STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

GILLIS-FANNY SOCIETY, INC., )

)

Petitioner, )

)

vs. ) CASE NO. 82-1432

) JOYCE K. ANDERSON, THOMAS BARNETT ) and DEPARTMENT OF ENVIRONMENTAL ) REGULATION, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, this cause cane on for administrative hearing before P. Michael Ruff, duly designated Hearing Officer of the Division of Administrative Hearings on April 11, 1983, in Gainesville, Florida. The appearances were as follows:

APPEARANCES

For Petitioner: Tim Keyser, Esquire

Post Office Box 92 Interlachen, Florida 32048

For Respondent: Dennis R. Erdley, Esquire

Department of Environmental Regulation 2600 Blair Stone Road

Tallahassee, Florida 32301

Joyce K. Anderson and Thomas Barnett, pro se

6216-B, Southwest 11th Place Gainesville, Florida 32601

This cause concerns a petition filed by the Gillis-Fanny Society, Inc., a Florida Corporation lot for profit, challenging the Department's intent to issue a permit to Joyce K. Anderson and Thomas Barnett to dredge and fill an area in the littoral zone of Gillis Pond. Gillis Pond is a small freshwater lake located in the sandhill region of Central Florida, roughly northeast of Gainesville. The proposed dredging and filling is to occur on and in front of two lakefront lots jointly owned by the Respondents. The initial application requested authorization to dredge and fill two separate areas located on these two plots of land each to measure 15 by 25 feet, straddling the shoreline. The permit applicants then modified their application to request authorization instead to dredge and fill only one such site, reduced in size to 12 by 25 feet. Because of the amendment of the application, the Department altered its position and notified all appropriate parties of its intent to issue a permit. The Petitioner then timely proceeded to exercise its rights pursuant to Section 120.57(1), Florida Statutes (1981). At the hearing the Permit

Applicant/Respondent, Joyce K. Anderson, presented one witness, herself. In support of the application, the Department presented the testimony of Jeremy Tyler, Tim Deuerling, and David Scott. The Petitioner presented the testimony of Sidney Brinson, Mary Kay Leslie, Melvin Earl Lehman, Thomas Lee Morris and Vincent S. Luca. Petitioner's Exhibits A and B were received into evidence and Respondent's Exhibits 1 through 8 were received into evidence.

A transcript of the proceedings was filed on August 8, 1983. The parties have submitted proposed findings of fact and conclusions of law. All proposed findings of fact, conclusions, and supporting arguments of the parties have been considered. To the extent the proposed findings and conclusions submitted by the parties, and the arguments made by them, are in accordance with the findings, conclusions and views stated herein, they have been accepted; and to the extent that such proposed findings and conclusions of the parties, and such arguments made by the parties, are inconsistent therewith, they have been rejected. Certain proposed findings and conclusions have been omitted as not relevant or as not necessary to a proper determination of the material issues presented. To the extent that the testimony of various witnesses is not in accord with the findings herein, it is not credited.

FINDINGS OF FACT

1. Joyce K. Anderson and Thomas Barnett have filed an application for issuance of a permit to dredge and fill a small area in the littoral, or "near shore," zone of Gillis Pond, a "sandhill lake" lying in what is known as the "sandhill region" of Central Florida, generally northeast of Gainesville. The dredging and filling as now proposed would be on and waterward of two lakefront lots jointly owed by the permit applicants. They seek by their application, authorization to dredge and fill at only one site on the waterward margin of the two lots with that modified project area reduced in size to a dimension of 12 feet by 25 feet. Fifteen feet of the project would be waterward of the shoreline.

   
   

2. The Respondent, the Department of Environmental Regulation, is an agency of the State of Florida charged with the duty of enforcing, as pertinent hereto, the provisions of Chapter 403, Florida Statutes, and Chapter 17-3 and 4, Florida Administrative Code, enforcing the water quality standards contained therein as they relate to dredge and fill projects of this sort, with concomitant permitting jurisdiction over such projects.

