STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
CNC ENTERPRISES, INC., )
)
Petitioner, )
)
vs. ) CASE NO. 80-549
) STATE OF FLORIDA, DEPARTMENT ) OF ENVIRONMENTAL REGULATION, )
)
Respondent, )
and )
)
ELIZABETH GRUNOR, et al., )
)
Intervenors. )
)
RECOMMENDED ORDER
Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, Sharyn L. Smith, held a formal hearing in this case on July 1 and 2, and October 22 and 23, 1981, in New Port Richey, Pasco County, Florida. The following appearances were entered:
APPEARANCES
For Petitioner: Harvey V. Delzer, Esquire
DELZER EDWARDS COULTER & PARKER, P.A.
Post Office Box 279
Port Richey, Florida 33568
For Respondent: David M. Levin, Esquire
William W. Deane, Esquire
Department of Environmental Regulation 2600 Blair Stone Road
Tallahassee, Florida 32301
For Intervenors: John K. Renke II, Esquire
204 Ridge Road
Port Richey, Florida 33568
The issue involved in this case is whether the Petitioner CNC Enterprises, Inc., ("CNC") or ("Applicant") is entitled to a permit authorizing the removal of two plugs connecting artificially created canals in Pasco County, Florida, to Double Hammock Creek and the Gulf of Mexico.
Clifford Wendell, Drs. G.M. & P.M. Dooris, and Vincent Conrad testified on behalf of the Applicant. Petitioner's Exhibits 1-6 were offered and admitted into evidence. Donald Moore, Mark Latch, William Kutash and Pamela Sperling testified for the Department. Respondent's Exhibits 1-22 were offered and all were admitted except Exhibits 3, 5, 20, 21 and 22. The Intervenors presented
the testimony of Kenneth Kranicke, Florence Tomblin, Ronald Richmond, Eugene Osborne, Dave Lawrence, Steven Synchak and Charles Bonello. Intervenors' Exhibits 1-11 were offered and admitted into evidence.
Proposed Recommended Orders were filed by the parties. Those findings not incorporated in this Recommended Order were not considered relevant to the issues, were not supported by competent and substantial evidence or were considered immaterial to the results reached.
FINDINGS OF FACT
By joint application to the Respondent Department of Environmental Regulation ("Department") and the Department of the Army, dated February 7, 1979, American Engineering, Inc., as authorized agent for the Petitioner CNC Enterprises, Inc., sought the issuance of a permit to excavate two plugs in an artificial canal system which if removed would connect the canal system to Double Hammock Creek and the Gulf of Mexico.
On March 8, 1979, a completeness summary was sent to CNC in care of Clifford Wendell, President of American Engineering, Inc., advising him that the application was incomplete and requiring additional information including aerial photographs, cubic yardage figures for excavation, an additional plan view and vicinity map, a cross-section drawing, a hydrographic survey and reasonable assurances that Rule 17-4.28(3), Florida Administrative Code, would not be violated. The Applicant was also informed that the project was subject to Chapters 253 and 403, Florida Statutes.
Following the submission of the additional information, a field appraisal of the site was conducted by DER staff on August 16, 1979. On October 1, 1979, the Department received a letter from Wendell indicating that additional water quality and hydrographic test information had been collected by Conservation Consultants, Inc., a private environmental consulting firm employed by CNC for this project.
On November 5, 1979, the Department notified the Applicant's agent of its intent to deny the requested permit. The Department's letter of intent cited as grounds for denial the creation of stagnant areas of water, interference with the conservation of fish, marine life, wildlife and other natural resources, reduction in the capability of habitat to support a well balanced fish and wildlife population and impairment of the management or feasibility of fish and wildlife resources. The intent to deny does not list the absence of a hydrographic survey as a ground for the denial of the application.
An informal meeting was held in Tallahassee, Florida, on January 30, 1980. At the meeting it was agreed that Vince Conrad, President of CNC, would be provided a list of consultants by the Department who could provide additional water quality data. A list of consultants was provided by the Department on February 4, 1980.
On April 25, 1980, a letter from Wendell was received by the Department which contained a report dated April 21, 1980, prepared and submitted by Drs.
& P.M. Dooris and entitled, "An Evaluation of Selected Conditions in the Westport Subdivision Canal System and in Double Hammock Creek, Pasco County, Florida." The report presented certain water quality and physical measurements but did not purport to be a hydrographic survey. The Drs. Dooris were hired by Wendell, as consultants on this project and had been recommended to him by the
former Secretary of the Department during an informal meeting in Tampa on this project.
The History And Physical Characteristics Of The Artificially Created Canal System
The artificial canal system in question was dredged in the early 1960's. It consists of a series of six north/south finger canals connected by a main east/west connector canal to Double Hammock Creek. The Intervenors own homes or property on the finger canals in a subdivision known as Westport Homes, Pasco County, Florida.
The plugs or dikes are located at the mouth of canal number 3 (the isolated finger canal) and in the approximate center of the long connecting canal as identified in Petitioner's Exhibit 1. The portion of the long connecting canal west of the plug is navigable and flows directly into Double Hammock Creek, a natural saline body of water which connects directly into the Gulf of Mexico. The main canal east of the plug is perpendicular to and connects directly with three north/south finger canals.
