STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ORANGE COUNTY, FLORIDA )

)

Petitioner, )

)

vs. ) CASE NO. 77-648

) STATE OF FLORIDA DEPARTMENT OF ) ENVIRONMENTAL REGULATION, )

)

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 June 30, 1977, in Orlando, Florida.

APPEARANCES

For Petitioner: Steven R. Bechtel

Mateer, Harbert, Bechtel and Phalin Orlando, Florida

For Respondent: Segundo J. Fernandez and

Vance W. Kidder Tallahassee, Florida

On or about June 21, 1976, Orange County ("Petitioner" hereafter) forwarded an application for a permit to work in the waters of the state to the State of Florida Department of Environmental Regulation ("Respondent" hereafter). A copy of the application was received in evidence at the final hearing as Petitioner's Exhibit 19. Through the application Petitioner was seeking a permit to construct a drainage canal or ditch between Park Lake and Lake Maitland in Orange County, Florida. The project, which is known as Lateral H-15, involves both dredging and filling activities, and the canal or ditch would follow the course of a present creek known as Maitland Branch. Subsequent to the filing of the permit application, various communications were exchanged between the parties, and the Petitioner forwarded additional information to supplement its application (Petitioner's Exhibit 20). By letter dated February 28, 1977, the Respondent gave notice of its intent to deny the permit application (Petitioner's Exhibit No. 21). Petitioner thereafter filed a Petition For Review Of And Hearing On Proposed Order Of Denial. The final hearing was scheduled by Notice dated April 20, 1977.

Petitioner called the following witnesses at the hearing: Thomas M. Hastings, the Petitioner's Director of Public Works; William Bellisle, a civil engineer employed with a private consulting engineering firm, who served as the Petitioner's consulting engineer on the proposed project; George McMahon, the city manager of the City of Maitland; and Raymond Kaleel, a biologist employed by the Petitioner's pollution control department.

The Respondent recalled George McMahon, and called the following additional witnesses: Jorge Southworth, an environmental specialist employed by the Respondent; Harry James Morgan, a field inspector employed by the Respondent; Murray Brown, a Ph.D. in chemistry employed in the Respondent's permitting division; and James L. Holbert, the head of the biology section in the Respondent's St. Johns River District Office, which is located in Orlando, Florida.

Hearing Officer's Exhibits 1 and 2, Petitioner's Exhibit 1 through 30 and Respondent's Exhibits 1 through 17 were offered into evidence at the final hearing and were received. The parties have submitted posthearing memoranda of law, and proposed recommended orders.

FINDINGS OF FACT

1. During approximately 1961, the Board of County Commissioners of Orange County adopted the Orange County Conservation and Water Control Act. This act included a comprehensive drainage plan. Orange County is divided into several natural drainage basins. The Petitioner is presently actively seeking to implement the comprehensive drainage plan in what is known as the Upper Howell Branch drainage basin. The proposed Lateral H-15 forms a part of the drainage plan in the Upper Howell Branch drainage basin. The proposed Lateral H-l5 would begin at the outfall of Park Lake, and would extend approximately 1900 feet to Lake Maitland. Lateral H-l5 would allow the controlled lowering of Park Lake, with excess water flowing into Lake Maitland. Lateral H-15 as proposed would be a structure with a concrete paved bottom. It would be 18 feet wide, and would have vertical side walls constructed of aluminum siding. A weir would be constructed at the Park Lake outfall, and a new crossover would be constructed at the point where Highway 17-92 crosses over the project. The depth of the structure would be 5 feet. At peak flows water would flow at four foot depths leaving a one foot free area. The structure has been designed to allow passage of peak flows of water using as little land area as possible. Vertical side walls have been proposed in order to limit the amount of property which the Petitioner would need to obtain in order to construct the project.

   
   

2. The Petitioner's comprehensive drainage plan is designed to ultimately prevent flooding which would result from a "25 year storm". The term "25 year storm" means that there is a 4 percent chance that such a storm would occur in any given year. The Petitioner's comprehensive plan for the Upper Howell Branch basin is depicted in an aerial photograph which was received into evidence as Petitioner's Exhibit 1. Generally, waters within the basin will flow from Lake Killarney through Lateral H-22, which is nearly completed, and from Lake Bell through the Lake Bell Lateral, which has been completed, into Park Lake. The Lake Bell Lateral and Lateral H-22 permit the controlled lowering of the water in Lake Bell and Lake Killarney into Park Lake. Lateral H-15 would permit the controlled lowering of the waters of Park Lake into Lake Maitland. Waters from Lake Maitland would then flow out of the drainage basin through Howell Creek which is now extremely swampy. Petitioner proposes ultimately to clear Howell Creek so that it can accept peak water loads from Lake Maitland.