   
   

3. The permit applicants desire this dredge and fill permit in order to make a safe, comfortable swimming area for Mrs. Anderson's family and friends. Mrs. Anderson desires to remove the tree stumps, roots and vegetation existing in the littoral zone area of the above dimensions in order to make access directly from the shore more comfortable and pleasant, especially for small children who are unable to swim in the deep water off the waterward end of the existing dock. Mrs. Anderson already has a 56 foot dock extending from her property into the lake. The water is 7 feet deep at the waterward end of the dock and the littoral zone containing aquatic vegetation extends beyond the length of the dock in a waterward direction. The project area would extend waterward of the shoreline, a distance of 15 feet, and would parallel the shoreline approximately a distance of 12 feet. The littoral zone vegetation at the site, however, extends waterward from the shoreline 50 to 60 feet.

   
   

4. The proposed area to be dredged is quite small in size in relation to the total linear shoreline of the subject lake of approximately 4,000 feet. The dredged material would be excavated to a depth of approximately 6 inches over

   that 12 by 15 foot area and replaced with clean sand fill. The dredged material removed from the site would be secured on an upland site such that nutrient pollutants from that dredged material could not be leached or carried back into the lake through storm water runoff.

   
   

5. Approximately one-third of the shoreline of the lake is bordered by a marsh or wet prairie which is approximately as large in area as the lake itself. The dominant vegetative species in the project area and surrounding the lake, including the marsh, are submerged freshwater species listed in Rule 17- 4.02(17), Florida Administrative Code, including maidencane, sawgrass and a rare aquatic plant, websteria confervodies.

   
   

6. Gillis Pond is a Class III water of the state, although its water quality parameters, or some of them, clearly exceed in quality, the minimum standards for Class III waters. Gillis Pond is what is termed an "ultra- oligotrophic lake, which means that its waters are characterized by a high level of transparency and very low nutrient content, that is to say that they are essentially pristine in nature. An oligotrophic lake such as this is very sensitive to any addition of nutrient pollutants. Even a small addition of nutrients to such water can cause an imbalance in the fauna and flora which have evolved to become dependent upon a low nutrient aquatic environment. Specifically, the rare aquatic plant named above is very sensitive to any enhanced nutrient levels and thus serves as a barometer of the water quality in this body of water. The addition of any nutrient pollutants to the lake, even in small amounts, might alter the chemical balance of the water in a derogatory manner so that the websteria confervodies might be eliminated. The elimination of this species from the littoral zone vegetation band surrounding the lake would likely result in other forms of vegetation supplanting it, altering the balance and makeup of the community of fauna and flora native to the lake and possibly hastening the progress of the lake toward eutrophication and degradation.

   
   

7. The present water quality in the lake is such that dissolved oxygen and other criteria are better than the Class III water quality standards. The vegetation in the littoral zone of the lake and extending out as much as 50 to

   60 feet waterward performs a significant function in uptaking and fixing nutrient pollutants that wash into the lake from storm water runoff from the surrounding uplands. Inasmuch as 30 to 40 feet of this belt of littoral zone vegetation would remain waterward of the dredged and filled area if the permit is granted, the nutrient uptake function of the vegetation in the littoral zone would not be significantly degraded. There are two locations where littoral zone vegetation has been removed in a similar fashion and water quality and flora and fauna communities characteristic of an oligotrophic lake are still present and healthy. Further, there is an extremely low nutrient level in the lake at the present time, and no significant amount of nutrient pollutants are leached or washed into the lake through septic tanks, storm water runoff or other sources.

   
   

8. There is no question that the project as proposed would result in some slight, transitory degradation of water quality in the form of increased turbidity and reduced transparency. Turbidity will be caused during and shortly after the dredging and filling operation itself, caused by stirring up of bottom peat or sediments and by removal of a 12 by 15 foot area of aquatic vegetation in the littoral zone of the lake. Turbidity curtains in still waters such as involved here, can substantially reduce the spread of turbidity caused by the stirring up of bottom material and can substantially reduce the period of its suspension in the water by containing it at the dredged site. The vast majority

