STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SUNSET ACRES MOBILE HOME SALES, )

)

Petitioner, )

)

vs. ) CASE NO. 79-1247

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

)

Respondent. )

)

RECOMMENDATION

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 February 27, 1980, in Key West, Florida. The parties stipulated that the hearing closed March 18, 1980, the date on which the parties were granted leave to file memoranda supportive of their respective positions. Said memoranda has been received and was considered by me in preparation of this Recommended Order.

APPEARANCES

For Petitioner: David Paul Horan, Esquire

513 Whitehead Street Key West, Florida 33040

For Respondent: H. Ray Allen, Esquire and

William Deane, Esquire

Department of Environmental Regulation 2600 Blair Stone Road

Tallahassee, Florida 32301 ISSUE

At issue herein is whether or not the Respondent, Department of Environmental Regulation's notice of its intended denial of petitioner's permit application which requested an excavation through an existing perimeter dyke, was proper.

FINDINGS OF FACT

1. Based upon my observation of the witnesses and their demeanor while testifying, the arguments of counsel, posthearing memoranda and the entire record compiled herein, the following relevant facts are found.

   
   

2. On January 15, 1979, the then applicant, General United, submitted a joint application to the Department of Army Corps of Engineers and the Florida Department of Environmental Regulation for a permit to "remove a rock bulkhead approximately twenty (20) feet wide and fifty (SO) feet long to a minus five (-

   5) feet below low tide, to connect upland canals to access channels." The excavation as requested pursuant to the permit application, if approved as applied for, would require the deposit of approximately 167 cubic yards of fill on uplands owned by the applicant (DER Exhibit 1). By letter dated May 15, 1979, Respondent, Department of Environmental Regulation, gave Petitioner notice that it intended to deny Petitioner's permit application for reasons, summarily stated, that the dredging/excavation as requested in the permit application would result in a degradation of local water quality and that the project, as applied for, would result in a reduction of the capability of habitat to support a well-balanced fish and wildlife population and an impairment of the management of feasibility of fish and wildlife management resources contrary to the public interest as defined in Sections 253.123 and 403.087. Florida Statutes. Public Law 92-500 and Section 17-4.07, Florida Administrative Code. Respondent thereafter filed a request for a formal administrative hearing pursuant to Section 120.57(1), Florida Statutes.

   
   

3. The Petitioner called as adverse witnesses Messrs. R. F. Dumas, Field Agent; Donald Lawless, Chemist; and Curtis Kruer, Field Agent, all employed by the Department of Environmental Regulation. Petitioner's final witness was Dr. Earl Rich, a professor of biology and environmental consultant. Respondent called as witnesses Mike Nowicki, a Dredge and Fill Supervisor; and Messrs. Curtis Kruer and Donald Lawless.

   
   

4. As applied for, the project entails the excavation of an access channel approximately twenty (20) feet wide and fifty (50) feet long to a depth of five

   (5) feet from Petitioner's uplands to the waters of Florida Bay. The parties stipulated that the opening would enter the waters of Florida Bay, which is a Class III water body as defined by Respondent's rules and regulations (Joint Exhibit 2). In the area of Sunset Acres, there is a canal system of approximately 1,940 feet, approxirately one-half of which is occupied by mobile home construction. The canal system is isolated from Florida Bay at the present time by a boulder bulkhead with an elevation of approximately three (3) feet above mean water level (Petitioner's Exhibit 3 and testimony of Rich). The adjacent canals are all approximately fifty (50) feet wide with an average depth of approximately seventeen (17) feet.

   
   

5. There is agreement among the witnesses that the interior canal system is stratified and is very good to a depth of appraximately ten (10) feet, at which point the water quality deteriorates. At the lower levels, dissolved oxygen and specie diversity are low. Specie diversity in the upper column (distance of approximately ten (10) feet) supports approximately fifteen (15) fish species and twenty-two (22) species of macro-invertebrates . Algae growth was observed on the canal wall which denotes a continuity of plant and life support systems (testimony of Dr. Rich). Evidence reveals that the plant and fish specie diversity in the adjacent canal system was equally as diverse as that in the adjoining open waters of Florida Bay.

