STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
K. ROBERTS, )
)
Petitioner, )
)
vs. ) CASE NO. 81-262
) 81-353
STATE OF FLORIDA, DEPARTMENT ) 81-455
OF ENVIRONMENTAL REGULATION, )
)
Respondent. )
)
RECOMMENDED ORDER
Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, William E. Williams, held a public hearing in this cause on September 30 and October 1, 1981, in Tallahassee, Florida.
APPEARANCES
For Petitioner: Jane Heerema, Esquire and
Robert A. Routa, Esquire
217 South Adams Street Tallahassee, Florida 32302
For Respondent: Cynthia Christen, Esquire and
William W. Deane, Esquire
Department of Environmental Regulation 2600 Blair Stone Road
Tallahassee, Florida 32301
The dispute between the parties in these proceedings involves three separate controversies presently pending before the Division of Administrative Hearings in D.O.A.H. Case Nos. 81-262, 81-353, and 81-455. By agreement of the parties, these three causes were consolidated for the purpose of conducting a final hearing. The record made in the consolidated hearing has been considered in the rendition of the orders in all three of the aforementioned cases, with recommended orders being issued separately in each case.
In the instant case, Petitioner, B. K. Roberts ("Petitioner"), has requested a formal hearing pursuant to the provisions of Section 120.57(1), Florida Statutes, to contest the Intent to Deny issued by Respondent, Department of Environmental Regulation ("DER"), concerning Petitioner's application for a variance from the requirements of Rule 17-4.28(8)(a), Florida Administrative Code.
Petitioner asserts that there will be no adverse environmental impact should DER grant a variance from Rule 17-4.28(8)(a), and that all other applicable requirements of Chapter 403, Florida Statutes, will be met by the proposed project. Petitioner also contends the granting of the requested variance is in the public interest because he will construct a free public boat
ramp for which there is a need in Alligator Harbor and because dredging of the proposed access channel will increase the value of Petitioner's property, spur construction activity in his subdivision, and expand the tax base in Franklin County.
DER contends that Petitioner has failed to provide information sufficient to justify the granting of a variance as required by Rule 17-1.57(1)(b)-(h), Florida Administrative Code.
At the final hearing, Petitioner testified in his own behalf, and called Robert A. Routa, Kenneth Aller, George Croy, and George Register as his witnesses. Petitioner offered Petitioner's Exhibits 1 through 7, which were received into evidence. DER called Harold T. Walling, David Henry Bickner, Jeremy Craft, Patricia Sanzone, Andrew Feinstein and Pamela Alice Sperling as its witnesses. DER offered Exhibits 1 through 6, including, pursuant to agreement, a late-filed exhibit consisting of a Department of Natural Resources' map designating Alligator Harbor as Class II waters approved for shellfish harvesting. Each of these exhibits was received into evidence. Each of the parties has submitted proposed findings of fact for consideration by the Hearing Officer. To the extent that those proposed findings are not included in this Recommended Order, they have been rejected as being irrelevant to the issues involved in this cause, or as not having been supported by evidence of record.
FINDINGS OF FACT
Petitioner is the owner and developer of a housing subdivision and its associated canal system known as "Alligator Harbor, Franklin County, Florida." Petitioner's property was originally a saw grass marsh which was, during times of high water, connected to Alligator Harbor by a shallow creek. In 1971, Petitioner's agent, Harry Morrison, filed an application with the Trustees of the Internal Improvement Trust Fund seeking to connect a proposed race-track shaped canal built on the upland property to Alligator Harbor by way of an access channel 120 feet wide, narrowing to 15 feet wide, 598 feet long, with depths at mean low water ranging from .1 foot to 3.2 feet. Construction of the inland canal began in 1972, and was completed in January of 1973, prior to final action by the Trustees on the access channel application. In order to construct the inland canal, dredging was conducted around the perimeter of the saw grass pond, with the dredged material being deposited in the center of the dredged area, thereby creating an oval inland canal surrounding an island created by deposition of the dredged material. At the same time, further dredging from the oval canal through the natural tidal creek was performed in order to straighten the creek. In February, 1973, a connection was made to Alligator Harbor from the inland canal when the creek was dredged to allow removal of the dredging equipment through the waters in Alligator Harbor. The connection between the upland canal and Alligator Harbor was then plugged, although an overflow pipe, two feet in diameter, was left in the plug. There is no reliable evidence in the record of this cause to establish either the elevation at which this overflow pipe was located, or the volume or frequency of water exchanges between the inland canal system and Alligator Harbor through that pipe. By April, 1973, the plug apparently had been washed out, but was replaced within a month at the request of the Trustees.
