STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JAMES P. EYSTER, )

)

Petitioner, )

)

vs. ) CASE NO. 80-1439

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

Respondent. )

)

RECOMMENDED ORDER

This matter came on for hearing in Inverness, Florida, before the Division of Administrative Hearings, by its duly designated Hearing Officer, Robert T. Benton, II, on November 24, 1980. The parties were represented by counsel:

APPEARANCES

For Petitioner: John Crider, Esquire

Route 1, Box 405 Plantation Village

Crystal River, Florida 32629

For Respondent: David M. Levin, Esquire

2600 Blair Stone Road Tallahassee, Florida 32301

On July 2, 1980, Suzanne P. Walker executed, on behalf of the Department of Environmental Regulation (DER), a notice of intent to deny petitioner's application for a permit to connect an existing "closed canal" to other canals that communicate with Kings Bay, Crystal River's headquarters. Petitioner's Exhibit No. 7. By petition dated July 18, 1980, Petitioner's Exhibit No. 1, petitioner challenged the propriety of the proposed denial and requested a formal administrative hearing. On July 30, 1980, DER requested the Division of Administrative Hearings to conduct the hearing.

The parties stipulated that unsworn, written statements of Pam Sperling, Suzanne P. Walker, and Rick Lotspeich, which were submitted at the hearing, could serve as a basis for findings of fact, along with the evidence adduced at the hearing.

FINDINGS OF FACT

1. Petitioner owns a parcel of land including 24 lots that front on an L- shaped canal 1,520 feet long that is landlocked at both ends. At the top, the L-shaped canal is 40 feet across. It has almost perpendicular sides and is eight to ten feet deep. Petitioner proposes to dredge with a steel-track dragline in order to connect the landlocked canal to a canal system that is connected to Kings Bay in Citrus County. Culverts would be placed at the north end of the canal, and earth at the other end would be permanently removed,

   extending the canal. One result of such dredging would be that two additional lots would abut the L-shaped canal. Even before he bought the property, petitioner discussed some of the problems this project might entail with Alan Burdett, a DER employee.

   
   

2. In order to minimize turbidity in open waters, petitioner proposes to dredge outward from the L-shaped canal. Only after the sand from the initial dredging had settled would the final increment of earth be excavated and then only on an incoming tide. Part of the fill would be placed on the bottom of the L-shaped canal to decrease its depth to roughly five feet, more nearly approximating the depth of the canal system to which it would be connected.

   
   

3. The water in the L-shaped canal has a high biochemical oxygen demand. The surface is covered with mats of water hyacinths. Floating vegetation intercepts sunlight and interferes with photosynthesis in plants underneath, decreasing their oxygen output. Levels of dissolved oxygen in the water fall as a result. At night, moreover, floating plants may use dissolved oxygen from the water. Dissolved oxygen levels vary diurnally and decrease with depth where water strata are undisturbed. In general, dissolved oxygen levels vary inversely with water temperature.

   
   

4. On June 11, 1980, a water sample taken from the bottom of the L-shaped canal was found to be devoid of dissolved oxygen, while a sample from the surface contained 0.4 milligrams per liter of dissolved oxygen. One of petitioner's witnesses described the water in the L-shaped canal as very foul. On the morning of August 21, 980, a dissolved oxygen level in the L-shaped canal of two milligrams per liter was measured. DER's Exhibit No. 2. Sampling of water in the L-shaped canal by petitioner's agent on October 4 and 5, 1979, indicated dissolved oxygen levels of 4.1 milligrams per liter at high tide and

   0.5 milligrams per liter at low tide. Petitioner's Exhibit No. 5, Table 3.

   
   

5. A witness who reported seeing fish in the L-shaped canal testified that introducing water from the L-shaped canal into the existing canal system could cause a localized fish kill. This danger is evidently not very great, but the evidence did establish that the high level of biochemical oxygen demand and low level of dissolved oxygen found in the L-shaped canal are harmful rather than helpful to fish.

   
   

6. The canal system which would receive the water now contained in the L- shaped canal, opens into Kings Bay, the spring-fed source of Crystal River, which one of the petitioner's witnesses characterized as a "complex and sensitive estuarine system." Kings Bay, Crystal River, and the canals into which petitioner proposes to open the L-shaped canal constitute Class III waters. Water in this vicinity is high in chlorides but is classified as fresh water.

   
   

7. In the canal system to which petitioner proposes to add the L-shaped canal, rafts of water hyacinths are present. Water quality in the canal system is poor, according to petitioner's expert witness. Measured level of dissolved oxygen in this canal system ranged from 9.0 milligrams per liter in early October of 1979, Petitioner's Exhibit No. 5, Table 3, to 1.9 milligrams per liter on June 11, 1980. Petitioner's Exhibit No. 6. It takes some four days to flush the existing canal system. The time necessary for flushing the canal system would increase if it is enlarged as proposed by petitioner, even though flushing action in one part of the present canal system would be facilitated.

8. Crystal River is subject to tidal influence. Notwithstanding the 600 million gallons of water entering Kings Bay daily from springs, the incoming tide causes a current upriver. As a result, as much as five percent of a substance flushed out of a canal system like the one petitioner proposes to enlarge can be reintroduced into the canal system when the tidal flow reverses.