Construction on the canals was initiated in the early 1960's by Henry Dingus, the owner of the property prior to CNC. When the Petitioner purchased the property in 1972, the portion of the long connecting canal west of the plug, three finger canals and a portion of the isolated canal had been constructed.
In 1972, the Petitioner widened and deepened the isolated finger canal. To accomplish this, the Petitioner totally plugged the connection to the main canal, which had been partially opened via a small drainage system, and pumped water from the isolated canal into the main canal. The Petitioner also constructed the portion of the canal east of the plug and the three finger canals connecting into the east/west canal.
The canals east of plug are connected to Double Hammock Creek and the Gulf of Mexico via a mosquito creek or canal. This creek, which is approximately 15 feet wide and 2-3 feet deep, flows through a salt marsh to Double Hammock Creek. It is tidal and produces a range of approximately 1.5 feet in the main canal.
With the exception of the isolated finger canal, the system is not actually closed since waters east and west of the plug in the main canal are tidal and connect to waters of the state.
The Department's predecessor agency, the Trustees of the Internal Improvement Trust Fund, first became aware of this project in 1973 when the site was inspected by Richard Clutter of the Trustees' staff. Clutter informed Conrad that permits would be needed for work not done in upland areas. At that time no work was being done below the mean high water line and no evidence of dredging to connect the old canals to Double Hammock Creek was present. The, Trustees considered these canals to be upland canals, because it was the Trustee's policy at that time not to extend the mean high water line up such canals. At no time prior to 1975 was Conrad either directed to cease construction or told that a connection to the mosquito canal could not be made. He was repeatedly informed, however, that a permit would be required if any connection to state waters was contemplated.
In June of 1976, Department inspectors visited the site and discovered that one of the plugs had been breached. Conrad was notified on July 9, 1976,
that the breach was a violation of state law and the rules of the Department. Approximately one year later, the Department again notified Conrad that the plug separating the main canal had been breached. Conrad informed the Department that due to the actions of neighbors who tampered with the structure, he had expended personal funds to restore the dike several times.
The Department was apparently unaware until sometime in 1976 that the canal system east of the plug connected to navigable state waters via the mosquito canal. In 1975, the Department did not attempt to halt construction of the canal system since it was relying on its erroneous assumption that the system was "self-contained."
Since there is a tidal exchange of waters entering the system on both sides of the plug in the main canal, Petitioner and Intervenors are attempting to connect two existing water bodies which are presently connected directly and indirectly to Double Hammock Creek and the Gulf of Mexico.
The Dooris Report And Dissolved Oxygen
At the final hearing, the Petitioner presented the expert testimony of Professor Patricia Dooris, Ph.D. and her husband George Dooris, Ph.D., regarding a study they completed on the removal of the plug in the main connecting canal. In the Dooris Report, they defined the problem involved in this proceeding as follows:
It is believed by some that the water in the canal system east of the eastern dike is Unacceptable for discharge to
Class III waters. The problem, then, is to assess the current condition in the canal system and to determine whether dike removal would be a beneficial or detrimen- tal influence upon the remaining natural environment in the area. (Petitioner's Exhibit 6, at 2-3)
The data contained in the Dooris Report and the testimony of the Doorises establish the following conclusions entitled "Expected Consequences of Dike Removal":
THOSE AFFECTING THE CANAL SYSTEM
Dike removal will enhance the already existing connection between the eastern canal system and Double Hammock Creek. Water from the Creek will have direct access to the entire canal system and
will bring about a more uniform distri- bution of dissolved oxygen in the canals, particularly at low tide.
Water levels in the eastern canal system will fluctuate normally, encouraging the waterward migration of marginal vegetation
on the north bank of the main canal. Additional vegetation will stabilize canal banks and provide habitat for fish and in- vertebrates. The value of allowing near- normal water level fluctuations in any
water cannot be over emphasized. The long term stabilization of water levels has proven to result in a degradation of
the resource, and it should be avoided.
THOSE AFFECTING DOUBLE HAMMOCK CREEK
A connection already exists between the eastern half of the canal system and
Double Hammock Creek, and complete dike removal would only augment the connection.
Water quality in the canal is acceptable in terms of BOD, nitrate-nitrogen, tur- bidity, chlorophyll a or o-phosphate as reported both by the Department and by a private consulting firm in previous studies. Therefore, dike removal would not add un- usual quantities of undesirable substances
to water in the Creek.
While low DO concentrations may have been recorded in the past, many factors, in-
cluding the presence of the dike itself, contribute to the condition. Several factors are of natural origin, such as temperature, wind action and can be ex- pected to act on completely natural systems as well. The conclusion to be drawn is that, as in any water body in Florida,
one can expect wide variability in DO con- centrations on a seasonal and daily basis. Concentrations below Class III criteria do occur in waters ordinarily considered of good quality. There is a strong possibility that low saline/low DO ground waters enter the canal system and at times may contri- bute to oxygen depressions.
The overriding difference between the canal system east and west of the plug is the magnitude of their connection to Double Hammock Creek. All of the differences be- tween these systems are related to the de- gree of tidal exchange in the two systems.
Therefore, the major impediment to flow in the main canal, the earth dike, is itself a large part, if not the chief part, of any problem in the eastern canal system. (Petitioner's Exhibit 6, at 12-13).
