STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ST. JOHNS TRADING COMPANY, )

)

Petitioner, )

)

vs. ) CASE NO. 77-1204

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

)

Respondent. )

)

RECOMMENDED ORDER

A hearing was held in the above-captioned matter, after due notice, at Palatka, Florida, on October 17, 1977, before the undersigned Hearing Officer.

APPEARANCES

For Petitioner: Robert E. Solomon, Esquire

3205 Blair Drive

Palatka, Florida 32077

For Respondent: Sheri W. Smallwood, Esquire

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

Tallahassee, Florida 32301 ISSUE PRESENTED

Whether Petitioner should be granted a permit for construction of culverts and a proposed causeway extension across Acosta Creek in Putnam County, Florida.

FINDINGS OF FACT

1. Petitioner St. Johns Trading Company is a corporation solely owned by Donald W. Tredinick. It owns a tract of land in Putnam County, Florida, that is devoted primarily to the growth and harvesting of pine trees. The tract is predominantly a pine and hardwood swamp area with typical vegetation indigenous to that type of environment. The headwaters of Acosta Creek originate in a swampy area in the easterly portion of the tract and flow in a southwesterly direction several miles where it empties into the St. John's River. Acosta Creek is wholly contained within the borders of petitioner's land. It's depth varies from one to one and one-half feet and it is approximately eight to ten feet in width at the site of the proposed project. Several cleared areas exist upstream from that point that were planted in watermelon several years ago. A post-hearing sworn statement received from Tredinick states that an upland field of watermelons was fertilized in June, 1977, at a point about two miles southeast of the proposed dam site which drains into Acosta Creek. It is

   petitioner's practice to plant and fertilize melons the first year after land is cleared and then plant pine trees which are not fertilized.

   
   

2. The stream is typical of those found in that section of north Florida with a sandy bed and some algae growth of moderate density. It sustains a small fish population of no great environmental consequence. There are few animals in the area with the exception of a number of burros which are kept as pets. At the proposed project site, some 6,000 feet upstream from the St. John's River, there exists a dirt trail on either side of the stream which presently is crossed by a narrow causeway over an existing wood culvert. (Testimony of Buck, Baxter, Ray, Barber, Petitioner's Exhibits 1,4,5; Affidavit of Tredinick)

   
   

3. In November 1976, petitioner submitted an application for a permit to respondent to replace the wooden culvert under the causeway with two five-inch corrugated metal pipes in the streambed. This application was granted. Thereafter, however, petitioner determined that he wished to enlarge the causeway in order to permit passage for trucks carrying pulpwood across Acosta Creek. The existing culvert was insufficient to sustain the weight of the trucks. It was also decided that by raising the culvert pipes three feet from the streambed, an impoundment would be created that would result in a lake covering about three or four acres of land. To this end, petitioner filed an application with respondent on February 10, 1977, requesting a permit to construct the two five-foot diameter corrugated metal pipe culverts and two two- foot diameter culverts at an elevation three feet above the existing flow line of the stream, and to extend the existing causeway to 192 feet on either side of the north five-foot pipe with a minimum cover of 1.5 feet over the pipes. It was anticipated that this would create a three-foot deep lake. It was further proposed in the application that 1904 cubic yards of fill material be removed from the stream bottom which would be taken from three areas on the project site. These "borrow" pits would be located on the northern end and southeastern portions of the project. At the hearing, it was determined that an error had been made in the amount of fill material necessary and that only 1,003 cubic yards would be required. Two silt screens constructed of burlap, canvas material, or wire mesh were proposed to be placed downstream from the project on a temporary basis during construction. (Testimony of Buck, Petitioner's Exhibit l)

   
   

4. A "driveway" permit was issued by the Putnam County Engineering Department on February 7, 1977, permitting the installation of the proposed culverts. However, this permit was only effective for a period of 45 days. (Petitioner's Exhibit 2)

   
   

