W. PARDEE, JR., )
vs. ) CASE NO. 90-5734
) OGC No. 90-0911
Respondent. )
Notice was provided and on January 11, 1991, in Ocala, Florida, a formal hearing was held in this case. Authority for the conduct of the hearing is set forth in Section 120.57(1), Florida Statutes. Charles C. Adams was the Hearing Officer.
For Petitioner: C. W. Pardee, Jr.
For Respondent: Douglas H. MacLaughlin, Esquire
The issues concern the request by Petitioner for a permit(s) to dredge in a man-made canal and to construct two boat houses and six boat slips.
This hearing was occasioned by Respondent's denial of a permit(s) for activities described in the statement of issues. It is reported before the Respondent as OGC File No. 90-0911.
Petitioner testified at hearing. He also offered three exhibits, the last exhibit was constituted of a series of ten photographs. These exhibits were admitted as evidence. Respondent presented the testimony of James Higman and Barbara Bess, employees of that agency. Those witnesses were received as experts concerning environmental impacts of dredge and fill projects.
Respondent's seven exhibits, to include four photographs, were admitted as evidence. Respondent had prepared a prehearing statement to better define the issues. That prehearing statement was adopted by both parties at the commencement of the hearing and is submitted with the recommended order.
No transcript was prepared.
Both parties were granted leave to submit proposed recommended orders.
Respondent availed itself of that opportunity. Petitioner did not. The proposed fact-finding set forth in the recommended order by Respondent is addressed in an appendix to the recommended order.
Petitioner owns property in Marion County, Florida, from which he has legal access to a man-made canal that intersects the Oklawaha River. This river is an Outstanding Florida Water body. The canal and river are in Marion County, Florida.
In November 3, 1989, Respondent received a permit application from Petitioner. This application sought approval to dredge in the man-made canal which is approximately 800 feet long. That canal is owned by the Canal Authority of Florida. The dredging activity would include removal of material at the mouth of the canal as it intersects the Oklawaha River. The applicant intends to expand by dredging the length in the landward extent of the canal from 60 feet to 120 feet and the width from 50 feet to 170 feet.
In the landward extent of the dead-end canal, what is described as the boat basin, the applicant seeks approval for the construction of six boat slips and two boat houses. The relative design of the these activities and the placement of the spoil materials removed in the dredging are shown in the application to include responses to the omissions request. That application is found as the Respondent's Composite Exhibits No. 1.
At present the applicant has a 30 foot pontoon boat in the dead-end canal. He has a 17 foot bass boat and his neighbor has a 24 foot pontoon boat that use the canal. With the advent of as many as six boats available for the six slips contemplated by this application, the boats would vary in length from
16 feet to 30 feet.
In carrying out the dredging activities Petitioner states that he would use anchored turbidity curtains at the intersection of the canal and the Oklawaha River while dredging activities transpired.
The exact location of the proposed project is the south shore of the Oklawaha River in Marion County, Florida, in Section 35, Township 14 South, Range 23 East.
On June 1, 1990, Respondent noticed its intent to deny the permit. Following that denial Petitioner timely requested a formal hearing to consider his entitlement to the permit(s).
The history of the dead-end canal in question is not clear from the record. Its present condition does suggest that it has existed for a considerable number of years. Its appearance does not reflect that routine maintenance has been performed to preserve its original configuration to include maintaining its original depths throughout its course.
At the location where the canal intersects the Oklawaha River, the river runs in an easterly direction for a short stretch. Its flow regime at that point is quite swift. This intersection is in a bend of the river. The high energy flow at that juncture has created an undercut at the mouth of the canal and for some distance on either side.
The landward extent of the canal or area of the proposed boat basin is an area which was dredged from uplands. The canal extends in an northerly direction to the river through a wetlands swamp.
Spoil material from the original dredging had been placed on the east and west side of the canal. There was sufficient deposition on the west side to allow vehicular traffic. That bank of the canal provides physical access to the river.
In the Petitioner's experience, at around the time of the application process the water levels in the river and canal were as low as they had been during his three years of observation. At other times during that three year period the water levels had been approximately two feet higher than the low levels described. It is, however, unclear from the record what the normal high and low ranges of water levels in the river would be at this location.
Petitioner has observed that the water levels in the canal during the time in question is three feet in most of the canal except at the mouth as it intersects the river where the water level is shallower.
As seen in the photographs a great deal of vegetation is present in the water in the canal causing it to be in a marsh like condition. Emergent vegetation exists in certain portions of the canal which indicates a generally permanent shallow water condition.
The low water level in the mouth of the canal which has been described is only a few inches deep.
The bottom of the canal where it enters the river is more substantial in compaction as compared to the rest of the canal. It is not clear when this compaction occurred, in particular whether it occurred following the original construction of the canal.
Navigation is a problem for most boats in the condition of the canal as it was described at the time of hearing.
Petitioner describes that he and other fishermen have navigated in the canal when the water levels were high enough to allow that navigation.
The canal in its present condition serves as a habitat for wildlife. The wildlife includes blue winged teal, little blue heron, large mouth bass, bream and alligators.
In order to mitigate the effects of this project Petitioner has offered to place a recycling water fall in or near the proposed boat basin to allow oxygen to be placed in that basin. This is described in the application documents. Petitioner proposes to landscape the slopes of the basin with boulders and natural vegetation. He proposes to place "no wake" signs along the canal.
Notwithstanding the intent to use a turdibity curtain to protect against violations of turdibity standards in the waters in the canal and the adjacent Oklawaha River while dredging, problems of violation of Respondent's turbidity standards are expected to occur. This occurrence is probable given the relatively fast current in the river which precludes the efficient use of turbidity screens or curtains.
