STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

FLORIDA ATLANTIC DEVELOPMENT ) CORPORATION, )

)

Petitioner, )

)

vs. ) CASE NO. 78-175

) STATE OF FLORIDA DEPARTMENT OF ) ENVIRONMENTAL REGULATION, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings by its duly designated Hearing Officer, K. N. Ayers, held a public hearing in the above styled case on February 27 and April 5, 1979, at Gainesville and Tallahassee, Florida, respectively.

APPEARANCES

For Petitioner: William E. Falck, Esquire

2600 Gulf Life Tower Jacksonville, Florida 32207

and

Vassar B. Carlton, Esquire

203 West College Avenue Tallahassee, Florida 32301

For Respondent: Silvia M. Alderman, Esquire

Department of Environmental Regulation 2600 Blair Stone Road

Tallahassee, Florida 32301

By letter dated December 20, 1977, DER, Respondent, notified Florida Atlantic Development Corp., Petitioner, of its intent to deny Petitioner's application to remove two plugs from existing canals and to dredge an adjoining canal in order to connect the canals to the St. Johns River. As grounds for this denial, Respondent advised that the opening of these canals to the St.

Johns River would cause serious environmental degradation and adversely affect the water quality of the St. Johns River. Exception to this letter of intent to deny application led to the instant hearing.

At the hearing three witnesses were called by Petitioner, five witnesses were called by Respondent, and nineteen exhibits were admitted into evidence.

FINDINGS OF FACT

1. Petitioner represents the owner of the property here involved, St. John's Riverside Estates, and was authorized by the owner to prosecute this appeal (Exhibit 19).

   
   

2. Some years ago, circa 1960, the owner of the property dredged canals in each of the two parcels here involved, but the plug between the canals and the St. Johns River was not removed. Petitioner now proposes to remove these plugs and maintenance dredge a channel from the location of the removed plug to the St. Johns River. Spoil from the maintenance dredging will be deposited on lands owned by Petitioner.

   
   

3. The existing canals are typical dead-end canals which are stagnant at present. By removing the plugs and opening the canals to the St. Johns River, Petitioner will improve the water quality of these canals.

   
   

4. Developing the property along the canals as residential homesites will result in additional nutrients and pollutants entering the canals from surface water runoff. Petitioner proposes to use surface water runoff as one method of flushing the canals. Other flushing action would come from tidal flow in the St. Johns River. Although there was some conflict in the testimony regarding the propriety of using the rainfall from a twenty-five year storm event in lieu of of a one-year storm event to calculate the flushing action of the canals by rainfall, use of surface water to flush the canal appears to violate the provisions of Chapter 403, Florida Statutes, respecting water quality. As a condition to the development of the property, Respondent could require Petitioner to hold the surface water runoff in retention ponds to reduce the entry of pollutants into the river. If this was done, percolation and evaporation would further create a substantial reduction in flushing from this source.

   
   

5. The St. Johns River is a Class III water body of the state.

   
   

6. The water quality of the canals here under consideration are below the state water quality standards with respect to dissolved oxygen levels even using the samples taken during the winter months when dissolved oxygen levels are high. (Exhibits 1, 2 and 3). Generally, dissolved oxygen levels are lower at the bottom of such canals than at the surface. If the samples taken at the surface and bottom during the winter months are averaged for dissolved oxygen content, the result will be above the state minimum water quality standards. However, the dissolved oxygen of samples taken from the canals on May 5 and October 4, 1978, are predominately below the level of 5 mg/l prescribed as the minimum state standard.

   
   

7. Removing the plugs would not result in satisfactory flushing of these canals by tidal action. Under the best assumed conditions, it would require 18 tidal cycles or 9 bays to flush 90 percent of the water from these canals by tidal action. An acceptable flushing rate is 2 to 3 days.

   
   

8. These canals contain water hyacinths and grasses which increase the biochemical oxygen demand (BOD) which reduces the dissolved oxygen level. Not only do these vegetations reduce photosynthesis by shading the water from sunlight, but also when they die and fall to the bottom, they create a high BOD.

   
   

9. Considerable evidence was presented depicting the area, the flora and fauna of the area and the present condition of the water quality of these

   canals. No evidence was presented to the effect that removing the plugs and allowing interchange between the low quality waters of the canals and the higher quality waters of the St. Johns River would not degrade the water quality of the St. Johns River.

   
   

10. Also, no evidence was presented that the residential development of the area as proposed would not increase the coliform count, detergent level, or heavy metals content of the waters of the canals which would further cause a degradation of the river water if the plugs are removed and the waters of the river and canals are interchanged.

    
    

    CONCLUSIONS OF LAW

    
    

11. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter of these proceedings.

12. Section 403.088, Florida Statutes, provides in pertinent part: 3(c) If the department finds that the pro-

    posed discharge will reduce the quality of

    the receiving waters below the classification established for them, it shall deny the appli- cation and refuse to issue the permit. If the department finds that the proposed dis- charge will not reduce the quality of the receiving waters below the classifications established for them, it may issue an opera- tion permit if it finds such degradation is

    necessary or desirable under federal standards and under circumstances which are clearly in the public interest.

    
    

13. Here no evidence was presented that the discharge from the canals would reduce the water quality of the St. Johns River below the classification established for it; nor was any evidence presented that such discharge was in the public interest.

    
    

14. Petitioner here seeks a dredge and fill permit to remove the plugs and provide access from the canals to the St. Johns River.

    
    

15. Rule 17-4.28, Florida Administrative Code, provides in pertinent part:

    
    

    (3) The applicant for a degree [sic] and or fill permit . . . shall affirmatively provide reasonable assurances to the department that the short term and long term effects of the activity will not result in violations of the water quality criteria, standards, require- ments and provisions of Chapter 17-3, Florida Administrative Code.

    
    

16. Petitioner has not only failed to provide the assurances required by the above quoted rule, but also the preponderance of the evidence was that providing access to the waters of the St. Johns River from these canals would result in a degradation of the waters of the St. Johns River.

17. From the foregoing it is concluded that granting the application to remove the plugs and dredge the necessary access arid maintenance canals would adversely affect the water quality of the St. Johns River. It is therefore

RECOMMENDED that the application of Florida Atlantic Development Corporation to remove by dredging the land plugs separating the canals on its property from the St. Johns River be denied.

Entered this 11th day of April, 1979, in Tallahassee, Florida.

K. N. AYERS Hearing Officer

Division of Administrative Hearings

530 Carlton Building Tallahassee, Florida 32304 (904) 488-9675

COPIES FURNISHED:

William E. Falck, Esquire 2600 Gulf Life Tower Jacksonville, Florida 32207

Vassar B. Carlton, Esquire

203 West College Avenue Tallahassee, Florida 32301

Silvia M. Alderman, Esquire Department of Environmental Regulation

2600 Blair Stone Road Tallahassee, Florida 32301

Docket for Case No: 78-000175

Orders for Case No: 78-000175