   
   

6. The tests conducted in the water columns reflect that the dissolved oxygen levels in the upper column had average concentrations of approximately four (4) parts per million and that dissolved oxygen levels in adjacent canals which were open to Florida Bay fell in the range of 4.3 to 4.6 parts per million, 1/ which in some instances is below Class III standards (testimony of

   R. F. Dumas). The evidence reveals that there will he no discharge from septic tanks inasmuch as there is a collection and wastewater treatment plant for Sunset Acres.

7. The testimony reveals that the proposed project is situated away from the prevailing winds and that there is little likelihood than detritus will be dumped into the canal systems by natural wind and wave action. In this regard, the evidence reveals that the tidal fluctuations in this area of Florida Bay are less than six (6) inches (testimony of Dr. Rich and Mr. Dumas). Evidence also reveals that inasmuch as the water quality in the interior canal system is strikingly similar and of the same quality as that water outside the canal systems, there is no reason to suspect that the opening of this project would degrade the water quality of the present canal systems based on the minimal tidal fluctuations in the area and the location of the project which is away from the prevalent winds. Nor were any facts introduced to support Respondent's concern for its assumption that the subject project would result in a degradation of water quality. Nor was there any showing that the proposed project, if permitted. would interfere with or otherwise hamper the propagation of fish and wildlife habitat. To the contrary. there is evidence that there is greater fish specie diversity in the canal systems than in the adjacent open waters of Florida Bay. It is likely that by permitting this project, the adjacent waters will benefit from such a rich and varied specie diversity (testimony of Dr. Rich and Petitioner's Exhibit 3).

   
   

   CONCLUSIONS OF LAW

   
   

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

   
   

9. The authority of the Respondent is derived from Chapters 253 and 403, Florida Statutes, and Rule Chapters 17-3 and 17-4, Florida Administrative Code.

   
   

10. Florida Bay, the open waters adjacent to the proposed canal system, is a Class III water body.

    
    

11. The removal of the rock bulkhead plug and the connection of the upland canal system to Florida Bay will transform the canal system into waters of the State, as defined in Section 403.031(3), Florida Statutes.

    
    

12. The connection will also transform the canal system into a Class III water body, subject to the standards and criteria enumerated in Section 17-3.09, Florida Administrative Code.

    
    

13. The Petitioner has provided the Department with reasonable assurances that the proposed activity will not cause pollution in contravention of Section 17-4.07. Florida Administrative Code.

    
    

14. The Petitioner has provided the Department reasonable assurances that the proposed project will not result in short-term or long-term violations of the water quality criteria, standards, rules and requirements as provided in Chapters 17-3 and 17-428, Florida Administrative Code.

    
    

15. The Petitioner has provided the Department reasonable assurances that the proposed project will not interfere with the conservation of fish, marine and wildlife, or other natural resources as provided in Section 17-4.29, Florida Administrative Code, and Section 253.123(d), Florida Statutes.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Petitioner's application for a permit be GRANTED.

RECOMMENDED this 11th day of April, 1980, in Tallahassee, Florida.

JAMES E. BRADWELL,

Hearing Officer

Division of Administrative Hearings

101 Collins Building Tallahassee, Florida 32301 (904) 488-9675

ENDNOTE

1/ In this regard, the evidence does not show that the low dissolved oxygen levels were a result of factors attributable to the open canal systems. It can only be assumed that the low oxygen levels resulted from natural conditions.

COPIES FURNISHED:

David Paul Horan, Esquire Jacob R. Varn, Secretary

513 Whitehead Street Department of Environmental Key West, Florida 33040 Regulation

2600 Blair Stone Road Tallahassee, Florida 32301

1. Ray Allen, Esquire and William Deane, Esquire

   Department of Environmental Regulation 2600 Blair Stone Road

   Tallahssee, Florida 32301

   =================================================================

   AGENCY FINAL ORDER

   =================================================================

   
   

   STATE OF FLORIDA

   DIVISION OF ADMINISTRATIVE HEARINGS

   
   

   SUNSET ACRES MOBILE HOME SALES,

   
   

   Petitioner,

   
   

   vs. CASE NO. 79-1247

   
   

   STATE OF FLORIDA, DEPARTMENT OF ENVIRONMENTAL REGULATION,

   
   

   Respondent.

   /

   
   

   
   

   By the Department:

   
   

   FINAL ORDER

   
   

   I.

