STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

VO-LASALLE FARMS, INC., )

)

Petitioner, )

)

vs. ) CASE NO. 76-1779

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

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, G. Steven Pfeiffer, held a public hearing in this case on January 27, 1977, in Daytona Beach, Florida.

The following appearances were entered: Paul E. Raymond, of the firm Raymond, Wilson, Conway, Barr, and Burrows, Daytona Beach, Florida, for the Petitioner, Vo-LaSalle Farms, Inc.; and Vance W. Kidder, Tallahassee, Florida, for the Respondent, Department of Environmental Regulation.

By letter dated August 3, 1976, the Department of Environmental Regulation ("Respondent" hereafter) gave notice of its intent to deny the application of Chester C. Strawn and Vo-LaSalle Farms, Inc. ("Petitioner" hereafter) for certification for a dredge and fill project at the easterly end of Lake Winona in Volusia County, Florida. A copy of the August 3 letter was received in evidence at the final hearing as Respondent's Exhibit 2. The Petitioner filed a petition for hearing pursuant to s. 120.57. A copy of the petition was received in evidence as Hearing Officer's Exhibit 1. The final hearing was scheduled by notice dated November 4, 1976 (Hearing Officer's Exhibit 2).

The Petitioner called the following witnesses: Chester C. Strawn; Wayne Bostic, the Director of the YMCA in Daytona Beach; Dr. William Haller, a Research Scientist and Associate Professor at the University of Florida; Dr. James T. Griffiths, a citrus grower and director of special projects for Florida Citrus Mutual; Fred Thelman, a member of the Board of Directors of the Daytona Beach YMCA; and Sam Bell, a member of the Florida House of Representatives, and Chairman of the Daytona Beach YMCA Camp Committee. The Respondent called the following witnesses: Reese Keesler, an environmental specialist employed by the Respondent; and Walter Wheeler, a dredge and fill supervisor employed by the Respondent. Hearing Officer's Exhibits 1 and 2, Petitioner's Exhibits 1 through 10, and Respondent's Exhibits 1 through 8 were offered into evidence and were received. The parties have submitted Post-Hearing Memoranda of Law.

FINDINGS OF FACT

1. Petitioner has submitted an application to the Respondent for a permit to undertake a dredge and fill project at the easterly end of Lake Winona in Volusia County, Florida. The specific area involved is circled in red ink on a

   map which was received in evidence at the hearing as Petitioner's Exhibit 1. Petitioner contemplates the dredging and removal of an approximately 130' x 185' marsh which is adjacent to a canal at the extreme eastern tip of the lake. The canal was constructed some years ago by unknown persons. Petitioner wants to utilize the dredged material to fill in a dogleg at the eastern end of the canal, and to construct a berm, or dyke, and a retention pond. The Petitioner owns a portion of the lakefront property which adjoins the proposed project. A portion of the project would be on land owned by other individuals who have apparently consented to the project, and intend to pay for a portion of it. It is Petitioner's desire to replace the marshland with a sandy beach. A drawing of the area which shows the portion of the canal which would be filled, and the portion of the marsh which would be excavated was received in evidence as Petitioner's Exhibits 5. A cross sectional diagram which depicts the marsh, or muck land which would be removed, the canal which would be filled, and the berm or dyke which would be constructed was received in evidence as Respondent's Exhibit 8. Petitioner originally attempted to accomplish his proposed project without seeking a permit from the Respondent. Before work was stopped, a portion of the marshland which the Petitioner is seeking to remove was dredged.

   
   

2. Lake Winona is a relatively undisturbed and pollution-free lake in comparison to most of the lakes in central Florida. The YMCA of Daytona Beach maintains a campground on land which it owns adjacent to the lake. The site of the camp is marked in purple ink on Petitioner's Exhibit 1. The YMCA and its members are the primary recreational users of the lake.

