STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

GENERAL DEVELOPMENT CORPORATION, )

)

Petitioner, )

)

vs. ) CASE NO. 81-239

) 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, on June 8, 9, 10 and 29, 1981, in Tallahassee, Florida. The issue for determination at the hearing was whether the petitioner's request to have a permit condition removed from its dredge and fill permit should be granted.

APPEARANCES

For Petitioner: Valerie Fravel

Corporate Counsel

1111 South Bayshore Drive Miami, Florida 33131

For Respondent: Alfred J. Malefatto

Assistant General Counsel 2600 Blair Stone Road Tallahassee, Florida 32301

INTRODUCTION

In this proceeding, petitioner General Development Corporation seeks the removal of a special condition from a previously issued dredge and fill permit, which permit allows petitioner to connect the Ocean Breeze and the Sagamore Waterways to the dead end oxbow of the North Fork of the St. Lucie River in St. Lucie County. The special condition of which petitioner seeks removal is that petitioner may not remove the earthen plug which would provide direct navigable access from the Ocean Breeze Waterway to the North Fork of the St. Lucie River until the North Port St. Lucie Sewage Treatment Plant, owned by General Development Utilities, Inc., has secured a permanent operational permit from the Department of Environmental Regulation.

In support of its position that it is entitled to the removal of the condition, petitioner offered the testimony of Arthur Harper, Jr., an executive of the petitioner; Beverly Barkitt, an environmental specialist with the Department of Environmental Regulation; Dr. Thomas H. Fraser, accepted as an expert witness in the fields of marine biology and water quality Donald H. Ross, accepted as an expert witness in the areas of ecology and water quality; Arnold

1. Hartley, accepted as an expert witness in the fields of chemistry and water quality; R. S. Murali, accepted as an expert witness in the fields of hydrology and hydraulics; J. Thabaraj, accepted as an expert witness in the fields of environmental engineering and water quality; and Ralph Montgomery, accepted as an expert witness in the fields of water quality and phytoplankton. Petitioner's Exhibits 1-5, 7-10 and 12-15 were received into evidence.

   
   

   The respondent Department of Environmental Regulation (DER) presented the testimony of Ross McWilliams and Beverly Barkitt with DER; Craig Dye, accepted as an expert witness in the fields of marine science, water quality analysis, hydraulics and hydrographics. Respondent's Exhibits A through C were received into evidence.

   
   

   Both parties have submitted proposed findings of fact and proposed conclusions of law. To the extent that the parties' proposed findings of fact are not included in this recommended order, they are rejected as being either not supported by competent, substantial evidence, irrelevant or immaterial to the issues in dispute or as constituting conclusions of law as opposed to findings of fact.

   
   

   FINDINGS OF FACT

   
   

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

   
   

   1. Several years prior to1978, petitioner General Development Corporation (GDC) applied to the DER for a dredge and fill permit to remove a plug of land between the Ocean Breeze Waterway and the North Fork of the St. Lucie River. During the course of negotiations for this permit, it was discovered that the North Port St. Lucie Sewage Treatment Plant, owned and operated by General Development Utilities, Inc., a wholly-owned subsidiary of the petitioner, was operating without a permit from the DER and discharging effluent into a ditch which flowed into the Ocean Breeze Waterway. In March of 1978, a temporary operating permit was issued for the sewage treatment plant.

      
      

   2. In July of 1978, petitioner received from the DER Permit No. 253.123- 1031 to dredge an area approximately 800 feet in length, 90 feet in width and 6 feet in depth in order to connect the Ocean Breeze/Sagamore Waterways to the dead end oxbow of the North Fork of the St. Lucie River. The permit application was given special consideration pursuant to Rule 17-4.28(7), Florida Administrative Code. The purpose for obtaining the permit was to create direct navigable access to the North Fork of the St. Lucie River from thee Ocean Breeze Waterway. The Ocean Breeze Waterway was and is currently connected to the North Fork of the St. Lucie River by a narrow, shallow, meandering creek and lake system. However, there is not a large enough opening to allow the type of navigable access desired by the petitioner for the benefit of 118 lots plotted along the Ocean Breeze and Sagamore Waterways. Among the seven particular or special conditions attached to the dredge and fill permit issued to petitioner was that the earthen plug not be removed until such time as a permanent operational permit was issued for the sewage treatment plant owned and operated by General Development Utilities, Inc. More specifically, petitioner agreed to the following special conditions to the issuance of the dredge and fill permit:

      
      

      "(7) The applicant is aware that the GDC Utilities' sewage plant is providing an unknown quantity of discharge into Ocean Breeze Waterway and that this discharge may be

      a source of pollution to the receiving body of water unless affirmative steps are taken by the Utilities. The sewage treatment plant is currently operating under a Temporary Operating Permit (TP56-4601). In no case shall the plug at Cove Waterway be removed before an Operation Permit for the STP has been issued by the Department of Environmental Regulation."