   
   

9. The fecal coliform count in a sample of water taken from the L-shaped canal was very low, 10 per 100 milliliters. A water sample taken nearby downstream, in the vicinity of residential development, contained 850 fecal coliform bacteria, per 100 milliliters. There was no evidence, however, that these bacteria were attributable to human excreta rather than to the excreta of some wild animal.

   
   

10. According to petitioner, persons who live in the area hope this project will go forward because they believe that the stagnant water in the L- shaped canal is a breeding place for mosquitoes. No witness reported seeing mosquito larvae in the L-shaped canal, however, and a biologist who had observed the canal was questioned on this point. Testimony was uncontradicted that small fish of a kind that feed on mosquito larvae inhabit the L-shaped canal. The evidence did not establish that mosquitoes breed in the L-shaped canal.

    
    

11. Manatees winter in Kings Bay and Crystal River. These vegetarian mammals are members of an endangered species. Of 34 animals in Kings Bay "sampled [in the fall of 1979] . . . [26] . . . had prop scars, and 10 . . . had wounds in a stage of healing that suggested they were less than two months old." Petitioner's Exhibit No. 3. Efforts to protect the manatees include strict speed limits and a recently constructed structure around a favorite spot to act as a barrier for motor boats. A purpose of making the canal connections petitioner proposes is to make Kings Bay and Crystal River more accessible to motor boats.

    
    

    CONCLUSIONS OF LAW

    
    

12. As an applicant for a permit for "dredging below mean highwater to establish a canal connection to navigable waters," Prehearing Stipulation, Page 2, petitioner has the burden to provide DER with "reasonable assurance based on plans, test results and other information, that the construction [or] expansion

    . . . will not . . . cause pollution in contravention of [DER] standards, rules or regulations." Rule 17-4.07, Florida Administrative Code. The pertinent DER regulations include Rule 17-4.29, Florida Administrative Code, notably subsection (6), which requires that "the applicant affirmatively show:

    
    

    1. that such 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 oyster beds, clam beds, or marine productivity, 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 interest, and

    2. that the proposed project will not create a navigational hazard, or a serious impediment to navigation, or sub- stantially alter or impede the natural flow of navigable waters, so as to be contrary to the public interest.

       
       

       Rule 17-4.29, Florida Administrative Code, applies "only in regard to the requirements of Chapter 253, Florida Statutes, and do[es] not relieve any persons from complying with Chapter 403, Florida Statutes." Rule 17-4.29, Florida Administrative Code.

       
       

13. Implementing Chapter 403, Florida Statutes (1979), Rule 17-4.28(3), Florida Administrative Code, provides:

    
    

    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 water quality criteria, standards, requirements and provisions of Chapter 17-3, Florida Administrative Code.

    
    

    By rule, the DER is required to "give special consideration to application is for construction of residential canals and their connection to . . . [other] waters . . . where [inter alia] such canals and connections were shown on a plat recorded prior to April 13, 1970, . . . ." Rule 17-4.28(7)(6), Florida Administrative Code. No evidence was adduced in the present case regarding any plat.

    
    

14. The dissolved oxygen criterion for Class II waters in five milligrams per liter, with the proviso: "Normal daily and seasonal fluctuations above these levels shall be maintained . . . ." Rule 17-3.121(14), Florida Administrative Code (emphasis supplied). The evidence showed that the proposed receiving waters in the existing canal system do not presently meet this requirement and that the problem would be significantly aggravated, at least in the short term, by connecting the L-shaped canal. At the hearing, there was some discussion about introducing the water in the L-shaped canal into the receiving waters slowly by means, for example, of pumps, but petitioner did not seek to amend his application to specify any precautions along these lines. Petitioner's contention that the deteriorated condition of the water into which the L-shaped canal would open excuses compliance with Class III water quality standards must be rejected.

    
    

15. The long-term effects of opening the L-shaped canal on water quality in the receiving waters are less clear and less significant, but petitioner did not carry his burden to give reasonable assurance that the impact on dissolved oxygen levels in water already failing to meet the dissolved oxygen standard would be favorable.

    
    

16. In these circumstances, it is unnecessary to reach the many other issues imaginative counsel sought to interject into the proceedings, except to note in passing that Section 370.12, Florida Statutes (1979), declares Florida

"a refuge and sanctuary for the manatee, the 'Florida state marine manual.'" Section 370.12(2)(b), Florida Statutes (1979).

RECOMMENDATION

Upon consideration of the foregoing, it is RECOMMENDED:

That respondent deny petitioner's application for permit.

DONE AND ENTERED this 19th day of December, 1980, in Tallahassee, Florida.

ROBERT T. BENTON, II

Hearing Officer

Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301

904/488-9675

Filed with the Clerk of the Division of Administrative Hearings this 22nd day of December, 1980.

COPIES FURNISHED:

John Crider, Esquire Route 1, Box 405 Plantation Village

Crystal River, Florida 32629

David M. Levin, Esquire Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32301

Docket for Case No: 80-001439

Orders for Case No: 80-001439