla.l957) at 916, the Florida Supreme Court defined this phrase as follows:

We have used the term 'competent sub stantial evidence' advisedly. Substantial evidence has been described as such evidence as will establish a substantial basis of fact from which the fact at issue can be reasonably inferred. We have stated it to be such relevant evidence as

a reasonable mind would accept as adequate to support a conclusion. Becker v. Merrill,

155 Fla. 379, 20 So.2d 912; Laney v. Board of Public Instruction, 153 Fla. 728, 15 So.2d 748. In employing the adjective 'competent' to modify the word 'substan

tial', we are aware of the familiar rule that in administrative proceedings the formalities

in the introduction of testimony common to the courts of justice are not strictly

employed. Jenkins v. Curry, 154 Fla. 617,

18 So.2d 521. We are of the view, how ever, that the evidence relied upon to sustain the ultimate finding should be sufficiently relevant and material that a reasonable mind would accept it as adequate to support the conclusion

reached. To this extent, the 'substantial' evidence should also be 'competent'. (citations omitted)

In Florida Rate Conference v. Florida Railroad and Public Utilities Commission, 108 So.3d 601 (Fla. 1959) at 607, the Court expanded on this definition:

Although the terms 'substantial evidence' or competent substantial evidence' have been variously defined, past judicial interpretation indicates that an order which bases an essential finding or conclusion solely on unreliable evidence should be held insufficient. In the

case of N.L.R.B. v. A.S. Abell Co., 4 cir., 1938, 97 F.2d 951, 958, a federal court said that the substantial evidence rule is not satisfied by evidence which merely creates a suspicion or which gives equal support to inconsistent inferences. And in Milford Copper Co. of Utah v.

Industrial Commission, 1922, 61 Utah 37, 210

P. 993, 994, the court said that evidence to be substantial must possess something of substantial and relevant consequence and must not consist of vague, uncertain, or irrelevant matter not carrying the quality of proof or having fitness to induce conviction. Surmise, conjecture,

or speculation have been held not to be substantial evidence. White v. Valley Land Company, 1958, 64 N.M. 9, 322 P.2d

707, 709.

An effort has been made to fairly apply this test with careful deliberation. It is recognized that the Hearing Officer had the advantage of having observed the demeanor and assess the credibility of witnesses, and was better able to judge the weight of conflicting testimony on material issues. No finding of fact has been disregarded or rejected simply because the Secretary, from a review of the record, has formed an opinion at variance with that of the Hearing Officer.

With respect to conclusions of law, it is recognized that an agency has increased latitude to reject or modify any conclusions of law or interpretations of administrative rules contained in the recommended order. See Section 120.57(9), Florida Statutes.

After careful consideration of the transcribed record, the exhibits, pleadings, and oral arguments of the parties, the Secretary, as head of the Department, enters the following findings and conclusions of law:

I. COMPETENT SUBSTANTIAL EVIDENCE WAS NOT PRESENTED WHICH PROVIDES REASONABLE ASSURANCE THAT THE CONSTRUCTION, OPERATION AND MAINTENANCE OF THE PROPOSED DRAINAGE SYSTEM WILL NOT CAUSE POLLUTION IN VIOLATION OF CHAPTER 403, FLORIDA STATUTES, OR THE STANDARDS OR RULES OF THE DEPARTMENT.

In Conclusion of Law No. 9, Recommended Order (R.O.), Page 101 the Hearing Officer correctly concluded that the Department "was justified in anticipating
long-range consequences of construction and operation of the proposed facilities". The record fails to reflect competent substantial evidence which addresses the long-range consequences.

It is evident that the water quality in the main and secondary canals is heavily dependent on the nature and extent of future development and land use in this tract. The record reflects that there are no deed restrictions prohibiting future use of the property (Vol. 2, p. 50). Two of Petitioner's
expert environmental witnesses had been told that the property would be used for rustic ranchettes (Vol. 7,
p. 216; Vol. 8, p. 8). Petitioner's witness, Clark, testified there would be no permanent structures
and that perhaps somebody could take a mobile camper on the property (Vol. 8, p. 126), while Petitioner's witness Morris testified that a rustic ranchette would be a building constructed on a certain size lot, a "nice dwelling". (Vol. 7, p. 217).

Some 5,000 remote purchasers are purchasing lots from 1 1/4 to 2 1/2 acres each (R.O., p. 4). While the Public Offering Statement disclaims a Homesite Offering, it promises installation of improvements consisting of drainage and dirt roads. When com pleted, the land will be dry, and no fill will be
necessary for use. The location of nearby Elementary, Junior High, and ,High Schools, hospitals, churches, fire protection and police protection are expressly noted (Exhibit 2)