   
   

3. The proposed Lateral H-15 would follow the channel presently followed by a naturally occurring creek bed known as the Maitland Branch. Maitland Branch is a dried up waterway during dry weather periods. When waters in Park Lake rise during rainy seasons, overflow goes through the Maitland Branch into Lake Maitland. In addition storm runoff from areas surrounding the Maitland Branch drain into Maitland Branch and then into Lake Maitland. At its most

   Westward point, adjacent to Park Lake, the Maitland Brunch is approximately 40-

   50 feet wide. A railroad crosses the branch near to the Park Lake outfall and the pipe and culvert under the railroad control the water level in the branch. The branch then extends under Highway 17-92, and into Lake Maitland. From the railroad, into Lake Maitland, Maitland Branch is confined to a narrow channel. The Maitland Branch is not a navigable water body. Lake Maitland is a navigable water body. Petitioner's proposed dredging activities would extend approximately 55 yards into Lake Maitland in order to permit the free flow of waters through the proposed Lateral H-15 into Lake Maitland.

   
   

4. Maitland Branch is dominated by a variety of emergent and aquatic vegetation. Maitland Branch presently serves a significant function in preserving the waters of Lake Maitland. The water quality of Lake Maitland is presently good. Tests taken within the lake do not reveal violations of the Respondent's water quality rules and regulations. The lake is, however, dominated by hydrilla, and does not support a diverse aquatic plant population. The water quality in Lake Park is inferior to that of Lake Maitland. Lake Park is dominated by algal growths. During periods of high water, the waters of Park Lake flow through Maitland Branch. The aquatic vegetation in Maitland Branch serves to filter the waters and to assimilate nutrients contained in the water before the water enters Lake Maitland. Approximately 27 acres of impervious surfaces adjacent to the Maitland Branch drain directly into the branch. Storm water runs across the surfaces into Maitland Branch generally without the benefit of any filtration mechanism at all. Without the aquatic vegetation present in Maitland Branch, this storm water runoff would enter Lake Maitland without being filtered, and without nutrients being assimilated by vegetation.

   
   

5. Aquatic vegetation in Maitland Branch does serve the filtration and assimilative functions outlined above. The degree of filtration and assimilation that is occurring is not subject to any finite measurement. No scientific means exists for accomplishing such a measurement. The very fact that the vegetation is flourishing, provides scientific evidence that the assimilation of nutrients is occurring. Furthermore, the large amounts of toxic substances which enter the Maitland Branch would cause a very rapid and provocative deterioration of the waters of Lake Maitland unless the runoff were filtered. The fact that the water of Lake Maitland is of fairly good quality evidences the fact that filtration and assimilation functions are occurring in Maitland Brunch.

   
   

6. The Petitioner sought to demonstrate that the aquatic, vegetation in the Maitland Branch does not serve to filter the waters, or to assimilate nutrients. Petitioner's testimony tends to show that the water quality of waters at the Park Lake outfall and at the western extremes, of the Maitland Branch are of higher quality than waters at the end of Maitland Branch closest to Lake Maitland. This evidence is not creditable. In the first place the sampling techniques used by the Petitioner's agents were inadequate. Too few samples were taken to permit the drawing of any proper scientific conclusions. The samples were not taken simultaneously and in some cases samples taken at the Park Lake outfall were taken several days prior to the taking of samples at sampling stations closer to Lake Maitland. Furthermore, samples were taken at times when vegetation in the Maitland Branch was most sparse. One group of samples was taken just subsequent to a freeze which killed all of the vegetation. Another group of samples was taken shortly after the Petitioner had removed vegetation from the Maitland Branch in accordance with a temporary permit that had been issued by the Respondent (see discussion in paragraph 9 infra) Even if the Petitioner's samples had been taken in such a way that the

   conclusion could be drawn that the water quality in Maitland Branch is worse close to Lake Maitland that it is at the Park Lake outfall, it would still be clear that the aquatic vegetation in the branch is performing its important environmental function. Runoff from adjacent impervious surfaces into Lake Maitland constitutes water of the poorest possible quality. It is thus to be expected that the water quality of the branch would be worse at the points farthest from the Park Lake outfall where more runoff water can accumulate.

   This does not however permit the conclusion that no filtration and assimilation is occurring, but rather amplifies the necessity for such functions if the water quality of Lake Maitland is to be preserved.

