STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

BOARD OF COUNTY COMMISSIONERS OF ) BREVARD COUNTY, )

)

Petitioner, )

)

vs. ) CASE NO. 76-1780

) DEPARTMENT OF ENVIRONMENTAL ) REGULATION, )

)

Respondent, )

) RICHARD E. BARRETT, ET. AL., ) PAUL WILLIAMS, AND NED A. READING )

)

Intervenors, )

)

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 April 27 and 28, 1977, in Cocoa, Florida.

APPEARANCES

For Petitioner: Clifton A. McClelland, Jr.

William Arnold Titusville, Florida

For Intervenors: Leon Stromire and Bruce T. McKinley

Board of County Commissioners of Brevard County

Cocoa, Florida

For Respondent: Paul Williams, Ned A. Reading and

Richard E. Barrett, et al.; and Vance W. Kidder,

Tallahassee, Florida

Department of Environmental Regulation

During September, 1972, the Board of County Commissioners of Brevard County ("Petitioner" hereafter) filed an application for a dredge permit with the Trustees of the Internal Improvement Trust Fund. During the pendency of the application dredge and fill permitting activities previously assigned by statute to the Trustees of the Internal Improvement Trust Fund were transferred to the Department of Environmental Regulation ("Respondent" hereafter). On or about August 31, 1976, the Respondent issued its notice of intent to deny the permit application. On or about September 17, 1976, the Petitioner filed a petition for formal proceedings with the Respondent. In accordance with s120.57(1)(b)(3), Florida Statutes (1976 Supp.) the Respondent forwarded the

petition to the office of the Division of Administrative Hearings for the assignment of a hearing officer and the scheduling of a hearing. Paul Williams, Ned A. Reading, and Richard E. Barrett, et al. ("Intervenors" hereafter) filed petitions to intervene which were granted by order entered January 13, 1977.

Other pending motions were determined in that order, and in orders entered February 1, and February 14, 1977. The final hearing was originally scheduled to be conducted on January 26, 1977 by notice dated November 4, 1976. The hearing was continued upon motion of the Intervenors and was rescheduled by notice dated February 17, 1977. On or about March 14, 1977 the St. Johns River Coordinating Council petitioned for leave to intervene in the proceeding. The petition was granted by order entered April 11, 1977. Representatives of the St. Johns River Coordinating Council appeared at the hearing, and its president testified at the hearing as a member of the public at large. The St. Johns River Coordinating Council did not take an active part in presenting evidence at the hearing.

The Petitioner called the following witnesses at the hearing: James H. Taylor, the Petitioner's public works coordinator; R. H. Driskell, the Petitioner's county engineer; James D. Stevenson, Jr., the director of engineering and pollution control for the Brevard County Health Department; and Joe Wickham, a member of the Brevard County Board of County Commissioners. The Intervenors called the following witnesses: Walter C. Daniels, Ned A. Reading, Richard E. Barrett, Norman Crank, Jr., Harry J. Sands, Jr., Jack Murrian, Earl Miller, all of whom are Intervenors; and Frank B. Johns, the Brevard County property appraiser. The Respondent called the following witnesses: Jorge Southworth, an environmental specialist employed by the Respondent; Dr. Landon Ross, the Respondent's chief biologist; James Holbert, a biologist employed by the Respondent; and Bernard A. Barnes, an employee of the Respondent's enforcement section. Hugh C. Nicolay, the President of the St. Johns River Coordinating Council, testified as a member of the public at large.

Hearing Officer's Exhibits 1-24; Petitioner's Exhibits 1-20; Intervenor's Exhibits 1-8; and Respondent's Exhibits 1, 2 and 4-9 were offered into evidence at the final hearing and were received. Respondent's Exhibit 3 was offered into evidence but was rejected. The parties have submitted post-hearing legal memoranda including proposed findings of fact and recommended orders.

FINDINGS OF FACT

1. The Petitioner is the duly constituted governing body of Brevard County, Florida. The Petitioner is seeking through this proceeding, an "after- the-fact" permit approving the construction of a canal or drainage ditch located in Brevard County.