   
   

   INTRODUCTION

   
   

   On April 11, 1980, the duly appointed Hearing Officer in the above-styled matter submitted to tile Department and all parties a Recommended Order consisting of Findings of Fact, Conclusions of Law and a Recommended Order. A copy of said Order is attached hereto as Exhibit "A".

   
   

   Pursuant to Section 17-1.68, Florida Administrative Code, and section 120.57(1)(b)8, Florida Statutes, all parties were allowed ten (10) days in which to submit exceptions to, the Hearing Officer's Recommended Order. No exceptions have been timely filed by the Petitioner, but Respondent timely filed exceptions with the Secretary of the Department of Environmental Regulation on April 24, 1980. The Recommended Order and Exceptions thereafter came before me, as head of the Department, for final agency action in this matter.

   
   

   II.

   
   

   DISCUSSION OF DOAH HEARING OFFICER'S FINDINGS OF FACT

   
   

   Section 120.57(1)(b)9, Florida Statutes, prohibits an agency from rejecting or modifying a DOAH Hearing Officer's findings of fact unless it can determine, after a review of the complete record, that the findings were not based upon competent substantial evidence or that the proceeding did not comply with the essential requirements of law.

   
   

   In determining that the Hearing Officer's findings of fact are supported by competent substantial evidence and cannot be lawfully disturbed, the Department recognizes that the Hearing Officer's bindings should be afforded considerable

   weight. The Hearing Officer is the trier of fact who is best able to evaluate the credibility of witnesses and resolve conflicting testimony. In no instance has the Hearing Officer in this case resolved disputed issues by entering a actual finding that is unsupported by evidence which a reasonable person could accept as adequate.

   
   

   III.

   
   

   DISCUSSION OF DOAH HEARING OFFICER'S CONCLUSIONS OF LAW

   
   

   Several substantial issues of law are raised in this proceeding and require addressing here.

   
   

   1. Whether Petitioner has provided the Department with reasonable assurances that the proposed activity will not cause pollution in contravention of Section

      17-4.07, Florida Administrative Code

      
      

      The Hearing Officer in the instant case found that the Petitioner had provided the Department with reasonable assurances that the proposed activity would not cause pollution in contravention of Section 17-4.07, Florida Administrative Code.

      Section 17-407(1), Florida Administrative Code, states that: "A permit may be issued to the applicant

      upon such conditions as the Department may

      direct, only if the apolicant affirmatively provides the Department with reasonable assurance based on plans, test results

      and other information, that the construction, expansion, modification, operation, or activity of the installation will not discharge, emit, or cause pollution in contra- vention of Department standards, rules or regulations.' After receipt of all required information, the Department must either issue or deny the permit within sixty (60) days." (emphasis added)

      
      

      The Hearing Officer in his findings of fact on page 3, paragraph 2, found that "There is agreement among the witnesses that the water quality of the interior canal system is stratified and is very good to the depth of approximately ten (10) feet at which point the water quality deteriorates. At the lower levels of the interior canal system dissolved oxygen and specie diversity are very low (emphasis added)," see Exhibit "A". Also the Hearing Officer found in his findings of fact on page 4, paragraph 1, "The test conducted in the water columns of the canal system reflect that the dissolved oxygen levels in the upper columns had average concentra- tions of approximately

      4 parts per million..., see Exhibit "A". Section 17-3.09, Florida Administrative Code, sets the state standards for dissolved oxygen, and specifically requires that "the concentration in all surface waters shall not average Less than 5 mg/1 in a 24-hour period and never less than 4 mg/1." Thus, the Hearing Officer's findings of fact show that the canal system at the present time is violating State standards as set forth In Section 17-3.09, Florida

      Administrative Code. Thereby applying the Hearing Officer's findings of fact to Section 17-4.07, Florida Administrative Code, the only conclusion that can be reached is that the Petitioner has not provided the Department with reasonable assurances that the proposed activity will not cause pollution in contravention of Section 17-4.07, Florida Administrative Code.

      
      

   2. Whether the Petitioner has provided the Department reasonable assurances that the proposed project will not result in short term or long term violations of water quality criteria, standards, rules and requirements as provided in Chapter 17-3 and Chapter 17-4.28, Florida Administrative Code.

Section 17-3.09(3), Florida Administrative Code, states in part, that: "dissolved oxygen - the concentration in

all surface waters shall not average

less than 5 mg/l in a 24-hour period and never less than 4 mg/1. Normal daily and seasonal fluctuations above these levels shall be maintained.