   of the littoral zone vegetation surrounding and waterward of the area to be dredged will remain such that the nutrient uptake function will be essentially undisturbed, thus any adverse impact on water quality will be insignificant. In terms of cumulative effect of allowing a multiplicity of such projects, not even a 10 percent loss of the littoral zone band of vegetation in the lake, which would be the maximum possible loss if all riparian land owners were allowed a similar size dredged and filled area on the front of their lots, would cause a violation of Department water quality standards. Parenthetically, it should be pointed out that such riparian owners cannot be prevented by any water quality criteria in Chapter 403 or Chapter 17, Florida Administrative Code, from having access to the lake in front of their lots. Such human traffic will have the gradual affect of destroying a significant amount of the littoral zone vegetation on and waterward of those lots (which is a cause and result the Department is powerless to regulate). By confining the destruction of littoral zone vegetation to such a small area as that involved in the application at bar and thus guaranteeing adequate, comfortable access for the riparian owner, the survivability of the remaining critical littoral zone vegetation will be significantly enhanced.

   
   

   CONCLUSIONS OF LAW

   
   

9. The Division of Administrative Hearings has jurisdiction over the subject matter of and the parties to this proceeding. Section 120.57(1) Florida Statutes (1981)

   
   

10. Subsection 403.031(2), Florida Statutes, defines "pollution," as pertinent hereto, as the presence in state waters of man-induced alteration of the chemical or biological integrity of such waters in a manner potentially harmful to animal or plant life or property, or unreasonably interferes with the enjoyment of life or property, including outdoor recreation.

    
    

11. Subsection 403.087(1)(4), provides as follows:

    
    

    1. No stationary installation which will reasonably be expected to be a source of air or water pollutants shall be operated, maintained, constructed, expanded, or modified without an appropriate and currently valid permit issued by the department, unless exempted by department rule.

       
       

12. Subsection 403.088(1), Florida Statutes, provides as follows:

    
    

    1. No person, without written authorization of the department, shall discharge into

       waters within the state any waste which, by itself or in combination with the wastes of other sources, reduces the quality of the receiving waters below the classification established for them.

       
       

13. The pertinent Class III water quality criteria are contained in Rule 17-3.121(7), (14), (20) and (28), Florida Administrative Code, which provides pertinently as follows:

    
    

    (7) Biological Integrity - the Shannon- Weaver diversity index of benthic

    macroinvertebrates shall not be reduced to less than 75 percent of established background levels.

    * * *

    (14) Dissolved Oxygen - in predominantly fresh waters, the concentration shall not be less than 5 milligrams per liter . . . .

    * * *

    (20) Nutrients - in no case shall nutrient concentrations of a body of water be altered so as to cause an imbalance in natural populations of aquatic flora and fauna.

    * * *

    (28) Transparency - the depth of the compensation point for photosynthetic activity shall not be reduced by more than 10 percent compared to the natural background value.

    
    

    Additionally, the general surface water criteria of Rule 17-3.061 provides that turbidity "shall not exceed 50 Jackson units above natural background "

    
    

14. The dominant vegetative species in the project area are those freshwater submerged species named above and enumerated in Rule 17-4.02(17), Florida Administrative Code. There is no dispute that the littoral zone area involved herein is within state waters as defined in that rule, and thus within the Department's jurisdiction.

    
    

15. Rule 17-4.28(3), Florida Administrative Code, provides:

    
    

    (3) The applicant for a dredge and/or fill permit or federal certification for a dredging and/or filling activity shall affirmatively provide reasonable assurance to the Department that the short-term and long-term effect of the activity will not result in violations of the water quality criteria, standards, requirements and provisions of Chapter 17-3, Florida Administrative Code. . . .