   
   

2. The Intervenors are residents of Brevard County who reside in a residential subdivision served by the drainage ditch.

   
   

3. The Respondent is the governmental agency duly authorized to issue dredge and fill permits, and permits for the operation or construction of any installation that may be a source of air or water pollution. Dredge and fill permitting functions presently assigned to the Respondent were previously exercised by the Board of Trustees of the Internal Improvement Trust Fund. Permitting for potential sources of air or water pollution functions presently assigned to the Respondent were previously assigned to the Department of Pollution Control. The term "Respondent" as used herein will include the predecessors of the Department of Environmental Regulation where appropriate.

4. The drainage ditch which is the subject of this action, connects Lake Washington in southern Brevard County to a drainage ditch or canal system which serves a residential subdivision known as Lakewood Manor. The ditch is known as the "Lake Washington Canal" or the "Sands Canal". The ditch is located east of Lake Washington and west of Interstate Highway 95. It serves as a part of the drainage system for the Lakewood Manor Subdivision. It also serves to provide heating access to Lake Washington for residents of the subdivision.

   
   

5. The total land area that will drain into the system, if all surrounding areas are fully developed, would be approximately 290 acres containing a maximum of 125 homes. Lot sizes in Lakewood Manor vary from approximately three quarters of an acre to slightly more than one and one half acres. The subdivision is a rural residential area. Homes with an approximate value of from $50,000 to $150,000 have been constructed. The area has been kept in as nearly a natural condition as a residential use would permit.

   
   

6. Lake Washington is a part of the St. Johns River. The river enters Lake Washington south of Highway 192 and flows northward. Lake Washington is designated as a Class I water of Florida. Lake Washington serves as the primary drinking water supply for the City of Melbourne in southern Brevard County. Prior to October, 1970, Lake Washington had been designated as Class III water.

   
   

7. During 1964, a Mr. C. C. Jobe submitted an application to the Central and Southern Florida Flood Control District requesting a permit to construct a project to provide drainage and boating access from his property to Lake Washington. In October, 1964, the Flood Control District notified Mr. Jobe that the Corps of Engineers approved his application, and that his permit would be issued when he submitted copies of necessary easements. During 1967 the Petitioner became active in the project and asked Mr. Jobe to request the Flood Control District to issue a permit to the Petitioner for the project. On May 29, 1967, Mr. Jobe wrote to the Flood Control District requesting that the permit be issued to Brevard County. Copies of quitclaim deeds through which necessary easements were obtained were forwarded with the letter. By April of 1970 the Petitioner had acquired all necessary casements.

   
   

8. Prior to April, 1970, a drainage ditch and canal system was constructed to serve the Lakewood Manor subdivision. The system consisted of three parallel channels. The outer channels connected into the middle channel, which extended into the marsh area of Lake Washington. The system terminated waterward of the of the ordinary high water line to a point approximately 1800 feet from the ordinary low water line of Lake Washington. Apparently believing that no further permit was required from the Flood Control District, or from the Respondent, the Petitioner, in May and June of 1970, constructed a ditch or canal from the western end of the Lakewood Manor canal system into Lake Washington. It is this section of the ditch system which is the subject of this matter.

   
   

9. Some time during the summer of 1972 a public controversy arose with respect to the ditch, and it was revealed that the Petitioner did not have a permit in its name for construction of the project. The Petitioner contacted representatives of the Flood Control District, and in August, 1972, the Flood Control District issued a permit for the project to Mr. Jobe, and on the same date transferred the permit to the Petitioner. By letter dated August 24, 1972, the Board of Trustees of the Internal Improvement Trust Fund advised the Petitioner that it should have received a permit from the Trustees for construction of the ditch. The Petitioner thereafter forwarded an application for formal approval of the project. The Respondent thereafter misplaced the

   application, and it was resubmitted. By letter dated March 20, 1973, the Respondent notified the Petitioner that it had consulted other interested governmental agencies, including the Florida Game and Fresh Water Fish Commission, the Department of Pollution Control, the Department of Natural Resources, the United States Department of the Interior, and the United States Environmental Protection Agency, and that each agency had made evaluations adverse to the project.