   
   

3. A fernery has been operating for some years on land adjacent to the tip of the canal, a portion of which the Petitioner is proposing to fill. During certain periods large amounts of water are discharged from the fernery into the lake. The pattern which the discharged water follows in flowing into Lake Winona is depicted with red arrows on a drawing which was received in evidence as Respondent's Exhibit 1. Most of the water is discharged directly, without being filtered in any manner into the canal which the Petitioner proposes to fill. A small portion of the water is discharged through the marsh which the Petitioner proposes to dredge.

   
   

4. Marshlands, and other transitional zones surrounding water bodies are of crucial importance to the water-quality of the body, and to preservation of fish and wildlife resources in the water body. A band of marshland, occasionally broad and at times a mere fringe, surrounds nearly all of Lake Winona. This band of marshland is critically important to the water quality of Lake Winona, and to preservation of the fish and wildlife resources of Lake Winona. The marshlands serve as a filtration system for runoff which enters the lake from uplands. The marshlands also serve as a habitat for fish and wildlife species, and forms an essential part of the food chain for aquatic wildlife in the lake.

   
   

5. The marshland which the Petitioner is seeking to dredge performs all of these functions to a limited extent. Because of its proximity to the fernery, and to the canal, however, this particular marsh area does not serve as a particularly effective filtration system, wildlife habitat, or food producer. Because of a sand fill which is located upland from the marsh, most of the general upland runoff is diverted away from this particular marsh area. The primary runoff for which the subject marshland could be called upon to serve as a filtration system comes from the fernery. The marshland is unable to serve this function for two reasons. In the first place, most of the runoff from the fernery is discharged directly into the canal which adjoins the marsh. This runoff is not filtered in any way as it flows through the canal into the lake.

   In the second place, runoff from the fernery which does reach the marsh reaches only a small corner of it, and this small amount of marsh is not capable of performing such a formidable filtration task. Tests reveal that virtually the same amount of nutrients are discharged through the marsh from the fernery runoff as are discharged directly into the canal from the fernery. The subject marsh may serve to a limited extent as a habitat for aquatic wildlife. That extent is, however, extremely minimal. The marsh is submerged only approximately thirty percent of the year. The overabundance of nutrients in the marsh which come from the fernery would appear to make the marsh an unpalatable natural habitat.

   
   

6. Large quantities of runoff from the fernery have caused considerable erosion in the area which the Petitioner proposes to fill. In the weeks just prior to the hearing, a severe amount of erosion occurred. This erosion is depicted in photographs that were received in evidence as Petitioner's Exhibits 2, 3, and 4, and in slides which were received in evidence as Respondent's Exhibit 10.

   
   

7. The Petitioner's proposed dredge and fill project is not likely to cause any adverse impact upon the water quality of Lake Winona. As has already been stated, very little upland runoff flows through the marsh area which the Petitioner proposes to dredge. The runoff which does enter the marshland is primarily from the fernery, and the marshland is not able to provide an effective filtration of the large amounts of nutrients contained in this runoff. The most immediate source of pollution in Lake Winona is the fernery. Most of the runoff from the fernery is discharged without the benefit of any filtration at all into the canal, and then directly into Lake Winona. The Petitioner's proposed project would provide a retention pond. Runoff from the fernery would be discharged directly into the retention pond, and would not reach Lake Winona until after it had filtered through a berm which would be constructed from the muck, or fill dirt taken from the marshland. Petitioner's project can be expected to have a positive affect upon water quality in Lake Winona because runoff from the fernery would no longer be discharged directly into the lake.

   
   

8. Petitioner's proposed project is not likely to cause any increased erosion. Considerable erosion is already occurring in the area as a result of substantial runoff from the fernery. Petitioner's project will prevent this erosion. The removal of the marshland is not likely to cause any additional erosion because very little upland runoff flows through the marsh.

   
   

9. Petitioner's proposed project is not likely to have any adverse impact upon the fish and wildlife resources of Lake Winona. As has already been stated, the marshland which would be removed provides an extremely limited habitat for wildlife, and an inefficient link in the food chain due to its proximity to the fernery and to the canal, and due to the fact that it is submerged only thirty percent of the year.

   
   

10. The Petitioner has agreed to permit the primary recreational user of Lake Winona, the Daytona Beach YMCA, to utilize the area involved in this permit application. He has agreed to permit members of the YMCA to land boats in the area, and to use adjoining lands for supervised recreational purposes.

