STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ROBERT L. DREHER, )

)

Applicant, )

)

and ) CASE NO. 76-257

) APPLICATION NO. 75-340 SOUTHWEST FLORIDA WATER )

MANAGEMENT DISTRICT, )

)

Permittee. )

)

RECOMMENDED ORDER

A hearing was held pursuant to notice on February 10, 1976, in the District Headquarters Conference Room of the Southwest Florida Water Management District in Brooksville, Florida, before Stephen F. Dean, assigned Hearing Officer of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Michael J. Ryan in behalf of owner Dreher Post Office Box 3067

Holiday, Florida 33589

For Respondent: Jay T. Ahern, Esquire

Staff Attorney Southwest Florida Water

Management District Post Office Box 457

Brooksville, Florida 33512 SUMMARY OF TESTIMONY

Oliver DeWitt, an engineer employed by the Southwest Florida Water Management District, was called and testified to the following facts regarding this application.

DeWitt identified Exhibit 1 as the composite application and Exhibit 2 as an aerial map of the property. DeWitt testified that the area in which the subject property and a one acre pond were situated was an area of water shortage as declared by the Southwest Florida Water Management District and that the dam sought to be removed adjoined the Anclote River which is a work of the District. The chloride content of the lake was measured at 2,560 parts per million and 6,600 parts per million in the Anclote River. On two occasions when the plug had been washed out, the water in the lake exhibited higher chloride content.

DeWitt then identified U.S.G.S. Map Series 47, which was received as Exhibit 4. DeWitt pointed out that Figure 6 and the commentary on Exhibit 4 reveals that salt water intrudes into the substrata from bodies of salt water such a rivers, canals, and similar bodies of tide; salt water. Attention was

called to the site of the subject property as was marked on both Figures 9 and 8 of Exhibit 4, and the conditions depicted.

Based on this salt water intrusion, the staff recommendation was to deny the application.

Ryan and the owner Dreher testified to the following facts regarding the application:

The owner developer had prepared the pond to create waterfront home sites which upon removal of the earthern dam would have access to the Anclote river. Ryan identified Exhibit 3 as a map of the area. The owner developer testified that he owned the water system servicing the affected area and did not want to do any damage to the fresh water wells in the area, but indicated that there was salt water intrusion within the area fairly close to the surface. He pointed out that because of storm drains leading into the pond, that nutrients would be drained into the one acre, eight foot deep pond causing a water pollution problem which would be solved by the tidal action of the river. He further indicated that the pond was always intended to be opened up on the river and that the property was accessed for tax purposes as if it were open to the river.

Ryan further testified that because of the location of the pond at a bend in the river and the pond's small size that the pond would not contribute to any appreciable degree to the salt water intrusion already induced by the river.

DeWitt indicated that the penetration of salt bearing waters would be limited to the small area adjoining the river and pond, to the extent that it would not escape to adjoining property boundaries.

Ryan also pointed out a natural inlet of approximately the same size east of the subject pond, indicated in pencil of Exhibit 3, which Ryan argued was located so close to the river and the subject property that salt water seepage was already a fact and to which the subject pond could not substantially increase.

Dreher indicated that the base of the pond was a heavy clay which was impervious or nearly so to water, and would further cut down on any seepage. He also indicated his intent to bulkhead the property which would also limit seepage.

Dreher also pointed out that construction in Pasco County which has resulted in fresh water drainage into the Anclote River would have changed the data contained in U.S.G.S. Map Series 47, by creating a higher rate of flow of surface water into the Anclote River.

FINDINGS OF FACT AND CONCLUSIONS OF LAW

1. The earthern dam sought to be removed is located adjacent to the Anclote River, a work of the District, and removal thereof will allow the discharge of waters into said river. Pursuant to Rule 16J-1.041, F.A.C., a permit is required for the removal of the earthen dam.

   
   

2. The staff has opposed the granting of the permit on two grounds:

   
   

   1. The salt water flowing into the one acre pond would seep into the substrata,

      causing salt water intrusion in an area of declared water shortage;

   2. The use is not reasonable, beneficial, or in the public interest.

      
      

3. There would undoubtedly be some salt water intrusion or more accurately seepage from the pond if it were connected to the Anclote River. The question is how detrimental would this be relative to the reasonableness of the request and its beneficial use.

   
   

4. The pond in question has an area of one (1) acre. It is located in a sharp bend in the river and closely adjoins a similar naturally occurring inlet.

   U.S.G.S. Map Series 47, Figure 7 would indicate that the salt water intrusion in the area of the Anclote River approaches 50 feet below mean sea level, but is not continuous to the surface. Although Figure 6 was pointed out by the staff as depicting the hazards arising from salt water canals or ponds, it would indicate salt water from the surface down. However, Figure 6 would not appear to agree with the data depicted in Figure 7 which is specifically applicable to the area in question, the Anclote River.

   
   

5. Further, Figure 9 of the same map shows that the Anclote River is during high flow periods a body of fresh water at the site in question at both high and low tides. Only during low flow periods is the Anclote River a body of salt water at this site. The staff did not quality the nature of flow or tide when its measurement of 6,600 parts per million was taken, however, it would appear to have been a low flow period from the US.G.S. data. The staff's representative expressed his opinion that such seepage would not be widespread, being contained on the surrounding property which is owned by the applicant.

   
   

6. The staff has not presented any specific detriment which would result except its reference to Figure 6 and the commentary relative to it contained in Exhibit 4, U.S.G.S. Map Series 47. This generalization, however, is not applicable to the specific situation as represented in Figures 7, 8, and 9.

   
   

7. The desire for a property owner to have access to a river is certainly reasonable, the use of such property is certainly beneficial and the economic benefit to a developer to offer such home sites is obvious. This benefit accrues to the public generally, as it has in this case, by the higher real property taxes accessed on such property. The availability of riverfront lots, the increased tax value, and the economic benefits arising fromsuch developments are in the public interest, not to mention the elimination of a potential body of polluted water.

   
   

8. The detriment is added salt water intrusion from a one acre pond, which may occur according to the general hypothesis illustrated by Figure 6, which does not agree with the data specifically applicable to the area in question as illustrated in Exhibits 7, 8, and 9.

   
   

9. The Hearing Officer finds that removal of the earthen dam is a reasonable and beneficial use which when weighed against the possibility of the adverse effect and the degree of that effect if it occurred is not inconsistent with the public interest.

RECOMMENDATION

The Hearing Officer having considered the law and the facts recommends the permit be granted.

DONE and ORDERED this 23rd day of February, 1976.

STEPHEN F. DEAN

Hearing Officer

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

(904) 488-9675

COPIES FURNISHED:

Jay T. Ahern, Esquire Counsel for SWFWMD

Michael J. Ryan

Post Office Box 3067 Holiday, Florida 33589

Robert L. Dreher

1721 Candlewood Drive

Tarpon Springs, Florida 33589

Docket for Case No: 76-000257

Orders for Case No: 76-000257