   
   

10. The Respondent suggested that an informal conference be conducted. The meeting was conducted in October, 1974. At the meeting the Petitioner was advised that the project was unacceptable and that the Petitioner could either apply for an after-the-fact permit for the project as it existed, apply for an after-the-fact permit for a modified system, or decline to apply for a permit

    and rely upon a judicial resolution of the matter. In response to that meeting, by letter dated November 29, 1974, the Petitioner made a further formal application for an after-the-fact permit for the project as it existed. By letter dated August 31, 1976, the Respondent issued its notice of intent to deny the application. Thereafter the Petitioner filed its petition for formal proceedings, and this action ensued.

    
    

11. Continued operation of the drainage ditch which connects the Lakewood Manor drainage system with the waters of Lake Washington will have an adverse impact upon the water quality of Lake Washington. Concentrations of dissolved oxygen in the waters of the drainage ditch have been measured at less than 4 mg/1. Dissolved oxygen concentrations in the canal system are lower than concentrations in Lake Washington. Toxic substances have also been detected in the canals, most especially chlorides. Water quality within the ditch is worse than the water quality of Lake Washington. Tile 1800-foot connecting ditch which the Petitioner constructed permits the waters of the drainage ditch to enter Lake Washington without being filtered through aquatic vegetation. The connecting ditch is between the ordinary high water and ordinary low water marks of Lake Washington, and would normally be dominated by wetlands vegetation. Wetlands vegetation would serve as a filtration system if it were present, and would minimize the adverse effects of the drainage ditch system.

    
    

12. Water quality within drainage ditches or canals generally deteriorates. The instant ditch system is relatively new, and deterioration has not yet been so profound. Development along the ditch system is not the sort that would have the most adverse effect upon water quality of the system. Homes are well spread out, and there is little paving that would permit a direct discharge of drainage runoff into the ditch, and thus into Lake Washington. Nonetheless, the ditch system will, over a period of years, deteriorate, and it is likely that there will be increasingly frequent violations of water quality standards within the ditch system. The direct discharge of water from the system into Lake Washington will thus have an increasingly adverse effect upon the waters of Lake Washington. Although intensive development is not planned in the area, even the minimal use of fertilizers, and insecticides that can be expected in the area is likely to have an adverse effect upon the water quality of the ditch, which effect will cumulate. The precise impact that the drainage system will have upon the waters of Lake Washington is not subject to finite measurement. It is apparent from the evidence that the only effect the ditch can have upon water quality of Lake Washington is negative, and that the effect will worsen with the passage of time.

    
    

13. The waters of the St. Johns River enter Lake Washington from the south, and exit to the north. At the point where the St. Johns enters Lake Washington dissolved oxygen levels are frequently below 4 mg/1, and

    concentrations of toxic substances, most especially chlorides, frequently exceed permissible limits provided in the Respondent's rules. It appears from the evidence that this condition results from agricultural activities in surrounding areas.

    
    

14. Other canals and drainage systems empty into Lake Washington. It is probable that several of these canals have water quality that is worse than that of the Lakewood Manor drainage ditch system. It appears that these other canals were constructed several years prior to the construction of the canal that is the subject matter of this action.

    
    

15. Plugging of the Lakewood Manor drainage ditch system will not have an adverse effect upon drainage within the subdivision. If the land were restored to its normal marshland condition, water from the portion of the drainage ditch system above the ordinary high water line of Lake Washington would continue to drain into Lake Washington. Rather than discharging directly into Lake Washington, however, the water would filter through wetlands vegetation.

    
    

    CONCLUSIONS OF LAW

    
    

16. The Division of Administrative Hearings has jurisdiction over the parties to this action and over the subject matter. Sections 120.57(1), 120.60, Florida Statutes (1976 supp.)

