STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

GENERAL DEVELOPMENT CORPORATION, )

)

Petitioner, )

)

vs. ) CASE NO. 80-2176

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

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal administrative hearing was conducted in this matter on July 13, 1983, in Tallahassee, Florida. The following appearances were entered: Valerie F. Fravel, Miami, Florida, appeared on behalf of the Petitioner, General Development Corporation; and J. Alan Cox, Tallahassee, Florida, appeared on behalf of the Respondent, Department of Environmental Regulation.

On or about June 22, 1979, General Development Corporation ("GDC" hereafter) filed an Application to Conduct Activities in Waters of the State of Florida with the Department of Environmental Regulation. The Department requested additional information, which was provided by GDC. On or about October 24, 1980, the Department issued a letter giving notice of its intent to deny the permit application. The applicant requested a formal administrative hearing, and, on November 17, 1980, the Department forwarded the matter to the office of the Division of Administrative Hearings for the assignment of a hearing officer and the scheduling of a hearing. The hearing was originally scheduled to be conducted on February 5, 1981. The parties entered into settlement negotiations, and the matter remained in abeyance until March, 1983, when the parties advised the Hearing Officer that a settlement could not be accomplished. The final hearing was scheduled to be conducted in Miami, Florida, on July 13, 1983, by notice dated April 6, 1983. The parties stipulated to scheduling of the hearing in Tallahassee, and the final hearing was conducted as set out above.

GDC called the following witnesses at the hearing: R. S. Murali, GDC's Director of Environmental Permitting and Standards; Rod Ghioto, a consulting engineer in the area of water resources; and Tom Fraser, a consultant in the areas of water quality and biology. The Department of Environmental Regulation called the following witnesses: Beverly Birkitt, a project manager with the Department's Standard Permitting Section; Reese Kessler, an environmental supervisor in the Permitting Section of the Department's St. Johns River district office; George T. Baragona, the Department's Staff Hydrologist; and George L. Gionis, the Chief of the Technical Assistance Section of the Department's St. Johns River district office. Hearing Officer's Exhibits 1 through 9, Petitioner's Exhibits 1 through 5 and Respondent's Exhibit 1 were offered into evidence and received.

The parties have submitted post-hearing legal memoranda which include proposed findings of fact and conclusions of law. The proposed findings and conclusions have been adopted only to the extent that they are expressly set out in the Findings of Fact and Conclusions of Law which follow. They have been otherwise rejected as not supported by the evidence, contrary to the better weight of the evidence, irrelevant to the issues, or legally erroneous.

ISSUES

The ultimate issue to be resolved in this proceeding is whether GDC has provided reasonable assurance that its proposed activities will not result in violations of the Department's water quality standards. GDC contends that its proposed activities will have either a positive effect on water quality in receiving waters, or no effect at all. The Department contends that the activities would cause a degrading of water quality and contribute to violations of water quality standards that already occur in the area.

FINDINGS OF FACT

1. The activities proposed by GDC are located within the Melbourne-Tillman Water Control District ("MTWCD" hereafter) in southern Brevard County, Florida. The MTWCD is a special taxing district which was established in the 1920s. It comprises a total area of 98 square miles. An extensive canal and drainage ditch system was constructed by MTWCD shortly after its creation. The purpose of the system was primarily to accomplish flood control to allow agricultural activities. The system consists of numerous "finger canals," or closed-ended drainage ditches which ultimately feed into a main east-west canal known as "C- 1." Water from the C-1 canal discharges directly into a natural stream known as "Turkey Creek" at a point in close proximity to the Port Malabar Boulevard Bridge. Turkey Creek flows into the Indian River, which is a part of the Intercoastal Waterway. The discharge point of the C-1 canal into Turkey Creek is located approximately 1 1/2 miles from the Indian River. Turkey Creek, the

   C-1 canal, and the other canals and drainage ditches within the MTWCD are Class III waters, as described in the Rules of the Department of Environmental Regulation.

   
   

2. GDC acquired most of the property within the MTWCD during the 1950s. GDC remains the primary landowner within the District. After it acquired the property, GDC sought to modernize the water control system. A navigational lock and dam structure has been constructed at the discharge point of the C-1 canal and Turkey Creek. This structure, known as "MS-1," serves to regulate flows into Turkey Creek and thus serves to regulate water level within C-1 and the entire drainage system. MS-1 also serves to allow navigation into C-1 via Turkey Creek from the Indian River.

