STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ROBERT KORNEGAY, )

)

Petitioner, )

)

vs. ) CASE NO. 77-1605

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

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, an administrative hearing was held before Diane D. Tremor, Hearing Officer with the Division of Administrative Hearings, on May 18, 1981, in the Oakland Building, Tallahassee, Florida. The issue for determination at the hearing was whether petitioner Robert Kornegay is entitled to an after-the-fact permit for a fill and culvert project constructed in Wakulla County in 1976.

APPEARANCES

For Petitioner: Robert J. Angerer

Post Office Box 10468 Tallahassee, Florida 32302

For Respondent: Richard P. Lee

Assistant General Counsel Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32301

INTRODUCTION

This proceeding commenced in September of 1977 with petitioner's petition for an administrative hearing challenging the respondent's intent to deny the petitioner's after-the-fact permit application. A hearing was originally scheduled for December 7, 1977, but was continued due to settlement negotiations and pending, related litigation.

At the hearing which occurred on May 18, 1981, the petitioner presented the testimony of three witnesses -- Jeremy Craft, called as an adverse witness; John DuBose, accepted as an expert witness in the areas of land surveying, water elevations and consideration of dredge and fill applications; and the applicant Robert Kornegay. Received into evidence were petitioner's Exhibits 1 through 9. Respondent presented the testimony of Landon Ross, accepted as an expert witness in the areas of water quality, environmental biology and the impacts of dredge and fill projects; Pam Spurling, accepted as an expert witness in the areas of coastal hydrodynamics and hydraulics and hydrographic engineering; Al Poppell, accepted as an expert in the fields of property lines and state ownership of

land determinations; and Jeremy Craft, accepted as an expert in the fields of biology, water quality and the impacts of dredge and fill projects. The respondent's Exhibits A and B were received into evidence.

Subsequent to the hearing, both parties submitted proposed findings of fact, proposed conclusions of law and proposed recommended orders. To the extent that the parties' proposed findings of fact are not included in this Recommended Order, they are rejected as being either unsupported by the record, irrelevant to the issues presented for determination, or as constituting conclusions of law as opposed to findings of fact.

FINDINGS OF FACT

Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found:

1. In March and April of 1976, the petitioner Robert Kornegay placed fill and a culvert across an existing dead-end canal in Oyster Bay Estates, Wakulla County, in order to gain roadway access to other property owned by him. The project involved the placement of approximately fifty feet of fill across an existing upland artificial canal to be used as an access road, and the insertion of a forty-two inch in diameter concrete pipe through the fill. The culvert was placed below or waterward of the mean high water line in an artificially excavated navigable canal near Oyster Bay Estates in Wakulla County, Florida. The canal is approximately one mile in length and contains vegetation which is indicative of regular and periodic inundation. The canal systems in that area lead to the Apalachee Bay, which is a Class II body of water.

   
   

2. Concerned that a possible permit and water quality violation was occurring, the respondent's field personnel conducted an on-site investigation of the project in August or September of 1976. It was recommended that certain action be taken and that the petitioner file an application for an after-the- fact permit.

   
   

3. Petitioner did file an after-the-fact permit application in March of 1977, with revised plan drawings in May of 1977. A permit application appraisal was conducted by the respondent's environmental specialist in March of 1977. It was noted in his appraisal that poor quality water is frequently created in

   dead-end canal systems, the most common violations of standards being low dissolved oxygen levels and increased biochemical oxygen demand levels caused by lack of adequate flushing. It was found that the proposed crossing and culvert would greatly reduce the flushing capability of the entire canal system. This would result in violations of standards regulating levels of dissolved oxygen and biochemical oxygen demand and would also diminish the value of the marsh grasses north of the fill. For these reasons, the field inspector concluded that the project would have a significant, adverse impact on the biological resources and the water quality of Apalachee Bay and the existing canal system, and that the permit application should be denied.

   
   

4. Various alternatives or modifications to the project were recommended to the petitioner by the respondent's personnel. Having failed to receive a revised permit application, the respondent issued its letter of intent to deny the after-the-fact permit in August of 1977. This letter informed the petitioner with specificity of the reasons why the project was expected to degrade local water quality and listed the specific water quality standards expected to be violated.