    
    

17. The Petitioner's permit application has been construed as a request for after-the-fact approval of the 1800 foot ditch connecting the Lakewood Manor drainage ditch system with Lake Washington. Petitioner is seeking issuance of an after-the-fact permit under the provisions of Chapters 253 and 403, Florida Statutes. In addition to contending that the subject ditch comports with the requirements of the statutes, the Petitioner and the Intervenor have contended that the statutes did not apply to the Petitioner at the time that the ditch was constructed. This contention is without merit.

    
    

18. The portions of Chapter 253 which have a bearing upon this action are Sections 253.123, 253.124, and 253.126. The provisions of Section 253.123(1) were first adopted in 1957. Chapter 57-362, Laws of Florida. The provisions of Sections 253.123(2) through (4) and of Section 253.126 were originally adopted in 1967. Chapter 67-393, Laws of Florida. These paragraphs have subsequently been amended, but for all purposes relative to this action, the statutes as originally adopted remain in effect. Section 253.123(1) provides:

    
    

    "No private person, firm or corporation shall construct islands or add to or extend existing lands or islands bordering on or being in the navigable waters of the state as defined in s253.12(1) by pumping sand, rock or earth

    from such waters or by any other means without first complying with s253.122; provided, nothing herein contained shall relate to artificially created navigable waters."

    
    

    Until 1967 this paragraph would not have applied to the Petitioner since the Petitioner is not a private person, firm or corporation. Section 253.126, as amended in 1967 provided:

    
    

    "The limitations and restrictions imposed by this chapter . . . upon the construction of

    islands or the extension or addition to existing lands or islands bordering on or being in the navigable waters as defined in Section 253.12, shall apply to the state, its agencies and all political subdivisions and governmental units. No other general or special act shall operate to grant exceptions to this section unless this section is specifically repealed thereby."

    
    

    In the same law creating this language, the Legislature adopted Section 253.123(2), which provides:

    
    

    "The removal of sand, rock or earth from

    the navigable waters of the state as defined in s253.12 and the submerged bottoms thereof by dredging, pumping, digging, or any other means shall not be permitted except [under certain enumerated circumstances]."

    
    

19. The Petitioner contends that the language of paragraph (2) of Section

    253.123 applies only to private persons, firms or corporations. This contention is without merit. The language "no private person, firm or corporation" from paragraph (1) of the section is not repeated in paragraph (2). It must therefore be presumed that the Legislature intended the terms of paragraph (2) to apply to anyone who might conduct the activities proscribed in the paragraph.

    
    

20. The provisions of Florida Statutes, Section 403.061, were originally adopted in 1967. Chapter 67-436, Laws of Florida. This section empowers the Respondent to inter alia:

    
    

    "(16) Establish a permit system whereby a permit may be required for the operation, construction, or expansion of any installation that may be a source of air or water pollution; provide for the issuance and revocation of such permits and for the posting of an appropriate bond to operate."

    
    

    Petitioner and the Intervenors correctly contend that the permitting provisions of the section are not self-operative. Therefore unless the Respondent has established a permitting system by rules and regulations no permit would be required. At the time of the hearing Petitioner and the Intervenors were able to find no regulations that had been adopted in accordance with the section prior to 1972, after the drainage ditch involved in this action was constructed. Subsequent to the hearing the Respondent provided copies of regulations that had been promulgated shortly before the construction. The parties have been given an opportunity to comment upon these regulations. The regulations as they existed in 1970 bear little resemblance to present rules and regulations that have been adopted by the Respondent under authority of Section 403.061. The regulations do, however, appear to apply to canals aid drainage ditches to the same extent as the present rules and regulations. The present regulations do so apply.

    
    

    Farrugia v. Frederick, 344 So.2d 921 (1 D.C.A. Fla. 1977) Cove Estates, Inc. v. State Pollution Control Board, 325 So.2d 468 (1 D.C.A. Fla. 1976)

21. An applicant for a dredge and fill permit, and for a permit to operate installations that may result in pollution has the burden of affirmatively providing reasonable assurance that the short term and long term effects of the project will not cause pollution, and will not result in violations of the water quality criteria, standards, requirements and provisions of the Florida Statutes, and the Respondent's rules and regulations. Rule 17-4.07(1), 17- 4.28(3), Florida Administrative Code. The applicant has the further burden under Chapter 253 of affirmatively establishing that a proposed dredging project will be in the public interest. Young v. Askew, 293 So.2d 395 (1 D.C.A. 1974).