The 1971 application to the Trustees for a permit to connect the canal to Alligator Harbor was subjected to the customary permit review process, which included requests for comments from other agencies. The Department of Natural Resources and the Game and Fresh Water Fish Commission submitted comments and recommendations for denial, respectively, in March and May, 1972. The Department of Pollution Control, DER's predecessor agency, in February, 1973, recommended denial of the request on the grounds that the receiving waters were approved shellfish harvesting areas. The proposed project remained dormant for a number of years, apparently because the applicant wished to make modifications in the proposal. Finally, on March 25, 1976, a Letter of Intent to deny was sent to the applicant, whereupon the application was withdrawn.
Over a period of years, the material placed in the canal plug by Petitioner was washed away. This process was completed during a storm event, apparently in 1978. The washout of the plug and overflow pipe resulted in a direct water connection between the upland canal and Alligator Harbor. The upland canal system is now affected by daily natural tidal cycles.
The upland canal system, as presently constituted, consists of an oval canal, approximately one mile in length, with a single connection to Alligator Harbor at the site of the washed out plug and overflow pipe. This oval canal surrounds the aforementioned island created by depositing material dredged from the former saw grass marsh. The upland canal varies in depth from areas that are totally exposed at low tide, to other areas that at times exceed ten feet in depth. The average depth of the canal is approximately six feet at low water. The banks of the canal are unstabilized and eroding. Layers of organic material exist on the banks, apparently as a result of deposition there during the dredging process. In addition, a thick layer of organic material exists on the bottom of the canal.
On February 27, 1980, Petitioner submitted to DER a partial after-the- fact permit application to connect the inland canal system to Alligator Harbor by dredging an access channel 400 feet long by 40 feet wide, to a depth of -4 feet. In addition, the permit application sought to shoal a deed depression in the interior canal to -5 feet mean low water; fill an indention in the canal waterway; replace two metal culverts which currently connect the canal beneath a causeway to the island with a box culvert, 13 feet wide, to a height of +5.2 feet mean high water, and a depth of -4 feet mean low water. After these proposed modifications, the canal system would average -4 feet mean low water, with a maximum depth of -5 feet mean low water.
DER notified Respondent on March 17, 1980, that the application was deemed incomplete. When no satisfactory response to the letter notifying Petitioner of the incomplete status of his application was received, a Letter of Intent to deny was forwarded to Petitioner on May 28, 1980, stating the following reasons for denial of the permit application:
The proposed project is located in Class II waters, approved for shellfish harvesting, and dredging
in such waters is prohibited by Rule 17-4.28(8)(a) Florida Administrative Code;
Petitioner failed to provide reasonable assurances that the project would not violate state water quality standards for Class II
waters contained in Chapter
17-3, Florida Administrative Code, particularly7for the parameters
of dissolved oxygen (DO), nutrients, bacteriological quality and biological integrity;
The proposed project is located in Alligator Harbor, which has been designated an Outstanding Florida Water (OFW), and no DER permit or water quality certification may
be issued for the construction of a stationary installation which
significantly degrades water quality in OFWs either alone or in combination with other stationary installations, pursuant to Rule 17-4.242(1)(a) Florida Administrative Code. Further,
DER advised Petitioner that he had not affirmatively demonstrated that the proposed activity or discharge was clearly in the public interest Pursuant to Rule 17-4.242(1)(a)2, Florida Administrative Code, and that existing ambient water quality within Alligator Harbor would not be lowered as a result of the proposed activity or discharge in accordance with Rule
17-4.242(1)(a)2b, Florida Administrative Code.