    
    

11. The Respondent has pointed out that even though the removal of the subject marshland may not have any clearly measurable impact upon the water quality, and wildlife resources of Lake Winona, the cumulative effects of a piecemeal removal of a considerable amount of the marshlands surrounding the lake would have a seriously detrimental effect. The evidence offered at the

    final hearing in this case supports that proposition. The Respondent fears that the granting of a permit to the Petitioner in this case would mandate a granting of similar permit applications from other owners of property which adjoins Lake Winona. This fear is misplaced in the instant case. The canal and the fernery which adjoin the Petitioner's property render the instant situation unique. If not for the canal and the fernery, it would appear that removal of the marshland would be likely to have an adverse impact upon Lake Winona, even if the impact could not be specifically measured because of the cumulative effect pointed out by the Respondent.

    
    

12. Pollution and erosion being caused as a result of discharge from the fernery, and the existence of the canal necessitate the taking of some action. Petitioner's proposed project will be helpful in alleviating these circumstances. Petitioner has given reasonable assurance that the proposed project will not have an adverse impact upon the water quality of Lake Winona, or upon the fish and wildlife population of Lake Winona. Petitioner's proposed project does not, however, provide the best solution to the problems resulting from the fernery and the canal. The most ideal solution would be to fill the entire canal with fill dirt from uplands areas, and to restore the entire area to a marshland, which was its original natural state. Other somewhat less dramatic, but desirable solutions would be to dredge smaller amounts of the marshland than proposed by the Petitioner, and to fill the canal from those sources, restoring some of the subject area to its original state.

    
    

    CONCLUSIONS OF LAW

    
    

13. The Division of Administrative Hearings has jurisdiction over the parties to this action, and over the subject matter.

    
    

14. An applicant for a dredge and fill permit has the burden of affirmatively providing reasonable assurance that the short term and long term effects of the proposed project will not result in violations of the water quality criteria, standards, requirements, and provisions of the Florida Statutes and the Rules and regulations of the Respondent. Rule 17-4.28(3), Florida Administrative Code. The applicant also has the burden of affirmatively establishing that the proposed project will not interfere with the conservation of fish, marine, and wildlife or other natural resources. Rule 17-4.29(6)(a), Florida Administrative Code. The applicant must further show that the proposed project will be in the public interest. Younge v. Askew, 293 So.2d 395 (1 DCA Fla. 1974)

    
    

15. Petitioner's proposed dredge and fill project is in the public interest, because it will serve to lessen the impact of the major immediate source of pollution in Lake Winona, Florida, and to eliminate severe erosion. The project will also serve to accommodate increased recreational use of the lake and surrounding woodlands by the Daytona Beach WMCA, which is presently the primary recreational user of the lake.

    
    

16. The Petitioner has given reasonable assurance that the proposed project will not result in any degrading of the water quality of Lake Winona, and will not interfere with conservation of the wildlife and natural resources of Lake Winona. To whatever extent the dredging of the subject marshland might adversely affect the water quality of the lake, or the natural resources of the lake, that negative impact is overcome by the positive effect the project will have in eliminating the major immediate source of pollution in Lake Winona, and a source of severe and harmful erosion. The fact that the Petitioner's project may not be the most environmentally sound and positive solution to problems

    created by the fernery, and canal does not necessitate the denying of the Petitioner's application so long as the Petitioner has given the assurances required by law.

    
    

17. Petitioner's application for dredge and fill permit should be granted.

RECOMMENDED ORDER

Based upon the foregoing Findings of Fact and Conclusions of Law, it is, RECOMMENDED:

That the Department of Environmental Regulation enter a final order granting the Petitioner's application for dredge and fill permit.

RECOMMENDED this 14th day of March, 1977, in Tallahassee, Florida.