The Dooris Report and the Doctors' expert testimony demonstrated that the dikes should be removed for the following reasons:
The Intent to Deny the permit by the State was on the basis that water behind the dikes should not be allowed to enter State waters. This rationale is groundless in that a connection already exists by way of the mosquito control canal running into Double Hammock Creek. While flow of water
may be limited by the size and elevation of the control canal, there is no barrier to movement of wildlife.
There is little difference in dissolved oxygen concentration in the water on both sides of the dike.
There are low dissolved oxygen con- centrations in Double Hammock Creek.
Sediment depths were extremely variable on both sides of the dike, with greatest accumulation on the west portion of the
dike which is connected to Double Hammock Creek.
The dike itself is a major contributor to any problem on the eastern canal sys-
tem as it acts as an impediment to flow circulation. (Petitioner's Exhibit 6)
An extensive investigation and review of environmental conditions in Double Hammock Creek prepared by Jones, Edmunds and Associates for the Respondent and presented to the Pasco County Commission on March 15, 1981, confirms the Dooris' conclusion that dissolved oxygen concentrations in Double Hammock Creek naturally fluctuate above and below the standards for Class III waters. According to the Jones Study, dissolved oxygen concentrations in the Gulf of Mexico, Double Hammock Creek and the artificial canal system measured during November and December, 1980, did not differ significantly and many of the readings noted in the Jones Study fluctuate above and below state standards during different times of the year. The artificial canal station identified as WPI in the Study fared as well as some sampling stations located in areas closer to the Gulf.
With respect to the isolated finger canal, each test conducted by the Department and the Petitioner indicated that the dissolved oxygen in that canal exceeded state standards and readings of dissolved oxygen in other parts of the canal system and dissolved oxygen levels in Double Hammock Creek. 1/
The Department sampled the eastern point of the canal system in 1979. While it took samples of mid-depth and bottom samples in the east section, the Department did not take corresponding samples in the western section of the system or Double Hammock Creek. The samples taken were in a "worst case" situation in early morning when dissolved oxygen levels are often lowest. In 1976, however, the Department took surface, mid-range and bottom-depth samples in both sections of the system and all exceeded state standards except for one reading taken in Double Hammock Creek.
Dissolved oxygen samples taken in 1979 indicated that the surface readings of dissolved oxygen in the eastern end of the main canal were higher than the surface readings taken in Double Hammock Creek. No mid-depth or bottom-depth comparisons were made of dissolved oxygen because no mid- or bottom-depth values were obtained in the western portion of the canal system or Double Hammock Creek. Thus, no comparable comparison can be made of dissolved oxygen levels on each side of the main plug.
Evidence Relating To The Department's Standards For Bethnic Oxygen Demand,
Oil And Greases
In addition to dissolved oxygen, the Dooris Report also sampled sediment in the canals. It was determined that the sediment was neither flocculent nor easily disturbed. Distribution was patchy and there was no substantial bethnic oxygen demand (BOD) exerted as far down as four-five feet in the canal. Higher BOD readings would be expected at that depth if highly organic sedimentary material were in the water at or near the bottom of the canals.
As established by the unrebutted testimony of Professor Dooris, the BOD levels in the canal system state standards.
During her sampling of the canal system, no oils, greases or other deleterious substances were observed on the waters. This was corroborated by the Intervenors who testified that they had never seen any oil or grease on the surface and Bill Kutash who characterized the sheen which he observed on the surface water as "insignificant." Although Dr. Dooris noted that at some of the sampling stations a smell of hydrogen-sulfide was present when the canal bottom was disturbed by a probe, this condition is not particularly unusual in a natural water body and indicates low levels of oxygen at the bottom of the system. The Department did not take any quantitative measures of dissolved or emulsified oils or greases in the canals or Double Hammock Creek. Likewise, no one testifying on behalf of the Respondent stated that there was such visible or undissolved oil on the waters so as to cause "taste or odor or otherwise interfere with the beneficial use of the water."
The Department did not present any evidence that the quantitative levels for lead, phosphate, silver, phosphorous, or any other chemical listed in Rule 17-3.121, Florida Administrative Code, was not being met in the canal system. Similarly, no evidence was presented to show that the waters in the system are subject to any contaminants, odors, color or other condition in such a degree as to create a nuisance.
Evidence Relating To The Department Standards For Fish. Wildlife and Lower Level Invertebrates
The Intervenors, who have lived on the canal for a number of years and observed the canal system and surrounding areas, testified that a substantial diversity of marine life exists in the canals. The marine life includes fish, such as snook, red snapper, sea trout and pen fish, and crabs and wildlife.
The Department discovered low levels of benthic macroinvertebrates and lower forms of marine life in the eastern section of the canal. According to Dr. P. Dooris, opening the system to a greater degree to Double Hammock Creek would promote greater diversity of animal life. This observation is supported by the Jones Study, Intervenor's Exhibit 10 which found a large number of benthic macroinvertebrates and marine life in the western section of the system.
The Jones Report at Table 3.21, compares benthic macroinvertebrates found in Salt Springs Run and Double Hammock Creek with other estuaries in Southwest Florida. From the data in the table, it can be concluded that benthic macroinvertebrates vary greatly in quantity and diversity depending upon the time of the year and the conditions under which the samples were taken. Table
3.17 of the Jones Study reflects a sampling of benthic macroinvertebrates collected from various stations in Double Hammock Creek, the Gulf of Mexico and the canal system west of the main plug. The Study revealed that benthic
macroinvertebrates were present in the canal system although to a lesser extent than those present at the other sampling stations.
