STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

NASSAU COUNTY RECREATION )

AND WATER CONSERVATION AND )

CONTROL DISTRICT NO. 1, )

)

Petitioner, )

)

vs. ) CASE NO. 76-1920

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

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated hearing officer, James E. Bradwell, held a public hearing in this case on November 8 and 9, 1977, in Tallahassee, Florida.

APPEARANCES

For Petitioner: Arthur I. Jacobs, Esquire

Jacobs, Sinoff, Edwards, Alford and Burgess Post Office Drawer "I"

Fernandina Beach, Florida 32034

For Respondent: Sheri W. Smallwood, Esquire

Department of Environmental Regulation 2652 Executive Circle, East Tallahassee, Florida 32301

The Nassau County Recreation and Water Conservation and Control District No. 1, petitioner herein, by and through its attorney, petitioned the Department of Environmental Regulation (DER), Respondent herein, for a hearing to be conducted pursuant to Chapter 120.57(1), Florida Statutes, therein requesting the Respondent to reconsider its proposed Order of Denial described in its September 15, 1976, letter from Dan F. Farley, Director, Division of Environmental Permitting, which was addressed to R. L. King, County Engineer, Nassau County, Florida.

BACKGROUND

Interest in the Mills Creek project began in the late 1950's. The Callahan area of Nassau County, Florida, in times of rain suffered flooding conditions.

In times of storm, there were disastrous floods. In both cases, life and property were in danger. This project was planned to alleviate those flood conditions in peak rain and storm periods. The project was approved for funding by Congress on August 8, 1965. A special taxing district was set up to fund the project. After numerous inter-agency meetings between Federal, County and State environmental agencies, the main channel (Mills Creek) was designed and

completed. The next channel designed and constructed was Cushing Channel, after the following inter-agency action transpired:

On May 11, 1971, a joint meeting of the Florida Game and Fresh Water Fish Commission (FG&FWFC) and the United States Soil Conservation Service (SCS) was had to discuss design and implementation. In August 1971 there was a field review by FG & FWFC and SCS. On October 22, 1971, there was a conference on small watershed projects, including Mills Creek, with all concerned State agencies participating. In November 1971 a full report regarding potential environmental problems was made to what was then the State Clearinghouse. In April 1972 another work session was had between the FG&FWFC biologists and SCS. On April 19, 1972, FG&FWFC advised that it had no objections to the project being classified in the Group I category, a classification which indicated that the project was of no significant environmental impact. Several other conferences were held and the project was redesigned. Dredge permit No. 45-39- 23531, for Cushing Channel, was issued on March 3, 1975, by the Board of Trustees of the Internal Improvement Trust Fund at the Cabinet Meeting held on that date without objections from the Department of Pollution Control (now DER) or the FG&FWFC. As a result of the issuance of that permit, the project was further constructed and is now approximately 75 percent complete.

To complete the remaining approximately 25 percent, on August 1, 1974, a request was made to the Clearinghouse for an inter-agency field review and conference. On October 30, 1974, the Clearinghouse indicated to SCS its general acceptance of the project if certain concerns of the FG&FWFC were adequately addressed. On January 15, 1976, another inter-agency meeting and conference was held at the Clearinghouse to discuss additional project modifications. In May an inter-agency meeting was held at the offices of DER and subsequent to that meeting the Environmental Assessment Report was issued declaring that the subject project posed no appreciable amount of damage to the environment. This report was prepared under the authority of the Watershed Protection and Flood Prevention Act (Public Law 566, 83rd Congress, 68 Stat. 666) (as amended) by the

1. S. Department of Agriculture, SCS, U. S. Department of Agriculture, Forest Service and filed with all State agencies.

   
   

   Petitioner was then required to submit this application to the St. Johns River Water Management Board. This Board under Chapter 373.016, F.S., has the responsibility, inter alia,:

   
   

   1. "To prevent damage from flood, soil erosion, and excessive drainage";

      
      

   2. "To preserve natural resources, fish and wildlife".

This Board, in certain instances, has concurrent powers with DER under Chapter 373.603, F.S., in that:

"The Department of Environmental Regulation is the governing board of any water management district and any officer or agent thereof may enforce any provision of this law or any rule or regulation adopted and promulgated or order issued thereunder to the same extent as any peace officer is authorized to enforce the law."

This Board on August 18, 1976, endorsed the completion of the Mills Creek project with the proviso that no direct connection of laterals, drainage ditches

and/or secondary connections be allowed within the boundaries of the flood plain than was then existing.

On September 15, 1976, an Intent to Deny the subject permit application was sent from DER to the Petitioner. That notice triggered the instant petition filed pursuant to Chapter 28-5, F.A.C., Decisions Determining Substantial Interests, Subsection 28-5-15, F.A.C., requesting this formal proceeding pursuant to Chapter 120.57(1), F.S.

ISSUE

Whether the Department of Environmental Regulation, upon all of the information presented before it, properly issued its Notice of Intent to Deny the request for a permit channelizing the subject streams within the Mills Creek Watershed.