The project and impacts from similar projects would degrade Alligator Harbor, and would interfere with
the conservation of fish, marine and wildlife or other natural resources and natural shoreline processes to such an extent as to be contrary to the public interest
in accordance with Rule 17-4.29(6)(a), Florida Administrative Code.
Alligator Harbor, which, as indicated above, is a Class II water body designated for shellfish harvesting, and which has also been declared an Outstanding Florida Water, is a shallow marine basin with sediments ranging from soft mud to sand. Large marsh areas bordering on the harbor produce large quantities of organic detritus, and are characterized by soft, organic bottoms. Because of the ready exchange of waters between many of these marshes and Alligator Harbor, that water body likewise is characterized by an organic bottom, where fine, silty sediments have settled out.
As indicated above, Petitioner's application to dredge an access channel into the waters of Alligator Harbor indicates that the channel's length will be 400 feet from its junction with the inland canal system, and that it will be dredged to a depth of -4 feet. At 200 feet offshore of the mouth of the inland canal system Alligator Harbor has a natural water depth of approximately one foot, dropping off to two feet 400 feet offshore, and three feet at a distance of 500 feet offshore.
Because of the soft organic bottoms present in Alligator Harbor, the access channel may be expected to fill in with the fine sediments present in the system within a short period of time. As a result, in order to keep the channel available for its obviously intended uses, extensive maintenance dredging will have to be performed, perhaps as often as annually. In fact, the canal systems already existing in the Alligator Harbor area have evidenced such a maintenance dredging problem, and have all begun to shoal in extensively within a year from their construction. Frequent maintenance dredging results in a constant disturbance of existing biological systems. These systems may repopulate after a single maintenance dredging event, only to be disturbed again when additional dredging is necessitated to alleviate shoaling problems. Where maintenance dredging occurs, total elimination of biological systems in the area of dredging results. As the areas in either the navigation channel or portions of the inland canal shoal in as a result of the soft bottom sediments, water circulation would be reduced, thereby reducing the quality of water contained ire the inland canal system.
At present, 114 lots on Petitioner's property have been platted for single family homes. Few homes have been built in the subdivision. However, those that have been built have all utilized septic tanks. Although Petitioner does not propose to develop the fill island until a central sewage facility is available, local regulations permit the installation of septic tanks on those lots around the outside perimeter of the inland canal. Petitioner's application, in fact, indicates that septic tanks will be utilized on the outside perimeter, and that those tanks will be placed in the landward 50 percent of those lots.
Studies have indicated that septic tanks, when utilized in coastal areas, should be limited to areas of low residential densities because constituents from septic tanks often reach coastal waters in very short periods of time. The most common constituents found in septic tank leachate are nitrogen and total organic carbon. These are commonly found in higher amounts in canal systems surrounded by intense development. Because of the naturally high water table in coastal areas, septic tank leachate percolating through the soil tends to perch on top of organic materials, and then move laterally toward canal waters. In addition to nitrogen and total organic carbon, phosphorus, bacteria, and viruses also are constituents of septic tank leachate. Although some removal of biological constituents might be expected to occur, those constituents not removed would remain in the soil until washed into the canal waters either by the action of rainfall falling in situ, or through tidal influences. The record in this cause establishes that, should the canal system be opened, and the proposed improvements in that system completed, the system would flush in 5.6 tidal cycles, or about three days. The standard mathematical model applied to the canal system to reach this conclusion is called the "tidal prism model." This model measures the volume of water entering an exiting the system on every tide to determine the number of tidal cycles necessary before the ratio of the original concentration of any pollutant in the system to the final concentration of that pollutant reaches 10 percent. As a result, even though the proposals might improve water quality in the inland canal system, any pollutants entering the system, any pollutants entering the system either through storm water runoff or septic tank leachate would be removed from the inland canal system into waters of the State within a relatively short period of time.