G. STEVEN PFEIFFER Hearing Officer

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

COPIES FURNISHED:

Vance W. Kidder, Esquire Assistant General Counsel Department of Environmental

Regulation

2562 Executive Center Circle, E. Montgomery Building

Tallahassee, Florida 32301

Mr. Jay Landers Secretary

Department of Environmental Regulation

2562 Executive Center Circle E. Montgomery Building Tallahassee, Florida 32301

Paul E. Raymond, Esquire RAYMOND, WILSON, CONWAY, BARR

& BURROWS

1. O. Box 5725

   Daytona Beach, Florida 32018

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

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

   
   

   STATE OF FLORIDA

   DEPARTMENT OF ENVIRONMENTAL REGULATION

   
   

   VO-LASALLE FARMS, INC.,

   
   

   Petitioner,

   
   

   vs. DOAH CASE NO. 76-1779

   DER FILE NO. 64-31-0197-4E

   STATE OF FLORIDA, DEPARTMENT OF ENVIRONMENTAL REGULATION,

   
   

   Respondent.

   /

   
   

   
   

   FINAL ORDER

   
   

   By the Department:

   
   

   On March 4, 1977, the duly appointed Hearing Officer in the above-styled matter completed and served to the Petitioner and the Respondent a Recommended Order consisting of his Findings of Fact, Conclusions of Law and Recommended Order, a copy of which is attached hereto as Exhibit "A".

   
   

   Pursuant to Section 17-1.26(2), Florida Administrative Code, and Section 120.57(1)(a)(8), Florida Statutes, the parties were allowed fifteen (15) days in which to present written exceptions to the Recommended Order. Neither the Petitioner nor Respondent submitted Exceptions. After notice to the parties, the Recommended Order came before me, as head of the Department, on April 4, 1977, for final agency action on this matter. After consideration of the entire record, the exhibits, pleadings and Recommended Order, the Secretary, as head of the Department, enters the following:

   
   

   FINDINGS OF FACT

   
   

   The Petitioner applied for a permit to dredge a marsh area at the easterly end of Lake Winona in Volusia County, Florida. At the hearing below, Petitioner testified that he intended to use spoil secured from dredging the marsh to fill an adjacent canal and to construct a stormwater retention pond designed to treat runoff from a nearby fernery which presently enters Lake Winona without adequate treatment. Such intent is not indicated in Petitioner's application.

   
   

   Based upon Petitioner's representations at the hearing below, the Hearing Officer recommended that the project be approved, having found that Petitioner had affirmatively demonstrated that; the project would not violate the Department's water quality standards; and, the project would not interfere with the conservation of the wildlife and natural resources of Lake Winona; and that the project was in the public interest.

   After consideration of the entire record, specifically including the exhibits, pleadings and the Hearing Officer's Findings of Fact, Conclusions of Law, and Recommended Order, I agree. It is therefore,

   
   

   ORDERED that the Hearing Officer's Findings of Fact, Conclusions of Law and Recommended Order are hereby adopted with the exception and upon the condition set forth below:

   
   

   1. Younge v. Askew, 293 So.2d 395 (1 DCA Fla. 1974), having dealt with the proposed construction of navigation channels falling within the ambit of Section 253.123(2)(a) and (3)(a), Florida Statutes, does not appear to offer guidance appropriate to this application.

      
      

   2. Appropriate authorization for the activities as described in the Hearing Officer's Findings of Fact shall be issued by the District Manager of the Department's St. John's River District upon the District Manager's approval of an engineering design, to be submitted by Petitioner, which adequately describes the retention pond and associated construction activities described by the Hearing Officer. Said approved engineering design shall be incorporated in the permit/certification to be issued, and compliance with such design shall be made a condition of such permit/certification.

DONE AND ENTERED this 15th day of April, 1977, in Tallahassee, Florida.

STATE OF FLORIDA DEPARTMENT OF ENVIRONMENTAL REGULATION

JOSEPH W. LANDERS, JR.

Secretary

2562 Executive Center Circle, East Montgomery Building

Tallahassee, Florida 32301

COPIES FURNISHED:

Paul Raymond Vance W. Kidder

Alex Senkevech, St. John's River District Manager, Department of Environmental Regulation

Docket for Case No: 76-001779

Orders for Case No: 76-001779