   
   

7. Petitioner's proposed Lateral H-15 would constitute a source of pollution for the waters of Lake Maitland. The concrete bottom of Lateral H-15 would reduce the PH level of water the branch and could result in violations of PH standards set out in the Respondent's rules and regulations. Emergent and attached aquatic vegetation could not exist in Lateral H-15. There would be no place for such vegetation to take root. The only sort of vegetation that could take hold would be water hyacinths. During peak water flows these hyacinths would be flushed out of the branch into Lake Maitland. While water hyacinths do serve to filter water that flows through them and to assimilate nutrients from the water, they are not attached, and do not serve that function as well as attached aquatic vegetation. Since water hyacinths would be washed out of the branch during periods of heavy storm runoff, when filtration and assimilation are most essential, they would not be likely to serve to maintain the water quality of Lake Maitland to the extent that the present vegetation in Maitland Branch serves this function. Lateral H-15, with the reduced ability to preserve water quality would permit water of inferior quality from Park Lake to enter Lake Maitland, and would permit storm runoff with high levels of pollutants to enter Lake Maitland.

   
   

8. The amount of injury to water quality in Lake Maitland that would result from replacing Maitland Branch with Lateral H-15 cannot be measured finitely. It is, however, clear from the evidence that injury is certain. The frequency of water quality violations, the degree of degradation of the water, and the amount of consequent harm to fish and wildlife in Lake Maitland that will result from Petitioner's proposed project are matters for speculation. It does appear that violations will occur, that the water will be degraded, and that fish and wildlife will be harmed. The testimony will clearly not support a finding that Petitioner has given reasonable assurance that water quality violations will not occur, that the quality of water will not be degraded, and that fish and wildlife will not be harmed.

   
   

9. The Respondent within recent months had issued a permit allowing the Petitioner to remove aquatic vegetation from the Maitland Branch between the railroad which crosses the branch near to the Park Lake outfall , and Highway 17-92 which crosses the branch approximately halfway between Park Lake and Lake

   Maitland. Issuance of this permit does not demonstrate that the Respondent sees no value in the aquatic vegetation of Maitland Branch. Aquatic vegetation will rapidly reestablish itself in the area, and it will be missing for only a temporary period. In addition, the Petitioner was permitted to remove vegetation from less than half of the length of Maitland Branch.

   
   

   CONCLUSIONS OF LAW

   
   

10. 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.).

11. The Respondent's jurisdiction to require that Petitioner obtain a permit in order to construct Lateral H-15 is grounded either upon dredge and fill permitting requirements set out in the Florida Land Acquisition Trust Fund Act, Section 253.123, Florida Statutes, (1975); or permitting requirements set out in the Florida Air and Water Pollution Control Act, Section 403.087, Florida Statutes (1975). Petitioner contends that the Respondent lacks the authority or jurisdiction to require permits under the provision of either statute. The Respondent's jurisdiction to issue dredge and fill permits is based upon and arises only when the dredging or filling occurs on or in the "navigable waters of the state". Section 253.123 (1), (2). Petitioner contends that since the Maitland Branch is not navigable, the Respondent has no permitting authority with respect to the proposed project. This argument is without merit. In the first place, the Petitioner does proposed to dredge approximately 55 feet into Lake Maitland, which Petitioner concedes is a navigable water body. Petitioner presented evidence that the dredging in Lake Maitland would not be necessary; however, its application does provide for such dredging, and Petitioner appears to concede that a permit would be required for at least that much of its project. The dredging and filling in the Maitland Branch would occur on lands that border on Lake Maitland. In Yonge v. Askew, 293 So.2d 395 (1st DCA Fla. 1974), an applicant for a dredge and fill permit before the Respondent's predecessor, the Board of Trustees of the Internal Improvement Trust Fund, was seeking to construct canals that would enter into a navigable river. Although the dredging and filling did not occur directly in the navigable river, the court nonetheless did not question the agency's permitting jurisdiction petitioner contends that Yonge v Askew is distinguishable a from the instant matter because the Petitioner therein was seeking a permit to construct navigable water bodies. Lateral H-15 will not be a navigable water body. This distinction does not provide a basis for limiting the Respondent's jurisdiction. The discharge of waters through Lateral H-15 will go directly into a navigable body of water. The Respondent's responsibility under Chapter 253 is in part to consider the environmental impact of proposed projects. Section 253.123(3)(a). The environmental impact of a project which will carry waters into a navigable body of water is not governed by the navigability of the project itself.

