STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

RICHARD B. BOWDEN, )

)

Petitioner, )

)

vs. ) CASE NO. 76-1655

) STATE OF FLORIDA, DEPARTMENT OF ) ENVIRONMENTAL REGULATION, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, an administrative hearing was held before Diane D. Tremor, Hearing Officer with the Division of Administrative Hearings, commencing at 10:00 A.M. on November 18, 1976, in the Glades County Courthouse, Moore Haven, Florida.

APPEARANCES

For Petitioner: Richard B. Bowden

Post Office Box 155

Moore Haven, Florida 33471

Mrs. Russell H. Adams 1/ South Riverside Drive

Moore Haven, Florida 33471

For Respondent: Ms. Carole Haughey

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

Tallahassee, Florida 32301 FINDINGS OF FACT

Upon consideration of the relevant oral and documentary evidence adduced at the hearing, the following facts are found:

1. Petitioner Richard B. Bowden is the developer of a 52-acre mobile home subdivision which fronts a canal of the Caloosahatchee River in Glades County, Florida, said canal having been excavated some eighteen years ago. There are approximately 29 or 30 lots fronting this 1800 foot long by 70 ft. wide canal and presently there are eight or nine mobile homes on those lots. While the owners of these lots own two or three lots each, there are no deed restrictions regarding a limitation on future lot sales. The lots along the canal are sloped, one half toward the canal and one half away from the canal. Serving this subdivision, there are presently seven or eight septic tanks located approximately 50 feet from the canal water.

2. In order to provide navigational access to the Caloosahatchee River for lot owners in his subdivision, petitioner applied to respondent for a permit to open up the canal into the river. Petitioner proposes to replace a 30 inch by

   30 foot culvert with a 12 foot by 30 foot long culvert in order to connect his dead end canal to the Caloosahatchee River, a Class III water.

   
   

3. The Moore Haven lock is located approximately one and one-half miles upstream from the petitioner's canal. This lock opens and closes approximately

   20 to 30 times per day and provides a fluctuation in water level of 4 to 8 inches. While there was evidence that such water movement would be beneficial in flushing petitioner's canal were it to be opened, there was also evidence that such flushing action would be hampered because of the several abrupt turns in the petitioner's canal.

   
   

4. The Diston Island Conservancy District indicated that it would be favorable to issuance of a permit to breach the levee if petitioner were to construct a fifteen foot dike around the project. Such would protect the District from possible flooding from the River.

   
   

5. The Environmental Section of the Florida Game and Fresh Water Fish Commission recommended to the United States Army Corps of Engineers that petitioner's permit application be denied. This recommendation was based upon a finding that

   
   

   "the existing culvert allows insignificant water exchange between the existing canal and the Caloosahatchee River. This canal, if connected to the river, would become an upland, dead-end system subject to poor water quality. Such canal systems have been shown to accumulate organic sediments, become

   chemically or physically stratified, and become sources of contamination to receiving waters. Therefore, in the best interest of fish and wildlife resources of the Caloosahatchee River, we recommend that the existing culvert be plugged and the canal remain isolated from the river."

   
   

6. By letter dated August 26, 1976, petitioner was advised that the Division of Environmental Permitting intended to deny the petitioner's permit application. As reasons therefore, the Division stated:

   
   

   "The lack of circulation and flushing inherent in the proposed dead-end system will lead to stratification and stagnation within the canal with resulting buildup of pollutants. Runoff from the residential development, both existing and planned, is expected to contribute sediment, debris, excess nutrients, and other pollutants to the canal system and cause intermittent pollutant loading in the receiving waters. The use of septic tanks along the perimeter of the canal is expected to introduce harmful leachates into the receiving waters. As a result of these

   several factors, degradation of local water quality is expected."

   
   

   Specific state water quality standards which would be affected were cited as including, inter alia, turbidity, dissolved oxygen concentrations and fecal coliform averages. Additionally, the Division found that the project would result in the following matters adverse to the public interest: the creation of stagnant areas of water, reduction in the capability of habitat to support a well-balanced fish and wildlife population, impairment of the management of fish and wildlife resources, and increased eutrophication in nearby bodies of water.

   
   

7. On the basis of this intent to deny, petitioner timely requested an administrative hearing on the matter, and the undersigned Hearing Officer was designated to conduct the hearing.