5. At the hearing, the petitioner presented dissolved oxygen data taken from sampling near the culvert and in the Bay. This data was highly unreliable due to an inappropriate sampling methodology, possible machine and operating errors, lack of evidence concerning the calibration of equipment and other quality control data and lack of specificity with regard to sampling locations and conditions. Petitioner did testify that he had had no personal complaints about the project in the five years of its existence. Petitioner presented no other competent evidence to demonstrate that the project would comply with applicable water quality and environmental standards, statutes and regulations.

   
   

6. The respondent did receive adverse comments concerning the project from other state and federal regulatory agencies.

   
   

7. In a tidal creek or an artificial canal, a decrease in tidal flushing adversely affects water quality over a period of time. A decrease in water motion affects water chemistry by causing particles to settle to a soft organic bottom, eventually suffocating organisms. A reduction in flushing may also have an adverse effect upon nutrient exports which form the basis of the aquatic food web.

   
   

8. Indications of a reduction in flushing caused by the subject fill and culvert project have been observed on site by the respondent's environmental specialists. These include indicia of scouring, increased turbulence and eddying, shoaling and creation of a head difference behind the fill. The high flow velocities in the pipe result in scouring, which creates a harsh environment and limits the possibility of plant and animal growth in the vicinity. Such hydrodynamic effects indicate that natural conditions have changed as a result of the culvert and fill and that the project could reasonably be expected to result in an alteration of the natural flow of water and a harmful increase in erosion and stagnant areas of water.

   
   

   CONCLUSIONS OF LAW

   
   

9. The petitioner's project is located below the mean high water line in navigable waters of the State and is placed in an excavated water body directly connected to waters of the State. The Department of Environmental Regulation is responsible for the regulation of the filling of submerged lands within the navigable waters of the State whether those lands are publicly or privately owned, and for the regulation of stationary installations which may be a source of pollution to waters of the State. Therefore, the respondent has jurisdiction over this project pursuant to Chapters 253 and 403, Florida Statutes, and the applicable rules and regulations promulgated pursuant to said Chapters, specifically, Chapters 17-3 and 17-4, Florida Administrative Code. (See In the Matter of: petition for Declaratory Statement of Arthur M. Dehon, Sr., filed April 7, 1981, DER Case No. , and cases cited therein.)

   
   

10. Having jurisdiction over the subject project, the petitioner is required to obtain a permit from the respondent. In order to be entitled to a permit, an applicant must affirmatively provide reasonable assurance to the respondent that the short-term and long-term effects of the activity will not result in violations of water quality criteria and standards. Rule 17-4.28(3), Florida Administrative Code. By failing to affirmatively provide the reasonable assurances required, the petitioner herein has not met his burden of proof.

    
    

11. Petitioner has been on notice as to the respondent's reasons why the project as applied for was not considered permittable. These reasons were listed with specificity in the respondent's letter of intent to deny and the

    respondent adequately demonstrated by evidence adduced at the hearing that it could reasonably be expected that the project would degrade the water quality of the immediate and surrounding waters and be harmful to fish, marine, wildlife and other natural resources. The testimony presented by the respondent's witnesses regarding the appearance of scouring, increased turbulence and eddying, shoaling and the head difference in the immediate vicinity of the fill and culvert supports this conclusion.

    
    

12. The only evidence adduced by the petitioner in an attempt to demonstrate that the project would not he contrary to the public interest and would not cause pollution was the dissolved oxygen sampling data which were found to be totally unreliable. No other evidence of a positive nature was submitted by the petitioner.

    
    

13. The petitioner having failed to affirmatively provide the reasonable assurances necessary to obtain a permit for filling or the construction of a stationary installation, his application for a permit should be denied.

RECOMMENDATION

Based upon the findings of fact and conclusions of law recited above, it is RECOMMENDED that the petitioner's application for an after-the-fact permit be DENIED.

Respectfully submitted and entered this 8th day of July, 1981, in Tallahassee, Florida.

DIANE D. TREMOR, Hearing Officer Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32301

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 8th day of July, 1981.

COPIES FURNISHED:

Robert J. Angerer Post Office Box 10468

Tallahassee, Florida 32302

Richard P. Lee

Assistant General Counsel Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32301

Victoria Tschinkel Secretary, Department of

Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32301

Docket for Case No: 77-001605

Orders for Case No: 77-001605