   
   

3. A number of subdrainage basins can be identified within the MTWCD depending upon which canal drains the basin into C-1. One of these basins is designated the "C-37" basin. The primary drainage canal within the C-37 basin is the C-37 canal. The C-37 canal discharges into C-1 at a point approximately

   4 miles from the MS-1 structure (the discharge point of the C-1 canal into Turkey Creek) . At least 10 separate dead-end canals or drainage ditches discharge into the C-37 canal. The C-37 drainage basin encompasses approximately 12 square miles within the MTWCD. Numerous residential structures have been constructed within the C-37 basin, and more are proposed.

   
   

4. Water quality in the canals and drainage ditches within the MTWCD is generally poor. Dissolved oxygen levels in waters within the C-37 basin are

   frequently below the Department of Environmental Regulation's minimum standard of five parts per million. Dissolved oxygen violations are also common in the C-1 canal, both upstream and downstream of MS-1. It does not appear that the MS-1 structure has adversely affected dissolved oxygen levels within the C-1

   canal. Some improvement has been noted in dissolved oxygen levels downstream of MS-1, probably as a result of turbulence that occurs in connection with operation of the structure that serves to aerate the water. Water quality in closed-ended canal systems such as the C-37 basin and the entire MTWCD system is typically poor. Violations of the Department's dissolved oxygen standards are common in such systems.

   
   

5. Through its application, No. 05-21282, filed with the Department of Environmental Regulation, GDC is seeking a permit to construct a water control structure and boat lock at the point where the C-37 canal meets the C-1 canal, and to widen and deepen existing canals and drainage ditches within the C-37 basin. GDC proposes to excavate approximately 1,283,302 cubic yards of material from the existing canals and to place 38,000 cubic yards of material in the C-37 canal in connection with construction of the water control structure and boat lock. The proposed structure and boat lock has been designated "MS-3." There is now a slight dogleg at the point where the C-37 canal meets the C-1 canal. GDC proposes to fill that area and to connect the canals in a more straight-line manner through MS-3. Approximately 10 miles of canals and drainage ditches within the C-37 basin would be dredged from 1 to 8 feet. The C-37 canal would be widened from its present 10-foot channel width to 100 feet. The MS-3 structure would be designed to provide navigation in the C-37 and connecting canals. The structure would also serve to control the water levels within the

   C-37 system. GDC has agreed with the MTWCD to obtain necessary permits and construct the MS-3 structure.

   
   

6. The proposed MS-3 structure is a part of GDC's overall plan for upgrading the MTWCD system. The MS-3 structure would have six 20-foot adjustable weir gates. It has been designed to accommodate a 10-year, 24-hour storm. The structure would be utilized to maintain the level of water within the C-37 basin at an elevation of 12.5 feet n.g.u.d. during the wet season and

   16.0 feet n.g.u.d. during the dry season. The dry-season level would be set high in order to conserve water within the C-37 basin. The wet-season level would be set low in order to provide flood control and a gradual discharge of runoff from the basin. Water would flow from the C-37 basin into C-1 through an overflow structure. There would be a 6-foot drop from MS-3 into the C-1 canal.

   
   

7. Existing canals and ditches within the C-37 basin typically have 2:1 slopes. GDC proposes to maintain similar slopes, or to improve them to a 3:2 ratio.

   
   

8. The MS-3 structure and dredging and filling operations proposed by GDC are likely to cause a deterioration of water quality within the C-37 basin and a deterioration in the quality of water that is discharged from the C-37 basin in terms of dissolved oxygen levels. This degrading of water quality is likely for seven reasons. First, the canals will be deepened. Typically deeper water bodies, especially in closed-ended canal systems such as the C-37 basin, have lower oxygen levels below the surface than do shallower water bodies. Second, the water levels which GDC proposes to maintain within the C-37 basin will increase groundwater flows into the canals and ditches, especially during the wet season. Groundwater has very low levels of dissolved oxygen. Third, increased boating activity that would result because navigation in the C-37 basin would become possible would contribute to oils and greases in the water. Increased levels of oils and greases increase biological oxygen demand and

   reduce dissolved oxygen levels. Fourth, the C-37 basin would become an impounded water body. The result would be less mixing of the water, increased biological oxygen demand and reduced oxygen levels. Fifth, vegetation would be removed as a result of dredging activities and as a result of boating activity made possible by the dredging activities. Vegetation serves to uptake nutrients from a water body and to improve water quality. The beneficial sorts of emergent vegetation that presently exist within the C-37 basin will have difficulty reestablishing themselves once the dredging activities are completed. This is because the water bodies will be made deeper, water levels will vary sharply and because of boating activities. Sixth, erosion of the canals and ditches is likely to continue as it has in the past. The restructuring of the slopes and the loss of vegetation are likely to increase the level of erosion.