According to Dr. P. Dooris, the removal of the plug would encourage vegetation, creating a better environment for fish and invertebrates. The main plug is limiting the free entry and exit of fish and benthic macroinvertebrates in the eastern portion of the canal. Additionally, the main plug acts as a bridge to the marsh area to the north which has been set aside from development. Limiting public access to this area by removal of the plug would provide a more secure and improved environment for the fish and wildlife in the marsh. Removal of the main plug would encourage greater mixing of the water and flushing of the system. If the plug is not removed, the canal system would slowly deteriorate and could stagnate. The flushing action and residence time in the canal would be enhanced if the figuration of the canals was improved. They are presently deep and relatively straight sided which, when combined with the shallower entrance to the main canal, acts as a hinderance to mixing and flushing.
The residence time of the water in the eastern canal section is longer than that in the western system. Presumably, this is due to the western section of the main canals direct connection to Double Hammock Creek and results in higher degrees of flushing in this section.
The Intervenor's Assertion That Denial Of The Permit Application Constitutes A Taking and/or The State Should Be
Estopped From Refusing To Issue A Permit
At the final hearing, the Intervenors presented evidence that if the canals began to degrade and stagnate, the value of canal property would decrease and could become worthless to some residents. Based on this testimony, the Intervenors assert that they have been denied due process if the Department fails to issue the requested permit, thereby, taking their property without just compensation. However, even assuming Intervenors' worst case situation, an option which would be available to the residents, to alleviate a stagnant water problem would be to fill the canals. Moreover, the actions of the state or lack thereof in this case is not the proximate cause of the residents problem. The developer, by proceeding on his own after being placed on notice of permitting requirements, assumed any risk associated with not providing what had been promised.
Additionally, the Department's failure (1) to require a permit to construct the canals through legal proceedings, (2) to inform Conrad that he could not connect the canals to state waters, (3) to inform the residents of the situation with the canals and/or (4) to refer the developer to the Florida Land Sales Board, are asserted as a basis for imposing an estoppel against the State in this case.
While it is true that some of the Intervenors bought their homes based on advertising and representations of "gulf access", insufficient evidence was presented to show that the state played a role in this misrepresentation. Unfortunately, the Applicant advertised the property as "gulf access" in the absence of any qualification such as "subject to permitting" which would have protected his own interest and placed respective purchasers on notice.
More disturbing, however, is the Intervenors estoppel argument concerning a meeting between Representative Ron Richmond, the former Secretary of the Department and others. At the meeting, the former Secretary informed
those present that the only reason that the main plug was maintained was to contain effluent that was being dumped from a nearby sewage treatment system and if the sewage problem could be solved and it could be proved that the canal was open prior to the sewage problem, then the plug could be removed. Following the meeting, Representative Richmond believed that the Department had no problem with the main plug but objected to its removal to keep leverage on the small plug.
The former Secretary eventually denied the permit requested since the Department did not believe that the isolated canal was ever open. Thereafter, interested parties were invited to view aerial photographs from 1974 which show the two plugged areas closed. Although the sewage treatment problem was eventually solved and effluent discharge presumably has stopped, no authorization for the main plug's removal was granted. This, however, is not sufficient to demonstrate an estoppel. Regardless of what may have been represented by the former Secretary, the problem with sewage discharge was not the only factor which by law was required to be considered by the Department.
If after the sewage problem was solved other conditions were found to be present which were prohibited under state law, no permit could be issued. The sewage problem would have been required to be solved regardless of the plug and its removal is insufficient to establish an estoppel.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties and subject matter of this Proceeding. Section 120.57(1), Florida Statutes.
The legal issues which require a determination in this case include
whether the Department has Chapter 253 jurisdiction over the subject canal system and, if so, whether applicable standards have been met by the Applicant;
whether Chapter 403, Florida Statutes, water pollution standards have been met by the Applicant; (3) whether the state is estopped from denying the permit in this case; and (4) if the permit is denied, whether an unlawful taking of property has occurred.
Chapter 253 Jurisdiction
The Intervenors/Residents have challenged the Department's permitting authority pursuant to Chapter 253, Florida Statutes, asserting that Section 253.123, Florida Statutes contains . . . a clear exception to the requirement for obtaining a permit." The exception referred to by the Intervenors, provides as follows:
No private person, firm or corporation shall construct islands or add to or extend existing lands or islands bordering on or being in the navigable waters of the state as defined in s. 253.12(1) by pumping sand,
rock or earth from such waters without first complying with s. 253.122, provided, however, nothing herein contained shall relate to artificially created canals. Section 253.123, Florida Statutes. (Emphasis supplied)
Section 253.123(1), Florida Statutes, was adopted in 1957. See Section 3, Chapter 57-362, Laws of Florida. The section as originally enacted was entitled "Restriction of Filling Land" and provided:
Section 253.123 Restriction of filling land.- No private person, firm or corporation shall construct islands or add to or extend existing lands or islands bordering on or being in the navigable waters of the state as defined in section 253.12(1) herein by pumping sand, rock or earth from such waters or by any other means without first complying with section 253.122 provided nothing herein contained shall relate to artificially created navigable waters.