During September of 1981, both DER and Respondent performed water quality sampling in and adjacent to the canal system. DER sampled for temperature, surface salinity, surface pH and dissolved oxygen (DO) at eight locations, seven within the canal system and one location in Alligator Harbor. DER sampling stations were numbered one through eight, with station No. 4 representing the location in Alligator Harbor where samples were taken.
Sampling began at 7:45 a.m. on September 17 and ended at 9:30 a.m. on that same date. Results of the DER sampling are shown on the table on the following page.
Station | Time | Temp. deg | Surface Salinity | D.O. | Surface | pH |
Celsius | Percent | |||||
1 | 7:45 | 27(S) 27(1m) | 26 | 2.0(S) 2.9(1m) | 7.7 | |
2 | 8:10 | 27(S) 27(1m) | 24 | 3.4(S) 3.3(1m) | 7.6 | |
3 | 8:25 | 27(S) 27(2m) | 25 | 3.8(S) 8.8(2m) | 7.5 | |
4 | 8:45 | 26(S) 26(0.75m) | 26 | 5.4(S) 5.0(0.75m) | 7.8 | |
5 | 9:00 | 26.8(S) 26.8(0.5m) | 26 | 5.4(S) 5.4(0.5m) | 7.8 | |
6 | 9:14 | 26.5(S) 26.5(1m) | 24 | 6.0(S) 3.1(1m) | 7.8 | |
7 | 9:23 | 27(S) 27(1m) | 26 | 5.3(S) 3.4(1m) | 7.8 | |
8 | 9:43 | 27(S) 27.5(1m) 26.5 (2.3m) | 24 | 4.8(S) 2.0(1m) 4.8(2.3m) | 7.6 |
DER rules require that DO concentrations in all waters shall not average less than five milligrams per liter in a 24-hour period, and are required to never be less than four milligrams per liter. The record in this cause establishes that these water quality samplings were conducted in accordance with accepted methodology, and that the circumstances under which they were taken, including location and time of day, were sufficient to establish their accuracy. In addition to the DO violations presently existing in the inland canal system, further development of the property could also be expected to further aggravate the situation by way of increased storm water runoff, increased contributions of nutrients from septic tanks, detergents, and oils and greases from boat traffic, all of which inhibit the transfer of oxygen. If Petitioner's application is granted, his inland canal system will be connected to Alligator Harbor, an Outstanding Florida Water. Petitioner has asserted that he will provide a public boat ramp in conjunction with the development of his property, and that granting him access to Alligator Harbor by way of the canal system and associated access channel will stimulate single family home construction, thereby increasing the tax base of Franklin County. However, the record in this cause establishes that ample public access to the waters of Alligator Harbor and its environs already exists. Finally,
Petitioner's assertion that granting his application for variance would stimulate single family home construction and increase the tax base of Franklin County, insofar as can be determined from this record, is conjectural, and not supported by any credible evidence.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the subject matter of, and the parties to, this proceeding. Section 120.57(1), Florida Statutes.
The rule of the Department of Environmental Regulation from which Petitioner seeks a variance in this case is Rule 17-4.28(8)(a), Florida Administrative Code, which provides that:
(8)(a) The Department recognizes the special value and importance of Class II waters to Florida's economy as existing
or potential sites of commercial and recreational shellfish harvesting and
as a nursery area for fish and shellfish. Therefore, it shall be the Department's policy to deny applications for permits and/or certifications for dredging and/or filling activities in Class II waters, except where the applicant has submitted a plan of procedure which will adequately protect the project area and areas in the vicinity of the project from significant damage. The Department shall not
insue [sic] a permit for dredging and/or filling directly in areas approved for shellfish harvesting by the Department of Health and Rehabilitative Services.
Provided, however, that the staff of the Department may issue permits and/or certifications for maintenance dredging of existing navigational channels for the
construction of coastal protection structures and for the installation of transmission
and distribution lines for carrying
potable water, electricity or communication cables in rights-of-way previously used
for such lines.
Section 403.201(1), Florida Statutes, provides as follows:
Upon application the department in its discretion may grant a variance from the provisions of this act or the rules and regulations adopted pursuant hereto. Variances and renewals thereof may be granted for any one of the following reasons:
There is no practicable means known or available for the adequate control of the pollution involved.