5. Respondent's field inspector, Ed Barber, an Environmental Specialist II, from the St. John's River subdistrict office, inspected the site of the proposed project on May 26, 1977, and thereafter rendered a report on his appraisal of the permit application. He noted that Acosta Creek supported an algal growth of unusually high proportions and attributed this to the possibility of high nitrate and phosphate input from upland farming activities. Although Barber did not personally observe such activities, he testified at the hearing that Buck had informed him that there were watermelon areas under cultivation upstream. His main concern was that the holding pond that would be created by the impoundment could become a nutrient trap and undergo a plankton bloom the following spring, which could have deleterious effects on local flora and fauna. For this reason, he recommended that the permit be denied for biological reasons. Also in the report was his estimation that the project would interfere with fish and wildlife population, that turbidity would exceed standards, and dissolved oxygen would be depressed below the value of five parts

   per million for Class III waters, and that coliform counts would exceed existing criteria. There is no evidence that petitioner had submitted biological or water quality data with his application. Barber's supervisor, David Scott, reviewed the matter in April and also recommended denial of the permit because the proposed lake would act as a nutrient trap and eliminate shallow water hydrophytes which maintain water quality by assimilating and transforming nutrients. He was further of the opinion that the "borrow" site would create discontinuities in the lake that in turn would concentrate silt settlements and organic debris. Based on the above recommendations, the acting subdistrict manager, G. Doug Dutton, advised petitioner by letter of June 7, 1977, of intent to deny the application for the reason stated in Scott's recommendation. The letter further stated that degradation of local water quality was expected with regard to dissolved oxygen, BOD, deleterious materials, toxic substances and bacteriological aspects, specifically, fecal coliform. Petitioner requested a hearing in the matter on June 20, 1977, contending that the decision was arbitrary and capricious in that respondent had acted upon a presumption, unsupported by fact, that the proposed causeway extension would cause water quality degradation. (Testimony of Barber, Scott, Dutton, Respondent's Exhibits 1,2,4)

   
   

6. Petitioner then engaged a biologist to conduct water analyses at the site. Water samples were taken from Acosta Creek in July, August, and September, 1977. They revealed no abnormal concentrations except for nitrogen and phosphorus. Nitrogen was unusually high in the July sample, but this was attributed to the presence of burros in the area during the sampling. The September nitrogen sample tested at 0.4 mg/1. Phosphorus, however, both in the July and September samples, was unusually high. However, the source of the phosphorus input was not established. Fecal coliform was somewhat high in the September sample, but this was attributed to excessive rainfall during that period. Although the report indicated that further sampling would be made as to phosphorus concentration, no evidence was submitted in this respect. The biologist found that the proposed pond would be of value in that fish propogation would be encouraged and that no unusual biological problems could be anticipated because water turnover rates behind the impoundment would be approximately two per day during the dry season. Petitioner's hydrologist found that the flow through the impoundment would occur at least once a day. He further is of the opinion that the impounded water would be helpful as a barrier in case of forest fires and that it could possibly increase recharge of aquifers. Additionally, he believes that the presence of the pond would slow the flow of water in case of an unusually severe storm, thereby reducing the possibility of flood conditions. Respondent's hydrologist found no major hydrologic problems arising from the project, but recommended that the three potential borrow areas be combined into one of a circular shape or that a new upland borrow site be used to prevent the chance of flooding during severe weather conditions. (Testimony of Baxter, Ray, Simmons, Murali, Petitioner's Exhibits 3,4, Respondent's Exhibit 3)

   
   

7. Testimony of respondent's experts established that insufficient water quality data had been submitted to determine whether nutrient input to the impounded area would create excessive algal growth and consequent long-term possibility of eutrophication of the lake. Although conceding that the relocation of the proposed borrow pits would also aid in retaining surrounding grasses that filter nutrients, they nevertheless were of the opinion that impoundment was not a "good idea" and would eventually lead to degradation in water quality. However, petitioner was not advised of the insufficiency of information submitted with his application as to water quality data until he

   received the notice of intent to deny the permit. (Testimony of Barber, Scott, Dutton, Respondent's Exhibit 3)

   
   

8. Based on the foregoing, it is found that (a) the petitioner has provided respondent with insufficient information as to water quality to properly determine the long-range consequences of permitting construction and operation of the impoundment; and (b) the redesign or movement of the borrow sites will substantially reduce the possibility that water quality of Acosta Creek will be impaired by the proposed construction and operation of the impoundment.

   
   

   CONCLUSIONS OF LAW

   
   

9. Petitioner's application for a permit is made pursuant to Chapters 253 and 403, Florida Statutes. Section 403.087 prohibits the construction and operation of a stationary installation which will reasonably be expected to be a source of pollution without an appropriate and currently valid permit issued by the Department of Environmental Regulation, unless exempted by department rule. Subsection 403.087(4) provides that such permits shall be issued only when the department 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.

