STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ARTHUR R. KNUST, )

)

Petitioner, )

)

vs. ) CASE NO. 76-1649

) DEPARTMENT OF ENVIRONMENTAL ) REGULATION, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, James E. Bradwell, held a public hearing in this case on October 6, 1977, in Sebring, Florida.

APPEARANCES

For Petitioner: Jon H. Anderson, Esquire

Marble Arcade, Suite 414 Lakeland, Florida 33801

For Respondent: Carole Haughey, Esquire

Department of Environmental Regulation 2562 Executive Center Circle, East Montgomery Building

Tallahassee, Florida 32301

ISSUE

This case involves a dispute between the Petitioner, Arthur Knust, and the Respondent, State of Florida, Department of Environmental Regulation, concerning a canal the Petitioner excavated in a subdivision of Martha Estates, Highlands County, Florida, which was connected to the waters of Lake Charlotte without obtaining permits. At the close of the hearing, the parties were invited to submit post-hearing memoranda which have been considered by me in preparation of this recommended order. Based thereon, and the entire record compiled herein, I make the following:

FINDINGS OF FACT

1. Petitioner is the owner of a parcel of land located in Highlands County, bordering on Lake Charlotte, a navigable body of water of the State of Florida. Petitioner has developed several waterfront lots in his uplands by excavating a series of canals off Lake Charlotte. Before the last canal in this series was completed, Petitioner was notified by Respondent's chief chemist and expert witness, Don Sessions, concluded that the water within the subject canal was a source of pollution. He found further that from the basis of results obtained from the adjacent canal system, further water quality degradation would

   result as the canal ages. He recommended that a plug be installed at the mouth of the subject canal. On September 28, 1977, Respondent's regional biologist, Richard Cantrell, took bottom grab samples of macroinvertebrate organisms at four stations within the subject and adjoining canals and lake. The species diversity index computed therefrom indicated the existence of an extremely stressed biological community within the subject and adjoining canals, as compared to a relatively healthy community in the lake. (Respondent's Exhibit number 13). Based on his interpretation of data, the physical configuration of the canal and the heavy growth of aquatic vegetation existing therein, he predicted an increase in concentration of toxic substantives in the canal due to a lack of circulation. He further predicted the diffusion of such substantives toward lower concentration within the lake. Finally, to reduce mass loading into the lake, he recommended that a plug be installed at the mouth of the canal. Petitioner's contention that Respondent had not conducted water samples of Lake Charlotte until the plug in dispute here was removed and therefore was unable to determine with any certainty, what effects the canal waters had on the water quality in Lake Charlotte was considered. However apart from the fact that the evidence herein clearly show that the water quality of Lake Charlotte was greater than that of the canals and that as time passes the water quality of Lake Charlotte would worsen due to diffusion from the canal waters, Respondent had the burden of showing that by removing the plug no violations of water quality standards would result in both the short and long term. Chapter 17-3 and 17-4.28, F.A.C. This it failed to do.

   
   

   CONCLUSIONS OF LAW

   
   

2. The Division of Administrative Hearings has jurisdiction over the subject matter and the parties to this action. Chapter 120.57(1), Florida Statutes.

   
   

3. The authority of the Respondent agency is derived from Chapter 403, Florida Statutes and the Rules and Regulations Promulgated thereunder. Respondent agency that a Chapter 403 permit was required for the removal of an earthen plug which separated this canal from the lake via a main interceptor canal. (Respondent's Exhibit 1). Petitioner has never applied for and therefore does not hold a permit from the Department of Environmental Regulation authorizing removal of the plug. The earthen plug at the mouth of the subject canal was removed over a period of approximately two years. Sometime between November 14, 1973 and October 8, 1974, partial removal of the plug had been accomplished (testimony of excavation contractor Jamie Whitaker). On October 8, 1974, the physical barrier between the waters of this canal and the main interceptor canal lay between the mean high water mark. (Respondent's Exhibits number 2, number 2-a, number 3, number 5 and number 11). Private litigation thereafter ensued between the Petitioner and the land purchasers relating to the ease of navigation over the remaining earthen barrier. (Respondent's Exhibits number 9 and number 10). On February 27, 1975, all vestiges of the plug which then lay submerged in two to three feet of water were mechanically removed in performance of an oral contract between Petitioner and contractor Jamie Whitaker. As stated, Petitioner was initially notified of the permit requirements of Respondent agency on November 14, 1973. (Respondent's Exhibit number 1). On October 10, 1974, subsequent to partial removal of the plug, Respondent advised the Petitioner to reinstall the plug. (Respondent's Exhibit number 5). Petitioner's failure to comply therewith resulted in the issuance of a formal notice of violation and orders for corrective action for alleged violation of Section 403.087, Florida Statutes, and Section 17-4.03, F.A.C., on January 20, 1975. On October 21, 1976 and on September 28, 1977, Respondent's field inspectors took water samples at six stations in the subject canal system