      
      

      At time of issuance of the dredge and fill permit, DER personnel considered the quoted special condition number 7 to an integral part of the permit in terms of water quality assurances.

      
      

   3. General Development Utilities, Inc. has not been able to obtain a permanent operational permit from the DER for its sewage treatment plant which discharges into a ditch that flows into the Ocean Breeze Waterway. Therefore, particular condition number 7 has not been satisfied and petitioner has been unable to proceed with the dredging or removing of the plug under the permit. As a result of the delays in removal of the plug, petitioner has had to repurchase some 41 of the 118 plotted lots.

      
      

   4. The sewage treatment plant was and is still operating under a temporary permit. General Development Utilities, Inc. has requested a permanent operational permit for the sewage treatment plant and DER has issued a letter of intent to deny such a permit. As a result, General Development Utilities has petitioned DER for site specific alternative criteria pursuant to Rule 17-3.031, Florida Administrative Code. This matter is the subject of a separate proceeding currently being held in abeyance pending a determination of alternative criteria. General Development Utilities, Inc. v. Department of Environmental Regulation, DOAH Case No. 81-177.

      
      

   5. In September of 1980, petitioner sent a letter to DER requesting that special condition number seven be removed from its dredge and fill Permit No. 253.123-1031. It was intended that this request be considered as a minor modification to the dredge and fill permit. In response, DER's Chief of the Bureau of Permitting, Suzanne P. Walker, informed petitioner by letter dated October 15, 1980, that it was the staff's initial reaction, after a review of the original dredge and fill permit file, that the requirement that the sewage treatment plant obtain a permanent operational permit prior to dredging remain as a condition of the dredge and fill permit. Petitioner was informed that if it wished to pursue the matter further, the project must be reevaluated as a major modification to the dredge and fill permit. A major modification to a permit requires a new permit application and fee and is treated and processed as an initial application for a permit, with the applicant being required to provide reasonable assurances that the water quality standards will not be violated. Upon request for a minor modification, DER simply reviews the file and determines whether the request is obviously environmentally insignificant.

      
      

   6. After receipt of the letter from Mrs. Walker, petitioner supplied DER with additional water quality data. Based upon this additional data, discussions with DER staff who had been involved with the initial dredge and fill permit and the sewage treatment plant permit, and two days of sampling data collected by DER, DER determined that particular condition number seven was an integral part of the affirmative reasonable water quality assurance provided and should remain a condition of the permit. This determination was communicated to petitioner by letter dated January 7, 1981.

   7. The sewage treatment plant discharges treated effluent into a drainage ditch known as C-108. Effluent from the plant first goes into holding or retention ponds. Under its current flow, it takes about forty days for the effluent to be discharged from the plant to C-108 and the Ocean Breeze Waterway. C-108 flows into the Ocean Breeze Waterway, an artificial waterway which is presently connected to the North Fork of the St. Lucie River by a narrow, shallow meandering creek and lake system. The sewage treatment plant currently operates at 300,000 gallons per day but has an authorized capacity to operate at two million gallons per day. It currently contributes approximately two percent of the total daily flow to C-108. The Ocean Breeze Waterway and C-108, independent of the sewage treatment plant, drain approximately 4,000 square acres and produce about 35 percent of the water that will flow into the North Fork. The North Fork is tidal, with four one foot tides per day. The tidal action comprises almost 63 percent of the moving water. At a two million gallons per day discharge, the wastewater plant would be contributing about 12 percent of the water that would be going into the North Fork from the Ocean Breeze Waterway system. In comparison with two adjacent drainage systems, the Ocean Breeze system contributes only about three percent of the fresh water which flows into the North Fork.