This section shall not apply to lands the owners of which have heretofore purchased or are purchasing under contract from the Trustees of Internal Improvement Fund and who, at the time of the effective date hereof, have permits issued by the United States Corps of Engineers, and approved by the Trustees of Internal Improvement Fund to fill said lands.
In 1967, Section 253.123 was amended to prohibit the removal of sand, rock or earth from navigable waters and submerged lands channelward of bulkhead lines. See Section 5, Chapter 67-393, Laws of Florida, which added Sections 253.123(2) - (4), Florida Statutes, and amended the section title to read "[r]estrictions on filling land and dredging beyond bulkhead lines.-" (Emphasis supplied), in order to conform the title to the newly enacted provision.
As stated in the title, Chapter 70-167, Laws of Florida, amended the 1967 act to extend the then existent restrictions ". . . on the removal of material from certain navigable waters lying channelward of the bulkhead lines, to also apply to such waters landward of such lines." See Section 1, Chapter 70-176, Laws of Florida, which amended the section title to provide "[r]estrictions on filling land and dredging.-" (Emphasis supplied)
In construing the statute as originally enacted in conjunction with pertinent subsequent amendments, it appears that Sections 253.123(2) - (4), Florida Statutes, were intended to relate only to removal or dredging. By contrast, the exception contained in Section 253.123(1), Florida Statutes, "...nothing herein contained shall relate to artificially created navigable waters", was amended onto C/S for SB 728 in the Senate during the passage of Chapter 57-362, Laws of Florida, and was apparently intended by the legislature to apply only to fill projects. 2/ Subsequent amendments to Section 253.123, Florida Statutes consistently broadened the permitting requirements and eliminated exceptions to the dredging provisions of Sections 253.123(2) - (4), Florida Statutes. This occurred as the state was in the process of embarking on a new policy which was geared to the protection of state resources as opposed to their exploitation. See Chapter 403.021, Florida Statutes and Article II, Section 7, and Article X, Section 11, Florida Constitution.
In furtherance of their powers concerning the protection of state lands and waters, the Department promulgated Rule 17-4.29(1)(b), Florida Administrative Code, which states that a permit under Chapter 253 is required for "dredging and/or digging by pumping sand, rock, silt or earth of any kind by
any means including dredging to connect artificial waterways or water bodies to navigable waters." (Emphasis supplied) This rule is applicable only if the activity is to occur at or below the line of mean high water or ordinary high water in, on, or over the navigable waters of the state.
Double Hammock Creek, the open water body adjacent to the subject canal system, is a Class III water of the state pursuant to Rule 17-3.121, Florida Administrative Code. The canal system behind the plug in the main canal and connected to Double Hammock Creek by way of the tidal, navigable mosquito canal is also a Class III water pursuant to Rule 17-3.121, Florida Administrative Code. The removal of the plug in the main canal and the connection of the isolated finger canal would transform the entire canal system into waters of the state as defined at Section 403.031(3), Florida Statutes.
The connection will also transform the canal system into a Class III water body, subject to Rule 17-3.121, Florida Administrative Code.
Additionally, the project as proposed in the application and stipulated to in the prehearing agreement signed by the parties, involves dredging below the mean high water line. Since the project involves dredging in a submerged, tidal area, a permit under Chapter 253 is required. 3/ See Sections 253.03 and 253.12, Florida Statutes.
Pursuant to Chapter 253.123(2)(d), Florida Statutes, this project may be authorized only when
... the board of trustees has determined, after consideration of a biological sur- vey, and an ecological study and a hydro- graphic survey, if such hydrographic sur- vey is required by the board...that such surveys and study show that such re-
moval will not interfere with the conser- vation of fish, marine and wildlife or other natural resources, to such an extent as to be contrary to the public interest, and will not result in the destruction of oyster beds, clam beds, or marine produc- tivity, including, but not limited to, destruction of natural marine habitats, grass flats suitable as nursery or feeding grounds for marine life, and established marine soils suitable for producing plant growth of a type useful as nursery or feeding grounds for marine life or natural shoreline processes to such an extent as to be contrary to the public interests.
Pursuant to Rule 17-4.29, Florida Administrative Code, an applicant must affirmatively show that the activity will not interfere with the conservation of fish, marine and wildlife or other natural resources to such an extent as to be contrary to the public interest and will not result in the destruction of clam beds, or marine productivity, including but not limited to destruction of natural marine habitats, grassflats suitable as nursery or feeding grounds for marine life, to such an extent as to be contrary to the public interest.
The evidence demonstrates that the present system, with the exception of the isolated canal, is presently directly connected to state waters from the west and indirectly connected from the east via the mosquito canal. Under such circumstances, the immediate environmental impact of opening the main system would be minimal. The long term impact is more difficult to assess with any degree of certainty. The experts in this case possess widely differing opinions concerning any positive or negative effects associated with removal of the main dike. On balance, the opening of the main dike will in all probability neither improve nor significantly degrade the existing situation. However, one clearly positive aspect of removal of the dike would be to limit public access to the salt water marsh area north of the system. The main dike presently serves as a bridge to the marsh which is a natural and presumably productive area which has been excluded from development. Boat access to the Gulf through the marsh via the mosquito canal would also be limited by opening the main canal. This would have a positive environmental effect which when considered in conjunction with the fact that the system is not presently self-contained, tips the balance in favor of removal of the main dike. Moreover, if the water quality east of the plug improved, the water flowing through the marsh via the mosquito canal would also improve.
