STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

V. E. WHITEHURST & SONS, INC., )

)

Petitioner, )

)

vs. ) CASE NO. 76-1919

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

)

Respondent. )

)

RECOMMENDED ORDER

This matter came before this division to resolve a dispute between the Petitioner and the Respondent, Department of Environmental Regulation.

APPEARANCES

For Petitioner: Stephen A. Rappenecker, Esquire

Post Office Box 566 Gainesville, Florida 32602

and

Sam T. Dell, Esquire Post Office Drawer J

Gainesville, Florida 32602

For Respondent: Vance M. Kidder, Esquire

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

Tallahassee, Florida 32301

The Petitioner proposes to drain approximately 1,500 acres in Alachua County, Florida in what is known as the Levy Lake area. The land in question is a low wet area which can probably be characterized as a wet prairie. The Petitioner proposes to install a dike and drainage system which would lower the level of surface water and permit the pasturing of cattle in the area. In its present condition the land is too wet to support a pasturing operation. The Petitioner has proposed to excavate a series of drainage ditches and surround the perimeter of the pasture with a dike and pair of perimeter canals connected to pumping stations which would remove excess water, particularly during the rainy seasons. The Department of Environmental Regulation opposes the Petitioners application on the grounds that reasonable assurances have not been provided that the proposed project will not endanger water quality and that the project is not in the public interest. The department proposes to deny the Petitioner's application for a permit under Chapter 403, F.S., and Public Law

92-500.

Much testimony was taken at this hearing as to whether this project, which has been partially completed, has violated water quality standards. The

excavation of the drainage canals that has been completed was accomplished by the use of a drag line and if the project is to continue it will be completed in that fashion. One of the issues regarding the use of this equipment is that during the excavation process the drag line stirs up muck and mud and creates a turbidity problem in those waters. This problem however, is of a temporary nature, for as soon as the construction is completed such condition will cease to exist. The Petitioner expects that should this project be completed the pasture would be able to support 300-400 head of cattle. As proposed the project would not discharge waters into other waters of the State unless the water levels within the dike were at an excessive level. Since the prairie is presently inundated with water and is normally so, it is to be expected that there would be considerable pumping to maintain the pasture in a dry condition during much of the year. The question of water quality standards would apply to this pumping discharge, and what possible pollutants would be in this water.

The Department of Environmental Regulation opposes the destruction of the natural habitat that presently exists in Lake Levy on the Petitioner's property. However, whether the department is philosophically opposed to the destruction of natural wildlife habitat is not the issue here. The department's only authority for regulation of such a project as this is on the grounds of water quality, not the preservation of natural habitat.

To put it another way, under Chapter 403, Florida Statutes, and the rules of the Department of Environmental Regulation, the Petitioner must provide reasonable assurances that the proposed project will not degrade water quality. In such a situation it is the burden of the Petitioner to come forward with the evidence required to make such a finding.

After reviewing all the evidence presented in this case it is clear that the Petitioner has not satisfied this burden. Very little if any testimony was presented as to the ultimate long range impact of this project on water quality. Evidence was presented as to water samples taken from the project as it presently exists in its incompleted condition. An evaluation of the project's present effect upon water quality is not very persuasive evidence from which one could draw conclusions as to the long term impact of installing a series of drainage canals in this low, wet area and the maintenance of a 300-head herd of cattle within this system. Only the vaguest references were made during this hearing as to opinions that this number of cattle over this area of land would not pose a water quality problem. No assurances were provided that the surface runoff from the proposed pasture would not contain fecal contaminants from the cattle and whether this would be a problem when the excess water is discharged. Furthermore, the Department of Environmental Regulation takes the position that the drainage canals when they are excavated will remain stagnant for periods of time during the dry season and such condition will cause a biological oxygen demand and be a potential source of pollution which will be discharged during periods of high water when the pumps are in operation.

The department also presented testimony from Mr. Gatewood who has had experience studying the Kissimmee River where drainage and cattle farming operations were prevalent. He expressed his opinion that cattle farming operations such as the one proposed here have been a major source of pollution in the Kissimmee River. While such testimony was of a general nature and relevant to this proceeding only by analogy, it is sufficient to raise substantial persuasive doubts as to the merits of the Petitioners application.

It is therefore RECOMMENDED that in the absence of the Petitioner presenting reasonable assurances that the proposed project would not violate water quality standards, the petition should be denied.

DONE and ENTERED this 6th day of April, 1977, in Tallahassee, Florida.

KENNETH G. OERTEL, Director

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

(904) 488-9675

COPIES FURNISHED:

Stephen A. Rappenecker, Esquire

P. O. Box 566

Gainesville, Florida 32602

Sam T. Dell, Esquire

P. O. Drawer "J" Gainesville, Florida 32602

Vance H. Kidder, Esquire

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

Tallahassee, Florida 32301

Docket for Case No: 76-001919

Orders for Case No: 76-001919