FINDINGS OF FACT 1/

1. It is the Petitioner's contention that the Petitionerhas failed to demonstrate, as a matter of law, its entitlement toa permit for channelization of the Mills Creek Watershed initially because the project will entail an alleged loss of watershed and wildlife habitat "particularly since there are no restrictions on private drainage connection". As stated supra, in the Background section., one of the agencies that has commented on this project, the St. Johns River Water Management District, at its August 18, 1976, meeting endorsed the Mills Creek project with the recommendation that no direct connections of laterals, drainage ditches and/or secondary connections be allowed within the boundaries of the flood plain as they presently exist. There is at present a local ordinance pending to comply with this proviso which has been endorsed by the chairman of the Board of County Commissioners for Nassau County. And, aside from this fact, DER is authorized to incorporate finite limits into drainage permits to prevent excessive drainage into any project in which a permit is required. And, as stated, the county has acquiesced with the suggestion by Gerald Herting of DER that such constraints he placed in the permit provided favorable action is taken by DER. Testimony introduced during the hearing in the case reflects that provisional permits are not uncommon. (Testimony of Landon Ross and Douglas Bailey of DER and the Office of Environmental Protection, of FG&FWFC,respectively.)

   
   

2. Stephen Gatewood, an environmental specialist, analyzedthe Mills Creek project plans and also visited the site. He testified that the subject project was well planned ecologically in terms of soundness and, based on the manner in which the plans are drawn and the construction will be implemented, the least amount of environmental damage will result. He compared the Taylor Creek channelization project with the subject project and while noting that there were differences, he testified that he was unable to give his blessings to the subject project, inasmuch as the Taylor Creek project had been "a bad experience". The similarity between the two projects is the fact that there are effluents flowing from dairies on both projects although Gatewood was unable to show what impact effluents flowing from the dairy situated in the Mills Creek area had on this project.

   
   

3. Doctor Shireman, a professor of fishery sciences and a biologist with the University of Florida, sampled the fish population in both the channelized and non-channelized portions of the project streams for the last year. Doctor Shireman stated that the fish population was representative of the fish

   populations in lakes and streams throughout Florida and also indicated that if the county ordinance was passed and lateral inlets into the channel were controlled, the channelization project would have minimal impact on tie lower parts of the stream. Moreover,experts from the Department and the Petitioner agreed that thepotential water quality damage would be minimal at worst.

   
   

4. Section 17-4.28, F.A.C., adopted pursuant to Chapter 403, F.S., places the burden upon the Petitioner to affirmatively show and demonstrate to DER that its channelization project will not result in violations of the water quality criteria, standards, requirements and provisions of Chapter 17-3, F.A.C., over the short and long term periods. Also, Section 17-4.29 F.A.C., adopted pursuant to Chapter 253, F.S., requires the applicant to affirmatively demonstrate to the Department that, based upon a biological and hydrographic survey, the project will not interfere with the conservation of fish, marine and wildlife, or natural resources. Finally, the project must be designed so as not to violate Section 403.161, F.S., which prevents the causing of pollution, harm or injury to human health or welfare, animal, plant or aquatic life or property. In this regard, the evidence introduced at the hearing revealed that essentially all of the water quality studies and the majority of the studies associated with the aquatic system were carried out by Doctor Shireman through a cooperative agreement between the University of Florida and SCS. Doctor Shireman, as stated, analyzed the fish population in the channelized and non-channelized areas of this project and found the fish and aquatic population to be representative of similar lakes and streams in this State and, further, that there was no measurable difference in the fish population in the channelized area, an area which had been completed approximately seven years ago, and the non-channelized areas. This study encompassed a period ofapproximately one year. It was also noted that for the most part, measured data indicated that the water quality in the channel system met the criteria for Class III waters. Also, as stated earlier, the channel supported good fish populations and samplings of the stations in the channelized portions conducted by Doctor Shireman provided no basis for a finding that the constructed channels were in any manner degrading water quality despite the fact that the channels had been constructed for approximately seven years. The studies also revealed that through an examination of the benthic organisms and fish life found in all channels and receiving waters, an acceptable quality free from detrimental levels of toxic materials was prevalent.

   
   

5. The Department also expressed a concern that channelization would drastically reduce the number and size of fish due to increased sedimentation and the loss of stream bed niches and pits. The Department offered its position that dredging homogenizes the bed structure, reduces roughness and diversity and destroys diversity of the current pattern. Sampling of the subject project streams indicate that in the watershed 39 different species of fish were discovered, 30 of which were found in the channel sections. The data also revealed that there was little specie difference in the benthic organisms between channel and unchanneled portions of the watershed. There was no evidence introduced of any increased sedimentation taking place in the previously constructed channels.

   
   

6. The Department also expressed concern over clear-cutting during construction, with resulting increases in the water temperatures, wetland reduction, streamside foliage destruction and turbidity.