   
   

10. The proposed project falls within the requirements of Rule 17-4.28, Florida Administrative Code, which requires a permit for dredge and fill activities which are to be conducted in a body of water such as that in question here. Paragraph (3) of that rule requires the applicant to affirmatively provide "reasonable assurance to the Department of Environmental Regulation that the short-term and long-term effects of the activity will not result in violations of water quality criteria, standards, requirements and provisions of Chapter 17-3, F.A.C. Paragraph 11(a) of the rule provides that within fifteen days of receipt of an application to conduct a construction dredging and/or filling activity the department shall make a determination as to whether the application is complete or incomplete and so notify the applicant in writing. When it is incomplete or additional information is required, the applicant is also to be notified.

    
    

11. It is clear from the foregoing Findings of Fact that petitioner has not provided the respondent department with reasonable assurances that its proposed activity will not adversely affect water quality standards as specified in the letter of intent to deny the permit. However, the failure of the department to advise petitioner of the deficiencies in its application and failure to provide sufficient water quality data upon which to base a proper evaluation of the application contravened Rule 17-4.28(11)(a) as cited above. For this reason, it would not be fair to the applicant to deny his permit out of hand. At this juncture, it is believed that petitioner should be provided an opportunity to amend its application and provide specified information to the respondent prior to issuance of a final order in the matter. In this manner, the rights of both parties will be preserved and a fair determination can be made.

RECOMMENDATION

That petitioner be permitted a reasonable period of time to provide further information concerning the proposed project and that such information be taken into consideration by the respondent prior to issuance of a final order herein.

DONE and ORDERED this 18th day of November, 1977, in Tallahassee, Florida.

THOMAS C. OLDHAM

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

(904) 488-9675

COPIES FURNISHED:

Sheri Smallwood, Esquire Department of Environmental

Regulation

2562 Executive Center Circle, East Montgomery Building

Tallahassee, Florida 32301

Robert E. Solomon, Esquire 3205 Blair Drive

Palatka, Florida 32077

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

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

BEFORE THE STATE OF FLORIDA DEPARTMENT OF ENVIRONMENTAL REGULATION

ST. JOHNS TRADING COMPANY,

Petitioner,

vs. CASE NO. 77-1204

STATE OF FLORIDA, DEPARTMENT OF ENVIRONMENTAL REGULATION,

Respondent.

/

FINAL ORDER BY THE STATE OF FLORIDA DEPARTMENT

OF ENVIRONMENTAL REGULATION:

This case presents for decision, an issue of whether the Respondent erred in its denial, pursuant to Section 403.087, Florida Statutes, of a permit authorizing the Petitioner to dam Acosta Creek and create an artificial lake. After a full hearing, the duly appointed hearing officer in the above-styled

matter completed and submitted to the Department and all parties on November 18, 1977, a Recommended Order consisting of his findings of fact, conclusions of law, and recommendation. A copy of that Order is attached hereto and made a part hereof as Exhibit "A". In that hearing officer's Order, it was recommended that the Petitioner be permitted a reasonable period of time within which to present-additional information concerning the proposed project in an attempt to satisfy its burden of providing reasonable assurances as required by Chapter 17- 3, Florida Administrative Code. The Respondent has filed Exceptions to that Recommended Order, and upon consideration, it is concluded that those Exceptions are well-founded.

The Department first excepted to the hearing officer's admission and consideration of certain ex parte communications, designated Petitioner's Composite Exhibit No. 5, between the hearing officer and the Petitioner. Although the Recommended Order indicates that those communications affected the hearing officer's decision, the Respondent was provided no opportunity for rebuttal or for cross-examination, and thereby suffered substantial prejudice. Accordingly, it is finally concluded that the hearing officer erred in receiving and considering Petitioner's Exhibit No. 5.

The Department next has taken exception to the hearing officer's conclusion that the Petitioner was not advised of the insufficiency of water quality information submitted with his application until he received the Respondent's Notice of Intent to Deny. The record reveals that this exception is similarly well taken. Section 17-4.28(11)(a), Florida Administrative Code, provides:

"Within fifteen days of receipt of an application to conduct a construction dredging and/or filling activity . . . the Department shall make a determination as to whether the application is complete, or incomplete, and shall so notify the applicant in writing. When the application is incomplete, or additional information is required, the applicant shall be so notified".