Compliance with the particular requirement or requirements from which
a variance is sought will necessitate the taking of measures which, because of their extent or cost, must be spread
over a considerable period of time.
A variance granted for this reason shall prescribe a timetable for the taking of the measures required.
To relieve or prevent hardship of a kind other than those provided for in paragraphs (a) and (b). Variances and renewals thereof granted under authority of this paragraph shall each be limited to a period of 24 months except that variances granted pursuant to part II may extend for the life of the permit or certification.
Rule 17-1.57, Florida Administrative Code, which controls petitions and applications for variances or exemptions provides that:
A petition for a variance, pursuant to Section 403.201, Florida Statutes, of the Florida Air and Water
Pollution Control Act, shall be in accordance with these rules. Upon reviewing a petition within a reasonable time, the Department shall, after due notice, schedule a public hearing and shall address at least the following factors which also shall be addressed specifically by the petitioner
at the hearing:
The act, rule, or regulation and sections thereof from which a variance
is sought.
The facts which show that a variance should be granted because of one of the following reasons as set forth in Section 403.201, Florida Statutes.
There is no practicable means known or available for the adequate control of the pollution involved.
Compliance with the particular requirement or requirements from which a variance is sought will necessitate the taking of measures which, because of their extent or cost, must be spread over a considerable period of time.
A variance granted for this reason shall prescribe a timetable for the taking of the measures required.
To relieve or prevent hardship of a kind other than those provides
for in paragraphs 1 and 2 above. Variances and renewals thereof granted under authority of this paragraph
shall be limited to a period of twenty- four (24) months.
The period of time for which the variance is sought, including the reasons and facts in support thereof,
The damage or harm resulting or which may result to applicant from a compliance with such rule or regulations,
The requirements which applicant can meet and the date when applicant can comply with such requirements,
The steps the applicant is taking to meet the requirements from which the variance is sought and when compliance will be achieved,
Any beneficial or adverse
impact to residents and the environment in affected area resulting from the Department's requiring compliance or granting a variance,
The economic or social impacts of granting or denying the variances.
Based upon the foregoing Findings of Fact, it is specifically concluded, as a matter of law, that Petitioner has failed to demonstrate his entitlement to a variance from the requirements of Rule 17-4.28(8)(a), Florida Administrative Code. Accordingly, it is
That a Final Order be entered by the Department of Environmental Regulation denying Petitioner's application for a variance.
DONE AND ENTERED this 1st day of July, 1983, at Tallahassee, Florida.
WILLIAM E. WILLIAMS
Hearing Officer
Division of Administrative Hearings The Oakland Building
2009 Apalachee Parkway
Tallahassee, Florida 32301
(904) 488-9675
Filed with the Clerk of the Division of Administrative Hearings this 1st day of July, 1983.
COPIES FURNISHED:
Jane Heerema, Esquire and
Robert A. Routa, Esquire
217 South Adams Street Tallahassee, Florida 32302
Cynthia Christen, Esquire and William W. Deane, Esquire Department of Environmental
Regulation
2600 Blair Stone Road Tallahassee, Florida 32301
Victoria Tschinkel, Secretary Department of Environmental Regulation
2600 Blair Stone Road Tallahassee, Florida 32301
================================================================= AGENCY FINAL ORDER
=================================================================
STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
B. K. ROBERTS,
Petitioner,
vs. CASE NO. 81-353
STATE OF FLORIDA, DEPARTMENT OF ENVIRONMENTAL REGULATION,
Respondent.
/
B. K. ROBERTS,
Petitioner,
vs. CASE NO. 81-455
STATE OF FLORIDA, DEPARTMENT OF ENVIRONMENTAL REGULATION,
Respondent.
/
K. ROBERTS,
Petitioner,
vs. CASE NO. 81-262
STATE OF FLORIDA, DEPARTMENT
OF ENVIRONMENTAL REGULATION,
Respondent.