Dead-end canals such as that envisioned in this project have water quality problems. Enlargement of the dead-end canal does not assist in addressing the problems, even taking into account the intention by Petitioner to recycle water in the proposed boat basin. The water quality standards that are likely to be violated concern dissolved oxygen and BOD (biological oxygen demand). The assurances Petitioner has given about these standards in terms of protections against violations are not reasonable assurances.
The addition of six boat slips and the potential for greater use of the canal by boats other than those that presently exist creates an opportunity for other water quality violations. Those possibilities pertain to turbidity problems through the stirring of bottom sediments and a violation of standards for turbidity and nutrients through that process. Oils and greases are associated with the placement of boats in the dead-end canal and a violation of Respondent's water quality standards for oils and greases is possible.
During high water events and other flushing events when water from the canal enters the river, the poor quality of that water from the canal will reduce the water quality in the receiving body of water, the Oklawaha River, potentially causing water quality violations in the river.
More specifically related to the artificial water fall proposed by Petitioner, such a device is not generally found to be an acceptable solution in addressing any potential water quality problems created by the expansion of the dead-end canal system. In any event, that system of aeration only would address the dissolved oxygen water quality parameter and not other regulatory parameters.
The dredging of the canal has adverse affects on the fish and wildlife presently using the waters in the canal through the adverse affect on their habitat.
When the water quality is degraded as described it adversely affects public health, safety and welfare for those who use these waters.
Petitioner has observed logs jamming in the curve of the river and the accumulation of sand around that area further closing the mouth of the canal.
In order to keep the logs free from the canal entrance they have to be moved on a weekly or monthly basis.
Petitioner would attempt to save as many trees as possible when dredging in the mouth of the canal. Petitioner intends to sod slopes where dredging occurs and to place berms to keep water from running off into the canal and to prohibit erosion in the area of the boat basin.
Petitioner has in mind making it convenient for boats to turn around in the landward end of the dead-end canal and hiding those boats from the sight of persons on the river by keeping them in that area. However, Petitioner acknowledges that when boats negotiate inside the landward extent of the dead- end canal they churn up the bottom sediments and cause problems with water quality.
More specifically, Petitioner's right of access to the mouth of the canal is an easement across the property of the Canal Authority of Florida. Petitioner owns the area of the boat basin which is at the far end of the canal. Activities by Petitioner in that portion of the canal about which he does not have ownership rights which violate Respondent's environmental regulations would be adverse to the interest of the Canal Authority of Florida.
Petitioner intends to improve the road access along the bank of the canal as it offers access to the river.
Two hundred fifty to three hundred feet of the canal length moving away from the river is through a swamp which is marshy with weeded vegetation on its slopes. The rest of the length of the canal is through an uplands. As you move up the slopes in the canal it goes from submerged to transitional to upland species of plants. It is a shallow water system where plants can live inundated or exposed. These are types of plants seen along edges of rivers or lakes where water flows slow.
At the mouth of the canal, the compacted substrate has the appearance of what you would find on the edge of a deep creek or river channel. This material is compacted clay or rock with a sand overlay. The area is stabilized.
The long term impact of this project is the elimination of vegetation within a marshy system thereby removing habitat for aquatic and semi-aquatic invertebrates and vertebrates and their breeding and feeding areas.
In the dead-end canal systems the dissolved oxygen problems are presented by a slow moving regime of water and the suspension of nutrients and materials from the banks of the canal.
The bottom materials that are stirred up by boats are transported to the river.
Ordinarily canals are too deep to support the form of emergent vegetation found in some portions of the canal.
The deeper the canal the more difficult the water problems, and the flushing times take longer. This is especially true with long canals such as the one at issue. This contributes to problems with violation of standards related to DO and BOD.
While the canal itself is not an Outstanding Florida Water, the Oklawaha River's ambient water quality is at risk with the dredging activities contemplated by this project.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the subject matter and the parties to this action in accordance with Section 120.57(1), Florida Statutes.
Respondent has jurisdiction pursuant to Sections 403.087, 403.913 and 403.918, Florida Statutes, to require permitting before the Petitioner dredges in the canal, to clear the mouth, to expand the boat basin and to construct the boat slips and boat houses. See also Rule 17-312.030, Florida Administrative Code. This permit request is as distinguished from the idea of exemption from permitting for maintenance purposes envisioned by Section 403.813(2)(f), Florida Statutes, and Rule 17-312.050(1)(e), Florida Administrative Code.
Petitioner must give reasonable assurances that his activities do not violate water quality standards in the canal as generally described in Rule 17- 302.510, Florida Administrative Code. He has not provided reasonable assurances in the subparts to that rule which relate to dissolved oxygen at 17- 302.510(3)(g); biochemical oxygen demand at 17-302.510(3)(b); oils and greases at 17-302.510(3)(k) and turdibity at 17-302.510(3)(r), Florida Administrative Code. The problems related to these parameters within the canal itself can be expected to occur in the receiving waters of the Oklawaha River during times of high water or on other occasions of flushing of water from the canal into the river.
The Oklawaha River is an Outstanding Florida Water and to receive a permit Petitioner must comply with the requirements of Rule 17-4.242(2)(a), Florida Administrative Code. Necessary reasonable assurances have not been given that the ambient water quality in the Oklawaha River will not be degraded by this project.
Petitioner has failed to give reasonable assurances that the project is not contrary to the public interest as defined in Section 403.918(2), Florida Statutes. In this balancing test, the proof shows that the project would adversely affect fish and wildlife and their habitat. Further it has been shown that the project is contrary to public health, safety and welfare and to property of others.