The issue concerning the isolated finger canal is exceedingly more difficult. This canal is presently closed and not part of any open system. If left closed, significant degradation of water quality in the isolated canal could ultimately be expected. Presently, however, the closed-end canal is relatively healthy, despite the serious stresses placed on it from surrounding development. If opened, it could impact adversely on the rest of the canals, since a new closed-end finger canal of significant volume would be added to the system. While it is certainly adverse to the public interest to have a closed end, degraded canal in a residential area adjacent to state waters, it is also adverse to the public interest to permit such a closed-end canal to place additional stress on the rest of the system and Double Hammock Creek. If this dike is to be removed, it should be accomplished only subject to specific conditions agreed to by the adjacent property owners, formulated to protect the marsh area to the north, Double Hammock Creek and the rest of the finger canals which are already a part of the open system. The conditions which would be required to be agreed to prior to removal include (1) the establishment of a scientifically acceptable monitoring program to evaluate the impact on the entire system of opening the isolated canal, and (2) an agreement by the parties that if significant degradation were detected as a result of opening this second dike, the dike would be closed subject to the canal being appropriately modified, if possible, in order to limit the negative impact from the isolated canal on the larger system. Compare Shablowski v. Department of Environmental Regulation, 370 So.2d 50 (Fla. 1st DCA 1979).
Finally, in regard to Chapter 253 jurisdiction, the Intervenors have asserted that the Department lacks jurisdiction in this case citing State of Florida, Board of Trustees of the Internal Improvement Trust Fund v. Sea Air Estates, Inc. 327 So.2d 823 (Fla. 3rd DCA 1976). This case, however, is distinguishable since the court specifically limited its holding to the particular facts of the appeal which involved excavation wholly within artificially created navigable waters and did not discuss whether the system was connected to state navigable waters. Additionally, while not entirely clear, the evidence in the case as determined by the trial court indicated that the system was upland and above the high water mark.
Similarly, in State of Florida, Department of Environmental Regulation
v. Oyster Bay Estates, 384 So.2d 819 (Fla. 1st DCA 1980) the court concluded
that action by the Board of Trustees in approving a navigational channel in 1969, a matter within its jurisdiction, did not confer any rights upon an applicant with respect to construction of inland canals upon the applicant's upland property. See Oyster Bay, supra at 892-893. Although the court concluded that the Department had no jurisdiction over the upland property where the inland canals were apparently located, it nonetheless found that jurisdiction existed in the navigational canal. 4/ Also see Farrugia v.
Frederick, 344 So.2d 921 (Fla. 3rd DCA 1977) in which Chapters 253 and 403, Florida Statutes, permits were involved in the construction of a boat basin, access channel and upland canals.
An interpretation of Sea Air and Oyster Bay which limits these cases to the particular facts presented is consistent with the Department's rule concerning connecting artificial waters, Rule 17-4.29(1)(b), Florida Administrative Code, as well as the somewhat confusing legislative history surrounding the enactment of pertinent sections of Chapter 253, Florida Statutes. Since the Department acts on behalf of the Board of Trustees concerning Chapter 253 permits, See Section 1, Chapter 75-22, Laws of Florida and in the process implements a clear statutory and constitutional public policy of protecting and conservation of state land and resources, its interpretation of statutes and its own rules implementing such a policy is entitled to great weight. See State of Florida, Department of Health and Rehabilitative Services
v. Framat Realty, 407 So.2d 238 (Fla. 1st DCA 1981); Board of Regents v. PERC,
368 So.2d 641 (Fla. 1st DCA 1979). Moreover, Rule 17-4.29(1)(b), Florida Administrative Code, is also consistant with Section 4O3.813(2)(f), Florida Statutes, which, inter alia, exempts from Chapter 253 permitting requirements:
The performance of maintenance dredging
of existing man-made canals, channels, and intake and discharge structures where the spoil material is to be removed and de- posited on a self-contained, upland spoil site which will prevent the escape of the spoil material into the waters of the state, pro- vided that no more dredging is to be performed than is necessary to restore the canals, channels, and intake and discharge structures to original design specifications and provided that control devices are utilized to prevent turbidity and toxic or deleterious substances from discharging into adjacent waters during maintenance dredging. This exemption shall apply to all canals constructed prior to
April 3, 1970, pursuant to all necessary state permits. This exemption shall not apply to the removal of a natural or man-made barrier separating a canal or canal system from ad- jacent waters.... (Emphasis supplied)
Thus, pursuant to Section 403.813(2), Florida Statutes, not only is the unplugging or connecting of systems not exempt from Chapter 253 permitting, but it is specifically made an activity for which a permit is required in the context of maintenance dredging of existing man-made canals.
Finally, the Department asserts that the Applicant is not entitled to a Chapter 253 permit due to its failure to furnish a hydrographic survey. As noted by the Intervenors, no hydrographic survey requirement was listed as a
reason for denial of the permit application. Pursuant to Rule 17-4.29(5) and (6), Florida Administrative Code, the hydrographic survey requirement is permissive. When denying a permit application the Department must
... furnish the applicant an official state- ment specifying with particularity the reasons for denial... See Rule 17-4.29(7), Florida Administrative Code.