The testimony from the Petitioner's own engineer was that he had received requests from the Department for additional information on February 15, 1977, (tape 1, side 1, minute 28-30), and on April 6, 1977, (tape 1, side 1, minute 11). The conclusion of the hearing officer regarding a failure of notice is thus contrary to the evidence of record and the facts of this case. Being, therefore, without competent and substantial support in the evidence, it is specifically rejected.

Finally, there has been asserted an exception to the hearing officer's recommendation that the Petitioner be permitted a reasonable period of time in which to provide further information concerning the proposed project, and that such information be taken into consideration by the Respondent prior to the issuance of a final order. The only issue which was presented to the Hearing examiner by the applicant's Petition was whether the Respondent properly issued its Notice of Intent to Deny. Section 17-1.25(5), Florida Administrative Code, provides that the review pursuant to such a Petition shall be limited to the information in the possession of the Department at the time of snaking the determination to issue the Notice of Intent to Deny. In the instant action, the hearing officer completely disregarded the limitations of his jurisdiction and authority by receiving and considering, over objection, information from the Petitioner which was different from, and in addition to, that submitted with his

application (tape 3, side 2, minute 10). To compel the receipt and consideration of yet more information, irrelevant to the issue at hand, and inadmissible under the Florida Administrative Code, would compound that error. There are available to the Petitioner various means of presenting for agency consideration information in addition to and different from that submitted with his application. Accordingly, the hearing officer's recommendation that the Petitioner be permitted a reasonable period of time in which to provide further information is rejected as contrary to law. Section 17-4.28(3), Florida Administrative Code, requires an application for a dredge and fill permit to affirmatively provide reasonable assurances to the Department that the short term and long term effects of the activity will not result in violations of the water quality criteria, standards, requirements and provisions of Chapter 17-3, Florida Administrative Code. The overwhelming weight of the evidence presented at the hearing conclusively showed that the Petitioner failed to provide the requisite reasonable assurances. Under such circumstances, denial of the permit was compelled and the hearing officer's contrary findings are erroneous.

WHEREFORE, it is ORDERED AND ADJUDGED that:

This Department has jurisdiction to enter this Final Order, pursuant to Chapter 17-1, Florida Administrative Code, because the Petitioner requested additional time and delayed in filing his response to the Exceptions for some 34 days. (Exhibit "B" attached).

1. The hearing officer erred in admitting and in considering Petitioner's Exhibit No. 5.

   
   

2. The hearing officer erred in finding that the Petitioner was not advised of the insufficiency of the water quality data submitted along with his application until he received the Notice of Intent to Deny the permit contrary to Section 17-4.28(11)(a), Florida Administrative Code.

   
   

3. The hearing officer erred in recommending that the Petitioner be permitted a reasonable period of time in which to provide further information concerning the proposed project and that such information be taken into consideration by the Respondent prior to issuance of a final order.

   
   

4. To the extent that any finding of fact contained in the Recommended Order "Exhibit A" conflicts with, or is contrary to the findings contained in this Order, it is expressly rejected.

   
   

5. To the extent that any conclusion of law contained in the Recommended Order "Exhibit A" conflicts with, or is contrary to the conclusions of law contained herein, it is expressly rejected.

   
   

6. In so far as the Findings of Fact and Conclusions of Law contained in the Recommended Order are not inconsistent herewith, they are specifically affirmed and adopted.

   
   

7. The recommendation contained on page 7 of the hearing officer's Recommended Order is expressly rejected. Should Petitioner desire to revise and resubmit his application, means to do so are available, and, in fact, the public records of this agency reveal this has been done.

   
   

8. The application for a permit submitted by the Petitioner to dredge and fill in the navigable waters of the State was properly denied by the State of

Florida Department of Environmental Regulation and the Respondent's denial is ratified and approved.

DONE AND ENTERED this 17th day of March, 1978, in Tallahassee, Florida.

JOSEPH W. LANDERS, JR.

Secretary

Department of Environmental Regulation

Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32301

Phone: 904-488-9730

Copies to all parties

Docket for Case No: 77-001204

Orders for Case No: 77-001204