   Erosion brings increased sediment into a water body. Increased sediment increases biological oxygen demand and reduces dissolved oxygen levels.

   Seventh, the swale system proposed by GDC to capture upland runoff before it enters the canal system is not adequate to retain pollutants from the runoff and to keep them out of the canal system. As development increases, the amount of pollutants entering the system is likely to increase, and dissolved oxygen levels are likely to be reduced.

   
   

9. Some features of the proposed project would serve to improve dissolved oxygen levels that leave the C-37 basin. As water left the basin, it would be aerated because of the 6-foot drop that would occur. This aeration would serve to increase dissolved oxygen levels. The widening and deepening of the canals would also serve to slow the velocity of flows within the C-37 basin, and thus to allow more sediments to drop out of the water that would be passed on to the C-1 canal through MS-3. While these features would serve to improve the dissolved oxygen level in water downstream from MS-3, they would do nothing to improve dissolved oxygen levels within the C-37 basin. The project is likely to cause a deterioration of dissolved oxygen levels within the basin. The features of the project that would serve to improve dissolved oxygen levels downstream are not sufficient to overcome that deterioration and, overall, the project is likely to have a negative impact upon dissolved oxygen levels downstream from

   MS-3.

   
   

10. Dissolved oxygen levels within the C-37 basin and in the C-1 canal already typically violate the Department's dissolved oxygen standards. The project proposed by GDC is likely to increase the frequency and degree of water quality violations.

    
    

    CONCLUSIONS OF LAW

    
    

11. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter of this proceeding. Sections 120.57, 120.60, Florida Statutes.

    
    

12. An applicant to conduct activities such as proposed by GDC is required to affirmatively provide reasonable assurance to the Department of Environmental Regulation that the short-term and long-term effects of the activity will not result in violations of the Department's water quality criteria. Department of Environmental Regulation Rule 17-4.28(3), Florida Administrative Code. The Department's water quality standards are set out at Chapter 17-3, Florida Administrative Code. Rule 17-3.061(2)(d) provides that biological oxygen demand (BOD) shall not be increased to exceed values which would cause dissolved oxygen to be depressed below the standards established for each class of water. The standard for dissolved oxygen levels in Class III waters is set out at Rule 17- 3.121(14) as not less than 5 mg. per liter (or parts per million)

13. The project proposed by GDC is likely to result in increased violations of the standards set out in the Department's Rules 17-3.061(2)(b) and 17-3.121(14), Florida Administrative Code. Violations are likely to be more frequent and more profound both within the C-37 basin and downstream of the basin as a result of the project. Accordingly, GDC has failed to affirmatively provide reasonable assurance that the short-term and long-term effects of its project will not result in violations of the Department's water quality standards. The permit application should be denied.

RECOMMENDED ORDER

Based upon the foregoing Findings of Fact and Conclusions of Law, it is, hereby,

RECOMMENDED:

That a final order be entered by the Department of Environmental Regulation denying Application No. 05-21282 submitted by General Development Corporation to the Department.

RECOMMENDED this 31st day of August, 1983, in Tallahassee, Florida.

G. STEVEN PFEIFFER Hearing Officer

Division of Administrative Hearings Department of Administration

2009 Apalachee Parkway

Tallahassee, Florida 32301

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 31st day of August, 1983.

COPIES FURNISHED:

Valerie F. Fravel, Esquire General Development Corporation 1111 South Bayshore Drive Miami, Florida 33131

J. Alan Cox, Esquire Department of Environmental Regulation

2600 Blair Stone Road Tallahassee, Florida 32301

Ms. Victoria Tschinkel Secretary

Department of Environmental Regulation

2600 Blair Stone Road Tallahassee, Florida 32301

Docket for Case No: 80-002176

Orders for Case No: 80-002176