Dissolved oxygen concentrations in estuaries and tidal tributaries

shall not be less than 4.0 mg/l except in naturally distrophic waters. In those cases where background information indi- cates prior existence under unpolluted conditions of lower values than required above lower limits may be utilized after approval by the regulatory authority (emphasis added)

Section 17-4.28(3), Florida Administrative Code, states that: "The applicant for a dredge and/or fill

permit or a federal certification for a dredging and/or filling activity shall affirmatively provide reasonable assurance 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, requirements and provisions of Chapter 17-3, Florida Administrative Code.

Based upon the Hearing Officer's own findings of fact, see paragraph A above, the canal system at the present time is violating State standards as set forth in Section 17-3.09, Florida Administrative Code. Nothing in the Recommended Order Indicates that the Petitioner has sought approval for lower dissolved oxygen limits as provided in Section 17-3.09, Florida Administrative Code, nor was there any finding that the waters in the project area were naturally distrophic. By applying the Hearing Officer's own findings of fact to the applicable water quality criteria, standards and rules and requirements of the Department, the Hearing Officer erroneously concluded that the Petitioner has provided the Department with reasonable assurances that the proposed project

will not result in short or long term violations of water quality criteria, standards and rules and requirements as provided in Chapter 17-3 and Chapter 17- 4.28, Florida Administrative Code.

IV.

RULINGS ON EXCEPTIONS TO RECOMMENDED ORDER

The following rulings on the Respondent's Exceptions to the Recornrnded Order are entered in accordance with Stuckeys of Eastman, Georgia v. Department of Transportation, 340 So.2d 119 (Fla. 1st DCA 1976)

Conclusion of Law number 6 as contained in the Hearing Officer's Recommended Order is hereby rejected as not in accord with the Hearing Officer's findings of fact nor in accord with the applicable provisions of the Florida Administrative Code.

Conclusion of Law number 7 as contained in the Hearing Officer's Recommended Order is hereby rejected as not in accord with she Hearing Officer's findings of fact nor in accord with the applicable provisions of the Florida Administrative Code.

ORDER

WHEREFORE, upon consideration of the DOAH Recommended Order dated April 11, 1980, submitted in this cause, together with the record presented and all subsequent exceptions, and for the reasons above given it is hereby

ORDERED that:

1. The Findings of Fact contained in the Hearing Officer's Recommended Order (Exhibit A) be, and hereby are, adopted and approved in accordance with paragraph II above;

   
   

2. To the extent any Conclusion of Law contained in the Hearing Officer's Recommended Order (Exhibit A) conflicts with, or is inconsistent with, paragraph III above, each is hereby expressly rejected, and so modified. All remaining Conclusions of Law entered by the Hearing Officer be, and hereby are, adopted and approved.

   
   

3. The exceptions filed to the Hearing Officer's Recommended Order (Exhibit A) be, and hereby are, disposed of in accordance with paragraph IV above;

   
   

4. The Recommendation of the Hearing Officer contained in the Recommended Order (Exhibit A) be, and hereby is rejected.

Accordingly, Sunset Acres Mobile Home Sales, permit for its dredging project is hereby DENIED.

DONE AND ORDERED this 27 day of May 1980, in Tallahassee, Florida.

STATE OF FLORIDA DEPARTMENT OF ENVIROENTAL REGULATION

JACOB D. VARN

Secretary

Twin Towers Office Building 2600 Blair Stone Road Tallahasse, Florida 32301

CERTIFICATE, OF SERVTCE

I HEREBY CERTIFY that a true and correct copy of the foregoing has been furnished by US Mail to DAVID PAUL HORAN, ESQUIRE, 513 Whitehead Street, Key West Florida 33040; H. RAY ALLEN, ESQUIRE, Assistant General Counsel, Department of Environmental Regulation, 2600 Blair Stone Road, Tallahassee, Florida 32301; and, JAMES E. BRADWELL, HEARING OFFICER, Division of Administrative Hearings, 101 Collins Building, Tallahassee, Florida 32301, this day of May, 1980.

TERRY COLE

General Counsel Department of Enviromental Regulation

2600 Blair Stone Road

Twin Towers Office Building Tallahassee, Florida 32301

(904) 488-9730

Docket for Case No: 79-001247

Orders for Case No: 79-001247