      
      

   8. The dissolved oxygen levels of C-108 are chacteristically below the state standard of five milligrams per liter, primarily due to the seepage of ground water into the canal. Due to man-made alterations and to natural phenomena, the North Fork's dissolved oxygen levels also characteristically fall below state standards. The dissolved oxygen level of the Ocean Breeze Waterway is characteristically above state standards. Higher levels of dissolved oxygen coming from the sewage treatment plant improves the dissolved oxygen levels of the existing system. High levels of nitrogen, phosphate and chlorophyll have been found near the point of discharge. The quality of water in the North Fork is better than in the Ocean Breeze Waterway.

      
      

   9. It was the opinion of petitioner's experts that no change in dissolved oxygen levels would occur in the Ocean Breeze Waterway or the North Fork if the plug of land between these water bodies were removed. Petitioner's witnesses also opined that the Ocean Breeze/C-108 system was not a source of nutrient enrichment to the North Fork, and that the present creek system provided no water quality benefits in the form of nutrient uptake for the North Fork. It was estimated that, if the plug of land were removed pursuant to the permit, a pollutant placed at the upper end of the Ocean Breeze Waterway would be diluted by 98 percent in 26 hours in lieu of the present 39 hours due to increased flushing. These opinions were based upon analyses by petitioner's witnesses of various samplings and data regarding dissolved oxygen, nutrients and phytoplankton.

      
      

   10. The respondent's witnesses felt that the poor water quality in the Ocean Breeze Waterway was attributable in large part to the sewage treatment plant discharge and, if the plug of land were removed, the water quality problems would be moved to the North Fork and the St. Lucie River. It was felt that the present creek and lake system -- the narrow circuitous connection presently existing between the canal and the river -- reduces the nutrients which otherwise would flow into the river. These conclusions were based upon DER's own survey, a review of the dredge and fill permit file and a review of the additional data supplied by the petitioner General Development Corporation.

   11. No data regarding the water quality of the effluent from the sewage treatment plant was submitted by the petitioner at the time of DER's review of the original application for the dredge and fill permit.

       
       

       CONCLUSIONS OF LAW

       
       

   12. General Development Corporation was issued a dredge and fill permit, with certain conditions, to remove a plug of land between two water bodies. The issuance of this permit constituted final agency action from which no appeal or review was sought. Petitioner admits that it voluntarily agreed to the terms and conditions of the permit, as issued. The evidence also illustrates that respondent DER considered special condition number seven regarding a permanent operational permit for the sewage treatment plant to be an integral portion of the reasonable-assurance provided by petitioner that the dredging project would not result in violations of water quality criteria, standards and requirements. The issue in this case may thus be stated as whether or not the removal of this condition would leave DER without the reasonable assurances with regard to water quality which are required prior to the issuance of a permit to dredge and/or fill in the waters of the state.

       
       

   13. In order to obtain a permit to dredge and fill in the waters of this state, an applicant must affirmatively provide to the Department of Environmental Regulation reasonable assurance that the short-term and long-term effects of the activity will not result in violations of water quality standards. Florida Administrative Code, Rule 17-4.07(1) and 17-4.28(3). Obviously, the operation of a sewage treatment plant which discharged into the canal system which petitioner proposed to connect to the St. Lucie River was cause for concern. In order to assure that the sewage treatment plant would not be a source of pollution to the River, a condition was imposed which required that the plant obtain a permanent operational permit prior to the dredging which would result in a connection of the canal with the River. To obtain a modification of this permit in the form of a deletion of this condition, petitioner must affirmatively demonstrate either that the operation of the sewage treatment plant is obviously insignificant to the water quality of the surrounding waters or that conditions have changed so that the sewage treatment plant's operation is no longer related to the issue of whether or not the plug of land should be removed.

       
       

   14. It cannot be said that the discharge of effluent from a sewage treatment plant into a ditch which flows directly into the water bodies which are to be connected is "obviously insignificant" to the quality of water in those water bodies. While petitioner has presented evidence to illustrate that the sewage treatment plant discharge may actually improve the dissolved oxygen levels in the waters of the Ocean Breeze Waterway, this is only one of the criterion which must be evaluated. The data regarding nutrient levels illustrates that the sewage treatment plant is contributing to the water quality problems in the Ocean Breeze Waterway. The fact that either or both of the bodies of water to be connected by the permitted dredging may already be degraded or may not presently meet the state water quality standards does not, in itself, prove that a sewage treatment plant's discharge into those waters would be insignificant. There are means other than deletion of the permit condition to meet such a situation. Petitioner is fully aware of this, for in another proceeding, General Development Utilities, Inc. is currently seeking to utilize the site specific alternative criteria approach in obtaining an operational permit for the sewage treatment plant. If petitioner's position in this proceeding is correct, its data and facts may be utilized to obtain the operational permit for the sewage treatment plant, special condition number

       seven would be fulfilled and petitioner could then carry out its dredging activities pursuant to its dredge and fill permit.