/
FINAL ORDER
On July 1, 1983, the Division of Administrative Hearings' hearing officer in the above-styled cases submitted three separate Recommended Orders to the Department of Environmental Regulation (the "Department"). The cases, which were consolidated for the purpose of holding an administrative hearing, involved the Department's proposed denial of both a permit application and variance request, and the issuance of a Notice of Violation. Copies of the Recommended Orders are attached as Exhibits A, B and C, respectively. Petitioner in the permit and variance denial cases and Respondent in the enforcement case, D. K. Roberts (the "Petitioner") filed exceptions to the Recommended Orders in all three cases. All of these exceptions shall be addressed below and this final order shall serve as final agency action with respect to all three cases.
BACKGROUND
Petitioner is the owner of certain property at Alligator Point, Franklin County, Florida. There is an existing oval-shaped canal on Petitioner's property which is connected to the waters of Alligator Harbor by what was at one time a natural tidal creek. The creek has been dredged, but during the early 1970's a plug was placed in the creek. Over a period of years that plug was washed away resulting in a clear connection between the canal and harbor.
In October of 1979, the Department sent Petitioner a warning notice indicating that the Department believed the connection to be illegal.
Petitioner responded by filing an after-the-fact permit application to connect the canal to the harbor and to perform other dredging and filling activities, including dredging a 400 foot long access channel, shoaling a depression in the canal, and replacing two existing culverts in the canal. Since the proposed project was located in Class II waters, approved for shellfish harvesting, the Petitioner also sought a variance from Florida Administrative Code Rule 17- 4.28(8)(a), which prohibits dredging in such waters. The Department proposed to deny both the permit and the variance and issued a Notice of Violation requiring, inter alia, that the connection to the harbor be plugged.
Petitioner has challenged all three actions of the Department.
RULINGS ON EXCEPTIONS
In ruling on Petitioner's exceptions, I note once again the standard for reviewing findings of fact contained in Section 120.57(1)(b)9., Florida Statutes. That section provides that I may not reject a hearing officer's findings of fact unless I determine, after a review of the complete record, that such findings were not based upon competent substantial evidence. Petitioner has filed a number of exceptions to findings of fact.
The exceptions filed in each of the three cases will he addressed separately.
Permit Denial - Petitioner has filed exceptions to three findings of fact in DOAH Case No. 81-455, relating to the Department's proposed denial of a
dredge and fill permit. First, Petitioner takes exception to the hearing officer's finding that the soft organic bottoms present at Alligator Harbor would result in the need for frequent maintenance dredging. petitioner argues that testimony exists to support a finding that bottoms in the area of the proposed dredging are sandy. After a review of the entire record, I must conclude that there is competent substantial evidence to support the hearing officer's finding of fact. There was extensive testimony by a Department witness that the bottoms in the harbor were composed of a soft organic material with high quality sand and that any dredged areas could be expected to fill in quickly. The testimony also indicates that frequent maintenance dredging would be necessary resulting in constant disturbance of the biological system.
Since competent substantial evidence exists to support the hearing officer's finding of fact, I must reject Petitioner's exception.
Petitioner's second exception charges that the hearing officer incorrectly found that there was a potential for pollution of state waters resulting from the installation of septic tanks. The hearing officer's findings of fact on this point are as follows:
At present, 114 lots on Petitioner's property have been platted for single family homes.
Few homes have been built in the subdivision. However, those that have been built have all utilized septic tanks. Although Petitioner does not propose to develop the fill island until a central sewage facility is available, local regulations permit the installation of septic tanks on those lots around the outside perimeter of the inland canal. Petitioner's application, in fact, indicates that septic tanks will be utilized on the outside perimeter, and that those tanks will be placed in the landward 50 percent of those lots.
After a review of the record, I must sustain the hearing officer's findings of fact. It is incontrovertable that Petitioner's permit application called for the utilization of some septic tanks. Petitioner has not sought to modify that application. There is competent, substantial evidence in the record to support the findings of fact relating to septic tank pollution.