   
   

8. In the latter part of September, 1976, respondent's field inspectors took water samples at three stations in petitioner's canal in order to test for oxygen and coliform content. Grab samples of the bottoms in the canal revealed marl with no life found. The samples were taken in the middle of the day after a rainstorm, when oxygen would be at a higher level. The inspectors found one violation of state water quality standards for dissolved oxygen content at the station nearest the culvert. At this station, the dissolved oxygen reading was

   0.4 parts per million, in violation of the state standard of 4.0 ppm. Counts of fecal coliform, an indicator of warm blooded sewage contamination, ran ten to twenty times higher than in the Caloosahatchee River. The addition of more septic tanks in the future would result in even higher levels of coloform.

   These field inspectors concluded that petitioner's canal should not be opened because the quality of water in the canal was lower than state standards, had higher levels of fecal coloform and would degrade the waters of the River, especially if future development were to occur.

   
   

9. Respondent's regional biologist took samples at three stations on petitioner's property in February and November of 1976. In February, the biotic index indicated that the first station was moderately stressed and the second and third stations were severely stressed. In November, testing indicated that the first station remained about the same and the second station had improved somewhat, but the third station results showed a severe amount of stress. The chemical analysis performed in November, 1976, showed no violation of state standards but was indicative of stress and supersaturation. While the dissolved oxygen count at the first station was similar to that of the River, the third station tests results illustrated that the canal was highly degraded in relation to the River. This witness recommended that the permit be denied based upon the degradation of water quality.

   
   

10. Alternatives to petitioner's proposal include the construction of either a boat lift or a double lock system which would allow a minimum amount of exchange of water between petitioner's canal and the Caloosahatchee River.

    
    

    CONCLUSIONS OF LAW

    
    

11. An applicant for a permit to construct a project such as that proposed by petitioner has the affirmative duty to provide respondent with reasonable assurance based on plans, test results and other information that the project will not discharge, emit or cause pollution in contravention of respondent's standards, rules or regulations. F.A.C. Ch. 17-4.07; F.S. Chs. 253 and 403. In this instance, petitioner has failed to meet his burden of proof.

12. While the canal as it presently exists may satisfy specific state water quality standards, petitioner failed to supply assurance that the waters of the canal will not become a source of pollution when petitioner's development expands. Violations of water quality standards have been detected in the past with regard to dissolved oxygen content. Fecal coloform tests taken by respondent's inspectors showed counts from the canal waters ten to twenty times higher than those of the Caloosahatchee River, the receiving body of water. All those who conducted and reviewed the samplings and testing of petitioner's canal were of the opinion that the future development of petitioner's project would degrade the water quality of the River were an exchange of water to be permitted. While the flushing effects from the opening and closing of the locks may have a minimal beneficial effect upon the quality of the water in the canal, it would have a negative effect upon the quality of water in the River because of the entrance of fecal coloform. While the River water quality is presently moderately stressed, it was shown to be superior to that of the project canal.

    
    

13. The Legislature has declared it to be the public policy of this state to conserve the waters thereof and to protect, maintain and improve their quality for public water supplies, for the propagation of wildlife, fish and other aquatic life and for other beneficial uses. F.S. 403.021(2). Petitioner has failed in his burden of making an affirmative showing that the project for which the permit is sought will be in the public interest and will not cause water pollution.

RECOMMENDATION

Based upon the findings of fact and conclusions of law recited above, it is recommended that petitioner's application for a permit to connect his canal to the Caloosahatchee River be DENIED.

Respectfully submitted and entered this 22nd day of December, 1976, in Tallahassee, Florida.

DIANE D. TREMOR

Hearing Officer

Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 22nd day of December, 1976.

ENDNOTES

1/ Due to the hearing handicap suffered by petitioner Bowden, Mrs. Adams, though not an attorney, was permitted to represent petitioner in this proceeding.

COPIES FURNISHED:

Richard B. Bowden Box 155

Moore Haven, Florida 33471

Mrs. Russell H. Adams South Riverside Drive Moore Haven, Florida 33471

Ms. Carole Haughey Department of Environmental

Regulation

2562 Executive Center Circle, E. Montgomery Building

Tallahassee, Florida 32301

Docket for Case No: 76-001655

Orders for Case No: 76-001655