       
       

   15. The Department of Environmental Regulation has previously issued an intent to deny the application of General Development Utilities, Inc. for a permanent operational permit. To allow the petitioner in this case to successfully remove the permit condition with respect to the operation of the sewage treatment plant would frustrate the purpose of the sewage treatment plant permitting laws, and would remove an integral part of the reasonable assurance previously accepted by DER with respect to the dredging activity. This back- door approach, if successful, would also encourage permit applicants to voluntarily agree to accept stringent conditions with which they have no intention to comply in order to readily obtain a permit and then, in a permit modification proceeding, attempt to litigate issues which should properly be litigated in another proceeding. In summary, if the operation of the sewage treatment plant is obviously not degrading the surrounding waters, there is a simple method of accomplishing the activity for which a permit was obtained in this instance. That method is to obtain a permanent operational permit for the sewage treatment plant.

       
       

   16. It not having been sufficiently demonstrated that the operation of the sewage treatment plant is obviously insignificant to the quality of the involved water bodies, petitioner must demonstrate some change in conditions before it is entitled to a modification of the existing permit. It is concluded that no such change in conditions has been illustrated by petitioner in this proceeding. While additional and more recent sampling data and analyses regarding the quality of the receiving bodies of water have been provided by the petitioner, it has not been demonstrated that any physical condition or characteristic has changed or altered since the time that special condition number seven was attached to the permit. It should be noted that the Department of Environmental Regulation may only require permittees to conform to new or additional conditions for "good cause." "Good cause" is defined in terms of events or conditions which have changed since the time of issuance of the original permit, such as technological advancements, changes in the environment or surrounding conditions, new or changed classifications of water bodies or adoption of new or revision of existing rules. Florida Administrative Code, Rule 17-4.08. An applicant for a modification of permit terms should be required to show a similar change in circumstances, and such a showing has not been accomplished in this proceeding. There has been no attempt to illustrate at the results obtained from recent sampling and analyses are in any way different than what was in existence in July of 1978 when the permit, with its conditions, was issued. The fact that such data regarding the effluent from the sewage treatment plant was in existence at the time of the issuance of the dredge and fill permit may have provided grounds for timely challenging the imposition of special condition number seven. It does not, however, provide grounds for removal of a condition voluntarily accepted by the petitioner and relied upon by DER as an integral part of the reasonable assurance necessary for obtaining a permit. While the new information, if considered in a light most favorable to the petitioner, may justify the granting of a permanent operational permit for the North Port St. Lucie Sewage Treatment Plant, that is not being requested in this proceeding. The facts presented at this hearing do not illustrate that the operation of the plant is obviously insignificant to the quality of the receiving bodies of water or that conditions have changed to such an extent as to justify removal of the condition that an operational permit for the sewage treatment plant be obtained prior to dredging. Whether the exchange of waters between the Ocean Breeze Waterway and the North Fork after the removal of the existing plug of land will be 2 percent or 100 percent, it cannot be said that

the operation of the sewage treatment plant is not related to the quality of water of these water bodies. The challenged condition was reasonably imposed to assure nonviolation of water quality standards and criteria, and its continued existence has not been shown to be arbitrary or capricious.

RECOMMENDATION

Based upon the findings of fact and conclusions of law recited herein, it is RECOMMENDED that the request of General Development Corporation to modify Permit Number 253.123-1031 by removing particular condition number seven be DENIED.

Respectfully submitted and entered this 14th day of October, 1981, in Tallahassee, Florida.

DIANE D. TREMOR, Hearing Officer Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32301

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 14th day of October, 1981.

COPIES FURNISHED:

Valerie Fravel Corporate Counsel

General Development Corp. 1111 South Bayshore Drive Miami Florida 33131

Alfred J. Malefatto Assistant General Counsel Department of Environmental

Regulation

2600 Blair Stone Road Tallahassee, Florida 32301

Honorable Victoria Tschinkel Secretary, Department of

Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32301

Docket for Case No: 81-000239

Orders for Case No: 81-000239