    
    

22. There has been some discussion in posthearing arguments, and legal memoranda respecting which of the Respondent's rules would govern the instant project. Petitioner and the Intervenors have contended that rules in effect at the time the project was constructed should apply. The Respondent has made various connections, and has suggested that rules in effect when the Respondent issued its notice of intent to deny the proposed project should govern. In determining whether permits were required for the project at the time it was undertaken, rules and regulations in effect on that date govern. For other purposes, however, rules and regulations in effect at the time that the Petitioner made application for a permit govern. Sexton Cove Estates, Inc. v. State Pollution Control Board, supra at p. 470.

    
    

23. The Intervenors have contended that the doctrine of equitable estoppel applies to prevent the Respondent from denying the instant permit application. Intervenors argue that the Respondent failed to give notice to any potential purchasers of residential property in Lakewood Manor that the canal system might be plugged, and also note that the Respondent held the permit application for approximately four years before issuing its notice of intent to deny. The doctrine of estoppel has no application in the instant case. In order for the doctrine to apply it is essential that the party claiming the existence of an estoppel was influenced or misled by the conduct, act or omission of the party against whom the doctrine is invoked. Macina v. Magurno, 100 So.2d 369 (Fla. 1958); Palatka Federal Savings and Loan Assoc. v. Raczkowski, 263 So.2d 842 (1

    1. Fla. 1972); Boynton Beach State Bank v. Wythe, 126 So.2d 283 (2 D.C.A. Fla. 1961). In the latter case the court quoted the following as constituting the elements of an equitable estoppel: (at p. 285)

       
       

       "(1) Words and admissions, or conduct, acts, and acquiescence, or all combined, causing another person to believe in the existence of a certain state of things.

       1. In which the person so speaking, admitting, acting, and acquiescing did so willfully, culpably, or negligently.

       2. By which such other person is or may be induced to act so as to change his own previous position injuriously."

    
    

    Clearly, the Respondent in this case did nothing to encourage any of the Intervenors to either purchase or not purchase lots in the Lakewood Manor subdivision. It is also clear that the Respondent did nothing to influence the Petitioner to construct the drainage ditch without applying for a permit. If the doctrine of estoppel is to apply it is necessary that some omission of the Respondent be such as to justify the doctrine. No authority has been cited to the effect that the Respondent was required to notify prospective purchasers of lots in Lakewood Manor that a permit application was pending before it. It would appear that, if anyone, either the seller of lots in the subdivision, or

    the Petitioner would have been obliged to make known to prospective purchasers that a permit application was pending, and that the canal system was subject to being plugged. While some purchasers of lots in the subdivision may have been induced to purchase lots due to the fact that the canal system opened into Lake Washington, the Respondent was not responsible for that inducement.

    
    

24. The mere fact that a long period of time lapsed between the time that the Petitioner originally sought an after-the-fact permit, and the time that the Respondent ultimately issued its notice of intent to deny would not justify invocation of the doctrine of equitable estoppel. If anything, the Intervenors have been benefited by the passage of time by having the opportunity to utilize the canal system.

    
    

25. The Petitioner and the Intervenors have failed to establish that the ditch connecting the Lakewood Manor drainage system with the waters of Lake Washington will not adversely effect the waters of Lake Washington. It does affirmatively appear that the ditch will have an adverse impact upon the waters of Lake Washington, and will result in the discharge of waters which do not meet the Respondent's water quality criteria into Lake Washington. This is true whether 1972 or present regulations are considered.

    
    

26. The Petitioner and the Intervenors have failed to establish that the connecting drainage ditch is in the public interest. There is a substantial public interest in preserving the water quality of Lake Washington. The Intervenors have only a private interest in wishing to maintain water access to Lake Washington. There is a public interest in promoting proper drainage of flood waters, however, it affirmatively appears from the evidence that the ditch has neither a positive nor a negative effect upon drainage of the Lakewood Manor subdivision.