    
    

12. Section 403.087(1), Florida Statutes (1975), provides in pertinent part as follows:

    
    

    "No stationary installation which will reasonably be expected to be a source of air or water pollution shall be operated, maintained, constructed, expanded, or modified without an appropriate and currently valid permit issued by the department, unless exempted by department rule

    
    

    Petitioner contends that the proposed Lateral H-15 is not a stationary installation which will be a source of water pollution. Petitioner contends that Lateral H-15 itself will not constitute any source of pollution since it is merely a channel through which water would flow. The source of pollutants would not, Petitioner contends, be Lateral H-15, but would rather be the storm water runoff, or the overflow that would enter the project from Park Lake. This argument, while having some polemic appeal is without merit. The argument can be carried to an absurd conclusion. It appears from the evidence that one of the most profound sources of pollution is greases and oils that drip from automobiles, and accumulate on paved surfaces adjacent to the Maitland Branch and are washed into Maitland Branch during rain storms. The source of this

    pollution is the automobiles which drip oil and grease onto the parking lots. Since automobiles are not stationary installations, the Respondent's permitting authority would not encompass them, and the Respondent would be totally without power to prevent pollution of the waters of the state, and the Florida Land and Water Pollution Control Act would be a useless act. If Lateral H-15 is not source of pollution, then neither would a pipe carrying direct sewage discharge into navigable waters be a source of pollution. The pipe itself, after all, is not the source of pollution, it is merely a carrier. Respondent's theory would so restrict the ambit of the Florida Land Pollution Control Act as to render it unviable. Such a narrow interpretation is not justified. The act is a statute enacted for the public benefit, and was enacted in order to carry out a specific constitutional mandate. Florida Constitution, Article II, Section VII. A statute enacted for the public benefit should be construed liberally. City of Miami Beach v. Berns, 245 So.2d 38 (Fla. 1971). The present Maitland Branch serves to filter water of inferior quality from Park Lake, and water from upland runoff before it enters Lake Maitland. Lateral H-15 would not perform this function to the same extent. More pollutants would enter Lake Maitland after the construction of Lateral H-15 than enter Lake Maitland presently. Lateral H-

    15 would thus constitute a source of pollution for Lake Maitland.

    
    

13. The question of whether a canal or drainage ditch is a "stationary installation" such as to invoke the Respondent's permitting jurisdiction under Chapter 403 has apparently not been expressly answered by any court. In Sexton Cove Estates, Inc. v. State Pollution Control Board, 325 So.2d 468 (1 DCA F6, 1976) the Court seems to have assumed that a canal would be such an installation. The Court held that the requirements of the statute could not be imposed with respect to an application that was filed before the statute was adopted. Dissenting from the result, Judge McCord stated:

    
    

    "I agree with respondent that petitioner's canals are stationary installations under the definition of 'installation' contained in Section 403.031(8), Florida Statutes."

    
    

    The canals in Sexton Cove cannot properly be distinguished from Lateral H-15.

    
    

14. An applicant for a dredge and fill permit, and for a permit to operate a stationary installation which will reasonably be expected to be a source of water pollution has the burden of affirmatively providing reasonable assurance that the short term and long term effects of the proposed project will not cause pollution, will not result in violations of the water quality criteria, standards, requirements and provisions of the Florida Statutes and rules and regulations of the Respondent, and will not adversely affect natural resources. Rule 17-4.07(1), 17-4.28(3), Florida Administrative Code. The applicant has the further burden of affirmatively establishing that the proposed project will be in the public interest. Yonge v. Askew, supra.

    
    

15. The Petitioner has failed to provide reasonable assurance that its proposed project will not result in violations of the water quality standards set out in the Florida Statutes and in the Respondent's rules and regulations. It affirmatively appears frown the evidence that the Petitioner's proposed project would serve to degrade the water quality of Lake Maitland, and that while finite measurement is not possible, it percent, is likely that water quality violations would occur as a result of the project. The degrading of water quality is likely to have an adverse impact upon the natural resources, including the fish and wildlife of Lake Maitland.

16. The goal of the Petitioner's project, to prevent flooding of homes within the 25 year flood line, is within the public interest. Protection of the water quality of Lake Maitland is, however, also in the public interest. No evidence was offered from which it could be concluded that the cost of alternative means of preventing flooding would be prohibitive. There was testimony that alternative means would cost more money, but it was speculative, and was not specific. In addition, the Respondent has the ability to cease granting building permits within the 25 year flood line.

    
    

17. The Petitioner's application for a permit to work in the waters of the state should be denied.

RECOMMENDED ORDER

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

That the Petitioner's application for permit to work in the waters of the state be denied.

RECOMMENDED this 24th day of August, 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 24th day of August, 1977.

COPIES FURNISHED:

Joseph W. Landers Secretary

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

Tallahassee, Florida 32301

Segundo J. Fernandez, Esquire and Vance W. Kidder, Esquire

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

Tallahassee, Florida 32301

Steven R. Bechtel, Esquire Post Office Box 2854 Orlando, Florida 32802

Docket for Case No: 77-000648

Orders for Case No: 77-000648