   and lake. The inspectors found violations of state water quality standards for dissolved oxygen content at the stations within the subject canal and canal system. Counts of fecal coliform, an indicator of raw sewage contamination, ran twenty times higher within the canal system than in the lake. 1/

   
   

4. Lake Charlotte is a class III body of water of the State of Florida. Section 17-3.21, Florida Administrative Code.

   
   

5. All surface waters within or contiguous with Lake Charlotte are similarly classified waters. Section 17-3.09, Florida Administrative Code.

   
   

6. The applicable statute governing this action (Chapter 403, Florida Statutes) reveals that the broad legislative policy declaration is one of conserving, protecting, maintaining and improving the quality of water of the state and to prevent, abate and control pollution thereof. (Section 403.021, Florida Statutes)

   
   

7. Section 403.087, Florida Statutes, 1977, and 17-403, Florida Administrative Code, provide 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 of Environmental Regulation. These laws were in effect at the time Petitioner dug the subject canal in Martha Estates subdivision, Highlands County, Florida.

   
   

8. A canal is a stationary installation within the meaning of subsection 403.031(8), Florida Statutes, which will reasonably be expected to be a source of water pollution. Sexton Cove Estates, Inc. v. State Pollution Control Board,

   325 So.2d 468 (Fla. 1st DCA 1976); Farrugia v. Frederick, 344 So.2d 921 (Fla. 1st DCA 1977).

   
   

9. The Petitioner herein failed to affirmatively establish or provide reasonable assurances that the short and long term effects of removing the earthen plug herein would not result in violation of water quality criteria, standards, regulations or provisions of Chapter 403, Florida Statutes, or Section 17-4.07; 17-4.28(3), Florida Administrative Code, as was its burden. Yonge v. Askew, 293 So.2d 395 (Fla. 1st DCA 1974).

   
   

10. The canal in question is currently in violation of state water quality standards. Section 17-3.09, Florida Administrative Code.

    
    

11. The connection of the subject canal to waters of the main canal and Lake Charlotte, which are waters of the State of Florida, constitute a violation of Sections 403.087, Florida Statutes and 17-4.03, Florida Administrative Code.

    
    

12. The State of Florida is entitled to relief which will ensure the effectiveness of the Florida Air and Water Pollution Control Act.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, it is hereby recommended:

1. Petitioner install, utilizing methods approved by the Department of Environmental Regulation, a good and sufficient plug at the location of the original plug to isolate the waters of the subject canal from the waters of the main canal and Lake Charlotte.

2. Petitioner reimburse the Department of Environmental Regulation for expenses incurred in its investigation in the amount of Nine Hundred Twenty- Eight Dollars and Twelve Cents ($928.12) based on an itemized account of its expenses which was submitted following the close of the hearing. (Chapter 403.141(1), F.S.).

RECOMMENDED this 2nd day of November, 1977, in Tallahassee, Florida.

JAMES E. BRADWELL, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304

(904) 488-9675

ENDNOTE

1/ In this regard, Petitioner was advised during the early stages of this dispute that inasmuch as the area surrounding the canal system was sandy, there existed a real possibility that septic tank effluents will be leaked into the canal and into Lake Charlotte. (Respondent's Exhibit number 4). Water samples also revealed that counts of biological oxygen demand, which has an inverse relationship to dissolved oxygen, ran 75 times higher within the canal system than in the lake. (See Respondent's Exhibit number 12.

COPIES FURNISHED:

Joseph W. Landers, Jr., Secretary Jon H. Anderson, Esquire Department of Environmental Regulation Marble Arcade, Suite 414 2562 Executive Center Circle, East Lakeland, Florida 33801 Montgomery Building

Tallahassee, Florida 32301

Carole Haughey, Esquire

Department of Environmental Regulation 2562 Executive Center Circle, East Montgomery Building

Tallahassee, Florida 32301

Docket for Case No: 76-001649

Orders for Case No: 76-001649