    
    

    The testimony and evidence adduced by the Department and the permit applicants is preponderant in establishing that, because of the small size of the proposed dredge and fill project and because the dredged area will leave undisturbed some

    30 to 40 feet of the littoral zone aquatic vegetation waterward of the site, which will still perform its nutrient assimilation function, the water quality standards for Class III waters such as this will not be violated. Turbidity curtains in still lake waters such as this were established to be an effective means of limiting adverse effects of turbidity caused by silt placed in suspension by the dredging activity and its potential transportation away from the site to surrounding portions of the lake. A grant of the permit should be conditioned upon turbidity curtains being used around the proposed dredge and fill site during the dredge and fill activity itself and for a reasonable time thereafter until the turbidity or siltation has settled out to the bottom once again. Although it was shown that even with the removal of one plant, some negative impact on water quality occurs; that is not to say that violation of the above standards will be caused by this project and indeed, because of the vast amount of littoral zone vegetation remaining intact on both sides as well

    as waterward of the dredged area (which dredged area will only be 6 inches below the present water bottom), it was not demonstrated that water quality standards will be violated by merely removing the plants and 6 inches of bottom substrate in such a small area.

    
    

16. While it is true that the subject lake is oligotrophic very low in nutrient pollutants and generally of pristine quality, it was not shown that dredging of a small area of the nutrient-fixing vegetation would cause any significant harm to the quality of the water. There was no showing that any source of nutrient pollutants from the uplands surrounding the lake is likely to degrade to any significant degree, the water quality in the lake merely because of the event of the removal of the aquatic plants in a 12 foot by 15 foot area of the bottom, coupled with excavation of some 6 inches of the soil and the replacement of it with clean sand fill.

    
    

17. The Petitioner's witnesses uniformly testified that in such an oligotrophic lake that any activity in the littoral zone would potentially impact and would degrade water quality, even the removal of one aquatic plant. That is undoubtedly true, however, the degradation of water quality, if not accompanied by a violation of the water quality standards contained in Chapter 17-3, Florida Administrative Code, and referred to in Rule 17-4.28(3), Florida Administrative Code, above, is not a basis for denial of the permit.

    
    

18. The Petitioner's witness, Sidney Brinson, demonstrated that continued use of specific locations in the littoral zone of a lake would eventually lead to destruction of the aquatic vegetation, in that area. The applicant established that her family and friends would use the littoral zone frequently as a means of access to the lake. That being the case, and given the Department's lack of authority to prohibit riparian owners from reasonably using the littoral zone of a lake on the front of their property, including cutting vegetation, unless that activity falls within the definition of dredging or filling, the type of access point proposed by the applicants will have the effect of confining pedestrian traffic largely to that small area. Thus, the deleterious effects on the littoral zone vegetation can at least be confined to a reasonable, 12 by 15 foot, point of access through the littoral zone to the waterbody, significantly reducing the harm to surrounding biota and lake bottom. In short, the permit applicants have provided affirmative, reasonable assurances that the water quality standards for Class III waters contained in Chapter 17-3, Florida Administrative Code, will not be violated by a dredge and fill operation of the restricted scope proposed, especially if the turbidity curtains referred to above are installed. In the face of that showing, the Petitioner's witnesses, although well-qualified to testify to the impact of such activities on relatively pristine waters of this nature, nevertheless failed to establish that the dredge and fill project of the limited scope proposed would violate any of those water quality standards. Florida Department of Transportation v.

J.W.C. Company, Inc., 396 So.2d 778, 788, 789 (Fla. 1st DCA 1981)

RECOMMENDATION

Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence in the record and the candor and demeanor of the witnesses, it is, therefore

RECOMMENDED:

That the application of Joyce K. Anderson and Thomas Barnett for a dredge and fill permit as described in the modified and amended application be GRANTED;

provided, however, that turbidity curtains are used during all dredging and filling activity and for a reasonable time thereafter until turbidity caused by the project has settled out of the water column.

DONE and ENTERED this 26th day of September, 1983, in Tallahassee, Florida.

P. MICHAEL RUFF, 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 26th day of September, 1983.

COPIES FURNISHED:

Tim Keyser, Esquire Post Office Box 92

Interlachen, Florida 32048

Dennis R. Erdley, Esquire Department of Environmental

Regulation

2600 Blair Stone Road Tallahassee, Florida 32301

Joyce K. Anderson and Thomas Barnett

6216-B, Southwest 11th Place Gainesville, Florida 32601

Victoria Tschinkel, Secretary Department of Environmental

Regulation

2600 Blair Stone Road Tallahassee, Florida 32301

Docket for Case No: 82-001432

Orders for Case No: 82-001432