STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ROBERT L. DREHER, )

)

Petitioner, )

)

vs. ) CASE NO. 76-697

) DEPARTMENT OF ENVIRONMENTAL ) REGULATION, )

)

Respondent. )

)

RECOMMENDED ORDER

This matter was called for hearing at 9:30 a.m., July 1, 1976, at the County Building, 530 Sunset, Room 129, New Port Richey, Florida.

APPEARANCES

For Respondent: R. L. Caleen, Esquire

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

Tallahassee, Florida 32301

For Petitioner: H. James Parker, Esquire

Post Office Box 279

North Port Richey, Florida 33568

1. This case involves a dispute between the Petitioner and the Department of Environmental Regulation concerning a subdivision Petitioner is developing along' the Anclote River in Pasco County, Florida. The center of this dispute relates to a one acre lake the Petitioner has excavated on his property which he seeks to connect to the Anclote River by removing an earthen plug which separates this lake from the Anclote River via an existing canal. The Petitioner applied to the Department of Environmental Regulation for a permit to remove the plug. The removal of this plug would provide navigable access to the river for homesites which are to be sold around this lake. The Department objects to the issuance of this permit on the grounds that the removal of this plug and the subsequent connecting of this lake to the Anclote River will degrade water quality and will not comply with applicable water quality standards. The subdivision in question is proposed to have 200 homesites, serviced by sewer lines and a central water supply. It will therefore not have septic tanks on the homes which will be built and all sewage will be removed from the area.

   
   

2. Under Chapter 403, FS and Chapter 17-3.05, 4.05 and 4.28, Florida Administrative Code. it is the applicant's burden to demonstrate that the proposed project will not violate present water quality standards and will be in the public interest. See Young v. Askew 293 So.2d 395.

3. The applicant's presentation consisted of testimony relating to a lagoon or bay as it was called by the applicant's witness, Michael Ryan, President of Ryan Construction and Engineering, which already exists and is connected to the Anclote River in the vicinity of the applicant's subdivision. The location of the one acre lake and the existing lagoon was clearly depicted in a photograph which was admitted as Petitioner's Exhibit No. 5. Mr. Ryan testified that he and some other individuals took a water sample from the existing lagoon and from the one acre lake in question which samples were tested by the Hanes Testing Laboratory, Inc. in Clearwater, Florida. The results of the analysis of the samples was admitted as Petitioner's Exhibit No. 4. The analysis of the sample taken in the lagoon and in the lake all were in acceptable water quality standards as presently exists. Clearly, the assumption was that if the water in the existing bay or lagoon was within the Present water quality standards then the proposed connection of this one acre lake with the Anclote River would similarly be within acceptable standards. Mr. Ryan was not qualified as an expert witness and it should be noted that his testimony did not relate to the expression of any expert opinion.

   
   

4. The Department of Environmental Regulation called Donald Moores, pollution control specialist in their St. Petersburg office. Mr. Moores testified that he examined this application and the site and expects that should this lake be connected to the Anclote River there will be little flushing action within the waters of the lake and an eventual accumulation of debris. He expected that should this lake be connected to the river a continuous degradation of the waters in the lake would occur due to the buildup of materials in a generally stagnant situation and from surface runoff of neighboring lawns, roadways and other non-specific sources which would drain foreign materials into the lake and which would degrade the water quality of the river.

   
   

5. Mr. Moores testified that because of the dead-end nature of the lake and the canal leading from the lake into the Anclote River, the waters in the lake would remain stagnant and would be a source of pollution. He stated every time there were heavy rains in the area it would cause the lake to discharge an excessive amount of materials into the river.

   
   

6. It appears the developer has shown that the lake as it presently exists may satisfy water quality standards, however, when the development is completed and the finished roads are installed and as homes are built and occupied within the subdivision there is no assurance whatsoever shown that the lake waters will not become a source of pollution. The testimony indicated that surface runoff from lawns and roads cam be extremely harmful to water quality and therefore it must be concluded that when the development is completed the lake will be a potential source of pollution. It should be mentioned that the Petitioner has never furnished a hydrographic survey although he has been so requested by the State.

   
   

7. The Petitioner has stated that he needs to open the lake to prevent it from becoming stagnant. However, this begs the issue of this hearing for the Petitioner voluntarily excavating the lake and now seeks to be granted a permit to prevent it from becoming stagnant. It is not the responsibility of the State to correct the situation created by the Petitioner, particularly since the State has demonstrated to do so would endanger water quality below acceptable standards. This situation is the same as the First District Court of Appeals considered in the case of Young v. Askew 293 So.2d 395. In that case the court stated:

"The purpose of the development planned by petitioner is to create a large number of valuable waterfront lots on his uplands which would border the canals that are to be excavated for that purpose. While such plan would be highly beneficial from a development standpoint, there is no showing that such benefits would also redound to the public generally."

Although in this situation the Petitioner has attempted to draw a comparison between the existing bay or lagoon which is in close proximity to the subject lake, the evidence submitted concerning the lagoon was insufficient to demonstrate that the lake in question could maintain the same water quality standards as appear to be present in the lagoon. Further, the sampling of the lagoon in question was not extensive enough to support any specific conclusions. Samples were only taken from one location on one particular day, and since the area which drains into the bay is roughly one third the size of that which would drain into the lake in question, the lake will certainly receive a much greater amount of surface runoff that presently empties into the lagoon. Furthermore, the canal which leads into the lagoon appears to be much shorter than that which would lead into the lake. The depth of the lagoon is unknown as is the volume of water it generally contains.

In summary the applicant bases its presentation on the assumption that the lagoon is an identical model from which one can predict the water quality of the lake should the permit be granted. The only factual basis presented at this hearing for such assumption is the statement of Mr. Ryan that the lagoon "appeared" to be similar to him. This is simply not an adequate basis in fact to make such a finding. It is therefore RECOMMENDED that the application be denied.

DONE and ORDERED this 21st day of July, 1976, in Tallahassee, Florida.

KENNETH G. OERTEL, Director

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

(904) 488-9675

COPIES FURNISHED:

H. James Parker, Esquire

P. O. Box 279

North Port Richey, Florida 33568

R. L. Caleen, Jr., Esquire Assistant General Counsel

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

Tallahassee, Florida 32301

Docket for Case No: 76-000697

Orders for Case No: 76-000697