    
    

27. The Petitioner's application for permits under the provisions of Chapters 253 and 403, Florida Statutes, should be denied.

RECOMMENDATION

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

That a final order be entered denying the Petitioner's application for permits in accordance with the provisions of Chapters 253 and 403, Florida Statutes.

RECOMMENDED this 8th day of July, 1977, in Tallahassee, Florida.

G. STEVEN PFEIFFER Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 8th day of July, 1977.

COPIES FURNISHED:

Joseph W. Landers, Jr. Clifton A. McClelland, Jr. Esquire Secretary Post Office Box 37

Department of Titusville, Florida 32780 Environmental Regulation

2562 Executive Center Leon Stromire, Esquire Circle East 425 Brevard Avenue

Montgomery Building Post Office Box 1888 Tallahassee, Florida 32301 Cocoa, Florida 32922

Vance W. Kidder, Esquire Mr. Hugh C. Nicolay Department of Chairman Environmental Regulation St. Johns River

2562 Executive Center Coordinating Council Circle East Post Office Box 156

Montgomery Building Palm Bay, Florida 32905 Tallahassee, Florida 32301

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

BOARD OF COUNTY COMMISSIONERS ) OF BREVARD COUNTY, )

)

Petitioner, )

)

vs. ) CASE NO. 76-1780

) DEPARTMENT OF ENVIRONMENTAL ) REGULATION, )

)

Respondent. )

and )

) RICHARD E. BARRETT, et al., ) PAUL WILLIAMS, and NED A. )

READING, )

)

Intervenors. )

)

APPENDIX TO RECOMMENDED ORDER, RULINGS IN ACCORDANCE WITH

FLORIDA STATUTES, SECTION 129.59(2)

The parties have submitted post-hearing legal memoranda including proposed findings of fact, conclusions of law and recommended orders. Rulings upon

proposed findings of fact and a statement of grounds for denying written applications or other requests in connection with this proceeding are set out herein in accordance with Section 120.59(2), Florida Statutes (1976 supp.).

Proposed findings of fact submitted by the Petitioner and the Intervenors numbered 1-8, 10-12, 15-22, 24-26, 28-31, 33, 35, and 38-41 have been substantially adopted in the findings of fact set out in the Recommended Order. Proposed findings of fact submitted by the Petitioner and the Intervenors numbered 7, 9, 13, 14, 23, 27, 32, 34, 36, 37, 43, 44, and 45 are rejected.

Proposed findings of fact submitted by the Respondent numbered 1-5, 7, 8, 10, 11, and 14-16 have been substantially adopted in the finding of fact set out in the Recommended Order. Findings of fact No. 6 has been substantially adopted, except that the last sentence of the paragraph is rejected. Paragraph

9 has been substantially adopted, except that the last sentence of the paragraph is rejected. Paragraph 12 has been substantially adopted, except that insufficient evidence was presented at the hearing to support the last sentence of the proposed finding. Paragraph 13 has been substantially adopted, except that the final sentence is rejected. The canal does serve a drainage function; however, restoring the canal to its natural marsh condition will serve the same drainage function.

ENTERED this 8th day of July, 1977, in Tallahassee, Florida.

G. STEVEN PFEIFFER, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304

(904) 488-9675

COPIES FURNISHED:

Joseph W. Landers, Jr. Secretary

Dept. of Environmental Regulation 2562 Executive Center Circle, E. Montgomery Building

Tallahassee, Florida 32301

Clifton A. McClelland, Jr., Esquire Post Office Box 37

Titusville, Florida 32780

Leon Stromire, Esquire

425 Brevard Avenue Post Office Box 1888 Cocoa, Florida 32922

Vance W. Kidder, Esquire

Dept. of Environmental Regulation 2562 Executive Center Circle, E. Montgomery Building

Tallahassee, Florida 32301

Mr. Hugh C. Nicolay Chairman

St. Johns River Coordinating Council Post Office Box 156

Palm Bay, Florida 32905

Docket for Case No: 76-001780

Orders for Case No: 76-001780