The Department's Notice to Deny, dated November 5, 1979, fails to list the Applicant's failure to provide a hydrographic survey as a ground for denial of the instant permit. The Department contends that the statement "creation of stagnant areas of water" in the notice equates with the lack of a hydrographic survey. Such an interpretation of the Notice to Deny is not reasonable and forces an applicant to guess at the actual reasons for permit denial by a governmental agency. If the Department intended to require a hydrographic survey and one was not provided, it should have denied the application on that specific ground. Basic notions of fair play require that an applicant be given reasonable notice of the grounds for denial and the Department's own rule requires no less. Accordingly, the Applicant's failure to provide a hydrographic survey does not defeat Chapter 253 jurisdiction in this case.
Chapter 403 Standards
Pursuant to Section 403.087, Florida Statutes, "[n]o 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...." Canals are stationary installations which can reasonably be expected to be sources of pollution and, as such, are subject to Chapter 403, Florida Statutes, permitting jurisdiction. Sexton Cove Estates, Inc. v. State of Florida, Pollution Control Board, 325 So.2d 468 (Fla. 1st DCA 1976).
The applicable standards for issuance of dredge and fill permits under Chapters 403 and 253, Florida Statutes, are set forth in mules 17-4.07, 17-4.28 and 17-4.29, Florida Administrative Code.
The burden of proof in dredge and fill proceedings was enunciated by the court in Florida Department of Transportation v. J.W.C. Company, Inc., 396 So.2d 778 (Fla. 1st DCA 1981). Once an applicant establishes a prima facie showing of entitlement to the permit:
[t]he "burden of proof is upon the [Department] to go forward with evidence to prove the truth of the facts asserted in [its] petition. If the Department fails to carry the burden of the contro- verted facts asserted--assuming that the applicant's preliminary showing before the hearing officer warrants a finding
of "reasonable assurances"--then the permit must be approved. Id. at 789.
The basis for the Department's denial of the instant permit centered on: (1) the low levels of dissolved oxygen in the canal system, (2) the potential high BOD which would affect dissolved oxygen levels, (3) discharge
which could create a nuisance, (4) the lack of bethnic diversity and (5) potential stormwater runoff from surrounding areas which could contain insecticides, herbicides, fertilizers, animal wastes, heavy metals, oils, greases and refuses.
Rule 17-4.07, Florida Administrative Code, requires that an applicant affirmatively provide reasonable assurance that the activity proposed will not cause pollution in contravention of Department standards, rules or regulations. The Petitioner has provided the Department with reasonable assurances in this case.
Rule 17-4.28(3), Florida Administrative Code, requires that an applicant for a dredge and/or fill permit affirmatively provide reasonable assurances that the short-term and long-term effects of the activity will not result in violations for Rule 17-3, Florida Administrative Code water quality standards. Although the samples within ,the canals did not at all times and places meet state standards, neither did the water sampled from outside the system. Once the main canal is fully opened, improved flushing and tidal action should result in improved dissolved oxygen levels throughout the system.
Rules 17-3.051 and 17-3.061, Florida Administrative Code, provide certain minimum criteria that must be met at all times and places. The preponderance of the evidence establishes that with the plugs removed, greater flushing action would occur and the substances listed in the rule, if introduced into the system, would accumulate at a slower rate than at present.
Rule 17-3.121(7), Florida Administrative Code, states that the diversity of bethnic macroinvertebrates shall not be reduced to less than seventy-five (75 percent) of established background levels. The low levels of macroinvertebrates found in the system is typical of estuary systems at various times of the year. If the main plug were removed and a more efficient exchange of saline water occurred, a higher level of diversity throughout the entire system could be expected. 5/
Pursuant to Rule 17-3.121(14), Florida Administrative Code, in predominantly marine water the concentration of dissolved oxygen shall not average less than five (5) milligrams per litre in a twenty-four hour period and shall never be less than four (4) milligrams per litre. The dissolved oxygen levels in the canal system and Double Hammock Creek fluctuate above and below the standards for Class III waters. During a sampling in 1976, for example, the canals met state standards while a station in Double Hammock Creek did not. If the canals were open, the evidence indicates that improved flushing and exchange will occur and overall water quality should improve.
The Applicant having met its burden under applicable Chapter 403 statutes and regulations, is entitled to the permit requested.
It should also be noted that although the Department has an apparent policy of opposition to connecting dead-end canals to state waters, neither this policy nor the reasons for it have been set forth in the Department's rules.
The State Is Not Estopped From Granting The Instant Permit
Intervenors have argued that the doctrine of equitable estoppel applies to this case and prevents the Department from denying the instant permit application. Basically, they contend that by failing to give notice to
prospective purchasers that the property in Westwood might not have "gulf access" as advertised by the developer and allowing the developer to construct the canals without informing him he could not connect the canals to state waters, the state cannot now refuse to grant the requested permit.
The doctrine of estoppel has no application in this case. In order for the doctrine to apply, it is essential that the party claiming the existence of an estoppel was influenced or misled by the conduct, act or omission of the party against whom the doctrine is invoked. Macina v. Magurno, 100 So.2d 369 (Fla. 1958); Palatka Federal Savings and Loan Association v. Raczkowski, 263 So.2d 842 (Fla. 1st DCA 1972); Boynton Beach State Bank v. Wythe, 126 So.2d 283 (Fla. 2nd DCA 1961).