Third, Petitioner takes exception to the hearing officer's acceptance of data presented by the Department showing existing levels of dissolved oxygen to be below water quality standards. The thrust of Petitioner's exception appears to be that the data should be rejected since levels below standards might be expected to occur in natural systems. Petitioner's exception provides no basis for rejecting the hearing officer's findings of fact relating to water quality data. The fact that there is testimony that dissolved oxygen levels in natural systems may violate standards does not in any way require rejection of the data accepted by the hearing officer. There is competent substantial evidence in the record that the data are an accurate representation of existing ambient water quality in the canal.
Petitioner also takes exception to the hearing officer's conclusions of law that existing water quality within Alligator Harbor, an Outstanding Florida Water, would be degraded and that water quality standards for Class II waters
would be violated, arguing that these conclusions were based upon the findings of fact concerning septic tanks and dissolved oxygen levels. Since I have accepted the hearing officer's findings on those issues, I must also accept the conclusions of law.
Finally, Petitioner takes exception to the conclusion of law that the Petitioner failed to demonstrate that the project would be clearly in the public interest as required by Florida Administrative Code Rule 17-4.242. In support of his position, Petitioner cites Florida Administrative Code Rule 17-3.011(12) which provides that private activities may be in the public interest. There is no indication, however, in the Recommended Order that the hearing officer based this conclusion of law on the fact that the project was a private activity. The Recommended Order contains a thorough discussion of the various factors asserted by the Petitioner to demonstrate that the project would be clearly in the public interest, such as proposed construction of a public boat ramp and stimulation of the construction industry in Franklin County. The hearing officer analyzed each of these factors and concluded that the Petitioner had not met his burden in affirmatively demonstrating the public interest.
Petitioner inaccurately characterizes the basis for this conclusion of law and I reject his exception.
Variance Denial - Petitioner's first two exceptions to findings of fact in the variance case (DOAH Case No. 81-353) are substantially identical to exceptions filed in the permit denial case. Those exceptions, relating to the need for and impact of maintenance dredging and the pollution potential of septic tanks, have been dealt with above and rejected. They are also rejected for purposes of the variance case.
Petitioner's third exception in the case relates to the hearing officer's acceptance of dissolved oxygen data. Essentially, the Petitioner appears to challenge the relevancy of the data in a variance hearing. It has already been established that there is competent substantial evidence in the record to support the data. To the extent that the Petitioner is challenging the relevancy of the data, I must find that the information is relevant for establishing the factual background. I would note that Petitioner states in his exception that he met the required showing of public interest and there was no practicable means known or available for the adequate control of the pollution involved". In fact, Section 403.201, Florida Statutes, does include a specific public interest test; and it does not appear from the record that Petitioner demonstrated that there was no practicable means of control known or available.
Petitioner takes exception to the hearing officer's conclusion of law that Petitioner is not entitled to a variance.
Before addressing the specific exception, I must clarify a point. Both the Recommended Order and the Petitioner's exceptions suggest that an applicant may be entitled to a variance upon making a particular showing. Section 403.201, Florida Statutes, specifically provides that the Department "in its discretion may grant a variance" (emphasis added). In this respect, a variance is different from a permit which shall be issued when the applicant provides reasonable assurance that the project will comply with all applicable rules and statutes. Obviously the Department could not act arbitrarily or capriciously, or in a manner that would violate the requirements of equal protection; and Petitioner does not allege that the Department acted in such a manner in this case.
With respect to Petitioner's exception, the hearing officer based his conclusion of law that use variance should be denied on the findings of fact contained in his Recommended Order. Upon review of the record, I conclude that these findings adequately address the factors to be considered in a variance proceeding set forth in Florida Administrative Cede Rule 17-1.57, including the need for a variance, the adverse environmental impact that could be expected and the impact on residents of the affected area of granting or denying the variance. Therefore, I reject Petitioner's exception.
Petitioner's last exception to tie variance alleges that the hearing officer did not determine either the Department was acting in a uniform manner in proposing to deny the variance. There is no specific requirement in any statute or rule that the hearing officer make such a determination, and I reject the exception on that point. I would note, however, that even if there were such a requirement, the record contains uncontroverted testimony to the effect that similar applications for variances in the past had been denied.