   
   

7. Respecting this concern, Jesse Livingston, a registered civil engineer involved in the design and implementation of the project, testified that the Mills Creek area was designed and redesigned to address and satisfy the concerns

   of the various commenting agencies and that the project was not designed to drain the swamp as the commenters feared. To the contrary, he testified that the hydrologic grade line of the channels was set two feet above the normal ground in the area and in fact the planners envisioned a design to flood the swamps to increase the wetlands. He testified that a detailed geological investigation was made of the channel by taking soil samples during field investigations to determine permeabilities and soil types to determine a safe velocity for the channel's design. Mr. Livingston testified without contradiction that the project was designed so "that the side slopes would remain essentially as planned; taking precautions to ensure that the channel bottoms do not degrade and by stabilizing the channel. In so doing he commented that the bed load would continue moving through the channel system which ultimately would fill the downstream channels". He testified that limited turbidity would occur during the process of construction but by use of proper construction techniques, the channel system would be stabilized and no significant amount of turbidity would result. He testified that pipe drops were designed and set along the channel to control the manner in which water entered the swamps and ultimately into the channel. Respecting the allegations and concerns expressed of clear-cutting and increasing water temperatures during construction, Livingston testified that the channels were designed to be constructed from one side and thereby eliminating the amount of clearing which was a sure way to control clearing and also minimize any temperature increases along the channel. This method, according to Livingston, also provides essentially the same cover to foliage due to the fact that the channelization would all occur on one side.

   
   

8. Testimony introduced also revealed that the streamside foliage had begun to fully recover within the channelized area and that the streamside foliage which would be temporarily lost during the construction phases would fully recover to vegetation within one growing season. Finally, he testified that provisions would be made to curtail turbidity within allowable limits. His testimony reveals that the bottomland hardwoods would not be disturbed due to the graded side inlet pipes which was done at the request of FG&FWFC. He concluded that the ecological change in the swamp diversity would be temporary, lasting only temporarily beyond the construction phases.

   
   

   CONCLUSIONS

   
   

9. As the Petitioner (applicant) points out, the Department's reviewers seem to have taken a textbook approach in reviewing the available data in reaching its decision of its intent to deny the permit for the Mills Creek channelization project. While there were some shortcomings in data which largely stem from the difficulty in ascertaining the impact of the effluents of the dairy in the area, the weight of evidence tends to support a conclusion, by competent and substantial evidence, that the project would not degrade the air and waters of this State. The Petitioner, through various meetings with all of the State and Federal agencies commenting on the design of this project, addressed all issues and designed the project so as to meet and satisfy the concerns of interested parties. The available data also revealed that in those areas wherein potential problems may arise in the future,the agencies are armed with sufficient authority to remedy and correct such problems. The engineers for this project designed it based on the guidance and consultations of all agencies who were interested in the ecological welfare of this area and took great pains to see that air and water quality would not be degraded. The local county officials have also given their approval to limit lateral connections by upland owners and the overall project design appears to be in keeping with the letter and spirit of Chapters 403 and 253 and Sections 17-3 and 4, Florida

   Administrative Code. For all of these reasons, I am forced to conclude that the Petitioner (applicant) has met its burden of establishing that the requested permit for the channelization project herein will not result in a degradation of air and water quality and, therefore, the permit should be issued. In keeping with the recommendations by the St. Johns River Water Management Board, I shall recommend that the permit be issued with the proviso that no lateral connections be made to the channelization project by upland owners.

   
   

   CONCLUSIONS OF LAW

   
   

10. The Division of Administrative Hearings has jurisdiction of the subject matter and the parties to this action Chapter 120.57(1), Florida Statutes.

    
    

11. The authority of the Department of Environmental Regulation is derived from Chapters 253 and 403 and Sections 17-3 and 4, Florida Administrative Code.

    
    

12. The parties were duly noticed pursuant to provisions of Chapter 120, Florida Statutes.

    
    

13. The Petitioner provided the Respondent, by competent and substantial evidence, reasonable assurances that the Mills Creek channelization project, as designed, will not degrade the air and water quality standards within the guides of Chapter 403, Florida Statutes, and Section 17-4.28, Florida Administrative Code, or that the project will cause interference with the fish, marine and wildlife or other natural resources as provided in Chapter 253, Florida Statutes, and Section 17-4.29, Florida Administrative Code.

RECOMMENDATION

Based on the foregoing findings and conclusions of law, it is hereby recommended that the Department of Environmental Regulation cause to be issued a permit authorizing the applicant herein to channelize the remaining section of the Mills Creek project as requested with the proviso that the channelization operations be stayed until the Board of County Commissioners of Nassau County pass an ordinance that provides that no direct connections of laterals, drainage ditches and/or secondary connectors be allowed within the boundaries of the flood plains as presently exist.

RECOMMENDED this 26th day of June, 1978, in Tallahassee, Florida.

JAMES E. BRADWELL, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304

(904) 488-9675

ENDNOTE

1/ Briefs were submitted by the parties which were carefully considered by me in preparation of this Recommended Order.

COPIES FURNISHED:

Arthur I. Jacobs, Esquire Post Office Drawer 1

Fernandina Beach, Florida 32034

Sheri W. Smallwood, Esquire

Department of Environmental Regulation 2600 Blairstone Road

Tallahassee, Florida 32301

Docket for Case No: 76-001920

Orders for Case No: 76-001920