In this case the Department did nothing to encourage any of the Intervenors to purchase lots in the development. It is also clear that the Department did nothing to influence the Petitioner to construct the canal system without applying for a permit. No authority has been cited to the effect that the Department was required to notify prospective purchasers that since no permit had been obtained for the system, it was subject to being plugged. While some Intervenors may have been induced to purchase lots due to the representation that they would have "gulf access", the Department was not in any way responsible for that inducement and cannot be estopped from applying the law under such circumstances.
Denial Of The Instant Permit Application Will Not Deprive The Petitioner And In- tervenors Of The Use Of The Property So As To Constitute A Taking
The Intervenors have asserted that the failure to grant the instant permit application will result in the reduction, if not elimination, of property values due to the negative conditions which could be expected to develop if the system remains either closed in the case of the isolated canal or partially closed, in the system east of the plug.
A decrease in property values occurring as a result of the construction of an unpermitted canal system cannot be characterized as a governmental taking. The Intervenors would not be denied all beneficial use of their property if the system remains closed or partially so, and accordingly, a taking would not occur. Compare Zabel v. Pinellas County Water and Navigation Control Authority, 171 So.2d 376 (Fla. 1965) with Graham v. Estuary Properties, Inc. 399 So.2d 1374 (Fla. 1981) and Farrugia, supra at 923.
Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED:
That the application of Petitioner CNC Enterprises, Inc., for a permit to excavate two plugs in an artificially created canal system in the Westport subdivision be granted subject to the following conditions concerning the removal of the plug from canal #3, the isolated finger canal: (1) that prior to removal, a scientifically acceptable monitoring program be established to evaluate the impact on the entire system of opening the isolated canal and (2) prior to removal the parties agree that if significant degradation were detected as a result of opening the isolated canal, its dike would be closed subject to
being reopened when the canal was appropriately modified, if possible, to limit its negative impact on the entire system.
Additionally, Petitioner must utilize equipment including, but not limited, to turbidity curtains to keep turbidity at a minimum and any spoil must be deposited in upland areas away from the project site.
DONE and ORDERED this 24th day of May, 1982, in Tallahassee, Florida.
SHARYN L. SMITH
Hearing Officer
Department of Administration Division of Administrative Hearings Oakland Building
2009 Apalachee Parkway
Tallahassee, Florida 32301
(904) 488-9675
Filed with the Clerk of the Division of Administrative Hearings this 24th day of May, 1982.
ENDNOTES
1/ However, although not reflected in the test data, the latest aerial photograph of the project shows that the isolated canal differs significantly in color and clarity from the rest of the canals in the system.
2/ The statute as enacted in 1967 is not a model of clarity due in large measure to the exception for artificial waters which arose as a floor amendment in the Senate. See 1957 Senate Journal at 1550. While not argued by the Department, there is an indication that the exception was intended to exempt filling activities in artificial systems from the bulkhead provisions of Section 253.123, Florida Statutes (1957), since in 1957 the majority of debate and amendments arose in relation to this new and apparently controversial provision.
3/ The Department has asserted that since the parties agreed in their prehearing statement that dredging below the mean high water line is involved in this case, the Intervenors waived any right to contest Chapter 253 jurisdiction. This issue is unnecessary to decide since the undersigned has concluded that the Department possesses Chapter 253 jurisdiction in this case.
4/ As noted by the court, the physical layout of the canal system in Oyster Bay was difficult to ascertain due to the record developed during the trial.
5/ Although the did not test for herbicides, pesticides and fertilizers, it is logical to assume that given the nature of the surrounding area, such chemicals are being introduced into the waters. However, this would be true regardless of whether the main plug was removed due to the present configuration of the system.
COPIES FURNISHED:
Harvey V. Delzer, Esquire
DELZER EDWARDS COULTER & PARKER, P.A.
Post Office Box 279
Port Richey, Florida 33568
David M. Levin, Esquire
and William W. Deane, Esquire State of Florida, Department of Environmental Regulation
2600 Blair Stone Road Tallahassee, Florida 32301
John K. Renke II, Esquire
204 Ridge Road
Port Richey, Florida 33568
Victoria Tschinkel, Secretary Department of Environmental Regulation Twin Towers Office Building
2600 Blair Stone Road Tallahassee, Florida 32301
| Issue Date | Proceedings |
|---|---|
| Jul. 02, 1982 | Final Order filed. |
| May 24, 1982 | Recommended Order sent out. CASE CLOSED. |
| Issue Date | Document | Summary |
|---|---|---|
| Jun. 30, 1982 | Agency Final Order | |
| May 24, 1982 | Recommended Order | Petitioner entitled to permit to excavate dikes connecting manmade canals to Class III state waters. |
C. W. PARDEE, JR. vs DEPARTMENT OF ENVIRONMENTAL REGULATION, 80-000549 (1980)
JACK K. STANSELL vs. DEPARTMENT OF ENVIRONMENTAL REGULATION, 80-000549 (1980)
ROBERT B. CHANDLER vs DEPARTMENT OF ENVIRONMENTAL REGULATION, 80-000549 (1980)
SOUTH FLORIDA WATER MANAGEMENT DISTRICT vs ROBERT A. ROBINSON, 80-000549 (1980)