The Recommended Order, page 15 paragraph 7.a., reflects the Hearing Officer's belief that extensive construction of homes, or use of the land "in the next ten years is highly unlikely" (emphasis added). There is no evidence in the record to support the inference that construction of future development or land use should be limited to the "next ten years". Page 15, paragraph
7.a. of the Recommended Order states that building permits will not be issued because of dead-end roads and the absence of paved roads adjoining the property. There is no evidence in the record to support this statement with respect to the 12,000 acres of the tract which lie in Volusia County. The record is replete with testimony by both Petitioner's and the Department's expert witnesses that the quality of the primary and secondary canals will be directly related to and affected by the character and extent of future adjacent development and land use. Petitioner relied heavily upon the expert testimony of witness Hudson, an environmental engineer. In response to the question of what effect would intense suburban development have on the quantity and quality of runoff into Turnbull Hammock, witness Hudson answered that "there would be some reduction in the quality of the water in Turnbull Hammock, some impairment." (Vol. 7, p. 275)(emphasis added)

The Hearing Officer's finding recognizes the dependence of canal water quality and Hammock environment on the character of the future development:
The Hammock can receive a flow of at least two times as much water as is now present during rainfall without adverse effects on the environment as long as urban development has not occurred to produce pollutants in the form of chemicals, tars, oil, and other wastes.

The Petitioner failed to present substantial evidence which would support conclusion concerning the character and extent of future construction and land use in this 14,000 acre tract. In the absence of a conclusion concerning long-term future development, the future quality of the receiving waters in the drainage canals cannot be reasonably ascertained, and no reasonable assurance can be provided addressing the effect of those unascertained drainage waters on the canals, Turnbull Hammock, Turnbull Creek, and the Indian River.
The Hearing Officer concluded that the proposed drainage canals required long-term, indefinite maintenance. (R.O., p. 18, paragraph 7.d. and p. 25, paragraph 6). In fact, he concludes:

...it is reasonable to assume that the construction and operation of the canal drainage system could well pose future problems in maintaining water quality standards required under the applicable regulations. (R.O., p. 28, paragraph 10)

Petitioners presented no evidence, in the record, which provides any assurances, whatsoever, with respect to maintenance of the drainage canals located within Brevard County after the contracts for sale are performed and titles pass to the new owners.

Exhibit 27 evidences an agreement between Volusia County and Atlantic International Investment Corp. for the implementation and maintenance of the drainage plan for Cape Atlantic Estates; however, it does not evidence any responsibilities regarding the prevention of water quality degradation.

The failure by Petitioner to provide reasonable assurance of future canal maintenance cannot be remedied or cured by placing a condition requiring such assurance on the requested permit.
There is no competent substantial evidence in the record which provides the Department with reasonable assurance that the vegetated waterways and settling ponds will remove pollutants from the waters sufficiently to assure no injurious impact on fish,
plant, and animal life in Turnbull Hammock, Turnbull Creek, and the Indian River. Petitioner's witness, Blue, who designed the modified, vegetated drainage system did not know what effect construction of homes on the tract would have on the water quality of the canal system. (Vol. 5, p. 231). Petitioner's expert witness Morris, when asked if the vegetative filter system could remove exotic chemicals such as oil, gas, asphalt, pesticides, and herbicides, answered that such removal would depend on retention and he was "not qualified" to speak on that (Vol. 7, p. 218).
Petitioner's expert witness, Clark, could not definitely say that the proposed vegetated waterways are sufficient to remove the nutrients so that there will be no adverse environmental impact on Turnbull Hammock or the Indian River, (Vol. 8, p. 96). In fact, stating he was not certain exactly what type of development would occur in the tract, witness Clark testified that it would be "pretty hard to manage" runoff from hard-topped land or condominiums. (Vol. 8, p. 63).

The Department's expert biologist, witness Hulbert, testified that he did not believe that the vegetated waterways were sufficient to prevent detrimental environmental effects on the waters which flowed out of the tract area. (Vol. 13, p. 84).
When carefully examined, numerous provisions of the Recommended Order indicate that the Hearing Officer had serious misgivings and concerns regarding the environmental impact of the construction and operation of the proposed extensive drainage system.

He admits "it is impossible to state precisely what the impact of construction of the canal system, roads, ditches, retention ponds, and control devices will have on the water quality of the canals, Turnbull Hammock, Turnbull Creek, and the Indian River. (R.O., p. 15). He further admits that it cannot be determined what the exact quality of the canal waters will be when in full operation. (R.O., p. 17).

Conceding that "minerals and other harmful substances" will collect in the completed canal system, he answers that a flow of water will "wash out" such substances. (R.O., p. 17). But how will such harmful substances affect the canal waters, and the environment into which they are discharged?

He seems to anticipate the clogging of the main canal by aquatic plants, and expects periodic destruction of the plants by chemicals. (R.O., p. 18). But, he concludes that the planned
vegetative filtering system should control "excessive entry of the chemicals and other pollutants into the Hammock". (R.O., p. 18).

No competent substantial evidence is presented by the Petitioner which provides reasonable assurances that the quality of the drainage canal waters will, during both wet and dry seasons, meet state water quality standards and not adversely affect plant, animal and aquatic life.
Chapter 17-4.03, Florida Administrative Code, states that the Department may issue a permit to a stationary installation which will reasonably be expected to be a source of pollution "only after it is assured that the installation will not cause pollution in violation of any of the provisions of Chapter 403, Florida Statutes, or the rules and regulations promulgated thereunder".