Notice of Violation - Petitioner first takes exception to the hearing officer's finding of fact regarding dissolved oxygen levels on the grounds that the hearing officer accepted that data "in an attempt to show that respondent's activities caused pollution". In fact, the hearing officer specifically states that while the data establish the existence of violations in the canal, there was no evidence to establish that any discharge from the canal resulted in pollution of the waters of Alligator Harbor. Petitioner also argues that the hearing officer should have found that water quality in the upland canal was no worse than could have been expected in the natural tidal creek and marsh prior to dredging of the canal. The record contains conflicting evidence on this point, and I decline to make an additional finding of fact to that effect. In any event, such a additional finding of fact would not require that the hearing officer's recommendation be rejected.
Petitioner takes exception to the hearing officer's conclusion that the canal system constitutes a stationary installation for which a permit may be required on the grounds that the hearing officer should have found that water quality within the canal approximates water quality to be expected under natural conditions. This exception is rejected for two reasons. First, the hearing officer did not make such a finding and I declined to adopt an additional finding of fact in that regard. Second, the permitting requirements of Chapter 403, Florida Statutes, and the rules adopted thereunder are not based on the actual existence of pollution or on whether a new installation will approximate natural conditions. Permits are required for installations "which will reasonably be expected to be a source of air or water pollution" Section 403.057(1), Florida Statutes. The hearing officer correctly concluded that the canal system in question is a stationary installation within the meaning of that provision.
Finally, Petitioner takes exception to the hearing officer's recommendation that a plug be placed in the canal connecting the upland system to the harbor, citing the existence of a tidal creek connecting the original marsh area to the harbor. What Petitioner overlooks is that that original connection was plugged after the marsh was dredged to create the present canal system. The hearing officer's recommendation calls for restoration of the plug in accordance with a plan acceptable to the Department. Petitioner's exception on this point is rejected.
ORDER
Accordingly, having considered the Recommended Order, the record and pleadings in this case, it is hereby
ORDERED that:
The hearing officer's findings of fact and conclusions of law (as clarified above) in DOAH Cases 81-262, 81-353 and 81-455 are adopted in toto.
Within thirty (30) days from the date of execution of this order, the Petitioner shall submit to the Department's Northwest District Office for approval a plan for restoration of the canal plug and a compliance schedule.
The permit sought by Petitioner to dredge an access canal, place fill in the upland canal and replace existing culverts is hereby denied.
The variance sought by Petitioner the provisions elf Florida Administrative Code Rule 17-4.28(8)(a) is hereby denied.
DONE AND ENTERED this 15th day of August, 1983.
STATE OF FLORIDA DEPARTMENT OF ENVIRONMENTAL REGULATION
VICTORIA TSCHINKEL
Secretary
Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32399-2400
Telephone: (904) 488-4805
FILING AND ACKNOWLEDGMENT
FILED, on this date, pursuant to S. 120.52 Florida States, with the designated Department clerk, receipt of which is hereby acknowledged.
8/15/83
Deborah A. Gatwood Date Clerk
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that true copies of the foregoing Final Order have been furnished by United States Mail to Jane Heerema, Esquire and Robert A. Routa, Esquire, 217 South Adams Street, Tallahassee, Florida 32302 and to William E. Williams, Hearing Officer, Division of Administrative Hearings, Department of Administration, 2009 Apalachee Parkway, Tallahassee, Florida 32301, this 15th day of August, 1983.
MARY F. SMALLWOOD
General Counsel
State of Florida, Department of Environmental Regulation
Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32301
Telephone: (904) 488-9730
| Issue Date | Proceedings |
|---|---|
| Aug. 16, 1983 | Final Order filed. |
| Jul. 01, 1983 | Recommended Order sent out. CASE CLOSED. |
| Issue Date | Document | Summary |
|---|---|---|
| Aug. 15, 1983 | Agency Final Order | |
| Jul. 01, 1983 | Recommended Order | Petitioner was not entitled to variance in Rule 17-4.28(8)(a), Florida Administrative Code, granting right to connect his canal to waters of the state. Recommend denial of petition. |