Pollution is defined in Section 403.031(2), Florida Statutes, as follows:

...the presence in the outdoor atmosphere or waters of the state of any substances, con taminants, noise, or man-made or man-induced alteration of the chemical, physical, bio logical, or radiological integrity of air or water in quantities or at levels which are or may be potentially harmful or injurious to human health or welfare, animal or plant life, or property, or unreasonably interfere
with the enjoyment of life or property, including outdoor recreation.

The Hearing officer erred in his Conclusions of Law when he unduly narrowed the Department's jurisdiction to include only the specific water quality criteria contained in Chapter 17-3, Florida Administrative Code. The 1974 amendments to Chapter 403, Florida Statutes, significantly broadened the meaning of "pollution" 50 as to include man-induced alterations of the chemical, physical, and biological integrity of water bodies and their environmental impacts.
The Hearing Officer correctly recognized that it is difficult, if not impossible, to reverse adverse environmental effects which may flow from this installation after it is constructed and in operation. (R.O., p. 28).

It is unrealistic and ludicrous to assume that 5,000 purchasers of lots who finally complete payments under their
eleven or twelve year contracts will not seek to utilize their property by constructing dwellings. Petitioners will no longer be owners responsible or liable for resulting environmental damages. A bond, as suggested by the Hearing Officer, would be a futile gesture.

The function and purpose of permitting under Chapter 403, Florida Statutes, is to prevent the construction of installations destined to eventually cause such inevitable destruction to the environment and natural resources of the State of Florida.

Having considered the Recommended Order, including Findings of Fact and Conclusions of Law, together with the pleadings and transcribed record in this case, it is, therefore,

ORDERED by the State of Florida Department of Environmental Regulation as follows:
1. The Findings of Fact and Conclusions of Law heretofore contained in this Order are hereby adopted and approved.
2. The Findings of Fact and Conclusions of Law contained in the Recommended Order (Exhibit A), to the extent that each is consistent with and not contrary to the Findings and Conclusions adopted in paragraph l. above, are hereby adopted and approved.
3. To the extent any Finding of Fact or Conclusion of Law contained in the Recommended Order (Exhibit A) conflicts with, or is contrary to the Findings of Fact and Conclusions of Law adopted in paragraph l. above, each is expressly rejected.
4. The Recommended Order contained on page 29 of the Hearing Officer's Recommended Order is expressly rejected.
5. The Application submitted by Petitioners for a permit to construct and thereafter operate the pollution sources specified in the Application be, and the same is hereby, denied.

DONE AND ENTERED this 4th day of May, 1976, in Tallahassee, Florida.

JOSEPH W. LANDERS, JR., Secretary

State of Florida Department of Environmental Regulation

2562 Executive Center Circle, East Montgomery Building

Tallahassee, Florida 32301

COPIES FURNISHED:

D. L. Middlebrooks, Esquire Dennis M. Solomon, Esquire David Gluckman, Esquire

Cliffton McClelland, Jr., Esquire Mr. Charles Lee

Peter B. Heebner, Esquire Patrick G. Kennedy, Esquire

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that copy of the foregoing Order has been furnished to the following named persons by United States Mail this 4th day of May, 1976.

JAMES R. BINDELL

D. L. Middlebrooks, Esquire

226 South Palafox Street Pensacola, Florida 32501

Dennis M. Solomon, Esquire 8397 NE Second Avenue Miami, Florida 33138

David Gluckman, Esquire State of Florida Department of Environmental

Regulation

2562 Executive Center Circle, East Montgomery Building

Tallahassee, Florida 32301

Cliffton McClelland, Jr., Esquire Assistant County Attorney Brevard County

Post Office Box 157 Titusville, Florida 32780

Peter B. Heebner, Esquire

125 East Orange Avenue Daytona Beach, Florida

Mr. Charles Lee Field Representative

Florida Audubon Society Post Office Drawer 7 Maitland, Florida 32751

Patrick G. Kennedy, Esquire Post Office Box 438

Deland, Florida 32720

Docket for Case No: 75-001090

Issue Date	Proceedings
Mar. 11, 1977	Final Order filed.
Dec. 19, 1975	Recommended Order sent out. CASE CLOSED.

Orders for Case No: 75-001090

Issue Date	Document	Summary
May 04, 1976	Agency Final Order
Dec. 19, 1975	Recommended Order	Grant permission to operate pollution sources subject to conditions set out in the order.

Source: Florida - Division of Administrative Hearings

CAPE ATLANTIC ESTATES vs. DEPARTMENT OF ENVIRONMENTAL REGULATION, 75-001090 (1975)

Docket for Case No: 75-001090

Orders for Case No: 75-001090

Clifton Adamson McClelland, Jr.

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CAPE ATLANTIC ESTATES vs. DEPARTMENT OF ENVIRONMENTAL REGULATION, 75-001090 (1975)

Docket for Case No: 75-001090

Orders for Case No: 75-001090

Lawyers who claimed

Clifton Adamson McClelland, Jr.

Counsels

Cites

Florida Laws (8)

Authorities (4)

Cited By (1)

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