STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

LAKE WORTH DRAINAGE DISTRICT, )

)

Petitioner, )

)

vs. ) CASE NO. 83-1741

) 83-2132

STATE OF FLORIDA, DEPARTMENT OF ) ENVIRONMENTAL REGULATION, )

)

Respondent. )

)

RECOMMENDED ORDER

On October 18 and 19, 1983, a hearing was held before Charles C. Adams, a Hearing Officer with the Division of Administrative Hearings. This was a formal hearing under the provisions of Section 120.57, Florida Statutes. This Recommended Order is being entered following the receipt and review of the transcript of proceedings which was filed on November 14, 1983. The parties in the person of counsel have also offered proposed Recommended Orders, the last of which was filed with the Division of Administrative Hearings on December 12, 1983. Those proposals have been considered prior to the entry of this Recommended Order. To the extent that the proposals are consistent with the Recommended Order, they have been utilized. To the extent that the proposals are inconsistent with the Recommended Order, they are rejected as being contrary to facts found, contrary to conclusions of law reached or contrary to the recommended disposition.

APPEARANCES

For Petitioner: Gary Sams, Esquire

Frank Matthews, Esquire Hopping, Boyd, Green & Sams

420 Lewis State Bank Building Tallahassee, Florida 32302

For Respondent: Charles G. Stephens, Esquire

Assistant General Counsel

Department of Environmental Regulation 2500 Blair Stone Read

Tallahassee, Florida 32301 ISSUES

This case involves Petitioner's request for a dredge and fill permit from Respondent pertaining to a proposed canal referred to as S-9, D.O.A.H. Case No. 83-2132. There is a companion request for variance from the dissolved oxygen standard for Class III waters, D.O.A.H. Case No. 83-1741.

FINDINGS OF FACT CASE HISTORY

1. Lake Worth Drainage District requested a variance from the provisions of Rule 17-3.121(13) , Florida Administrative Code, related to dissolved oxygen parameters which would be involved in the installation of a canal known as the S-9 Canal to be located in Palm Beach County, Florida. That request was met by the Department of Environmental Regulation's Statement of Intent to Deny, leading to a request for formal hearing filed by Petitioner with the Department on May 26, 1983. On June 1, 1983, the Department requested the Division of Administrative Hearings to conduct a formal hearing in that matter. The variance request became D.O.A.H. Case No. 83-1741.

   
   

2. Contemporaneous with the variance request that was pending before the Department of Environmental Regulation, was petitioner's request for necessary construction permits to install the S-9 Canal. Again, the Petitioner was informed of the agency's intent to deny that permit request. As a consequence, Petitioner requested a formal hearing to question the Department's policy decision. That request for formal hearing was made on June 23, 1983. Effective July 1, 1983, the Department asked the Division of Administrative Hearings to conduct a formal hearing related to that permit request. The case related to the dredge and fill permit is D.O.A.H. Case No. 63-2132.

   
   

   WITNESSES AND EXHIBITS

   
   

3. In the final hearing, petitioner presented the testimony of Richard Wheeliahn, Assistant Manager for Lake Worth Drainage District; John Adams, General Counsel for Lake Worth Drainage District; Mike Slaton, supervisory biologist with the United States Corp. of Engineers; William Winters, Lake Worth Drainage District's in-house engineer; Rebecca Serra, South Florida Water Management District's Water Management Engineer, who was accepted as an expert in water management engineering; Raleigh Griffis, Agricultural Agent with the United States Department of Agriculture, accepted as an expert in the agricultural practices found within the area of the proposed S-9 Canal; William

   E. Hill, Consulting Engineer for Petitioner, who was accepted as an expert in civil engineering and drainage design; and Robert D. Blackburn, consultant to Lake Worth Drainage District, accepted as an expert in freshwater ecology to include water quality and biology. Respondent called as witnesses Dan Garlick, Environmental Specialist for the Department of Environmental Regulation, accepted as expert in dredge and fill matters; Keith McCarron, Environmental Specialist for the Southeast Branch of the Department of Environmental Regulation, accepted as an expert in dredge and fill matters and Helen Setchfield, Technical Assistant to the Department's Director of the Division of Environmental Permitting. In addition, Richard L. Miller, Rebecca Butts, Francis T. Kuschell, Donald King and Dan alley were public witnesses in favor of the proposed project. Rosa Druando and Sherry Cummings were public witnesses opposed to the project.

   
   

4. Petitioner offered 45 exhibits which have been received. Respondent introduced two exhibits which were admitted. The public offered two composite exhibits which were admitted.

   
   

   SPECIFIC FACTS

   
   

5. Lake Worth Drainage District is a governmental entity created by the Florida Legislature. The District's function is that of the control of water

   supply and elevation related to lands within its jurisdiction. Those areas in dispute in the present case are within that jurisdictional ambit. In this instance, Lake Worth Drainage District has proposed the construction of a drainage facility involving dredging and filling of approximately 45,000 cubic yards of material. In particular, Petitioner seeks necessary permits from Respondent to construct a canal known as the S-9 Canal, whose purpose would be to transport the flow of water from an agricultural operation north of the canal site. Petitioner's Exhibit No. 1 depicts the area in question with the north- south orange tape representing an unnamed drainage ditch or canal and the blue tape showing the proposed S-9 connecting it to the east-west orange tape line which is L23W. The primary type of water expected in the canal is stormwater; however, surface and groundwater will also be in the canal system at times. The agricultural operation is capable of discharging at a rate which would utilize

   145 CFS of the potential capacity of the canal system contemplated for construction which ultimate capacity is 170 CFS. The proposed canal by its connection of the existing agricultural drainage ditch or canal and L23W, becomes part of a water transport system flowing to the Atlantic Ocean through the South Florida Water Management District and Lake Worth Drainage District canal network.

   
   

6. The principal benefit of the construction of S-9 would be to create a uniform connection of water discharge from the agricultural operation into L23W. Secondarily, it would relieve periodic flooding of a residential area west of the unnamed drainage ditch and northwest of the proposed S-9 Canal. It is not designed to receive direct water input from that residential area. Only the agricultural operation has been granted permits to discharge into the unnamed canal through two pumping stations to the east of that canal and as a result of the present permit request through S-9 and thus to L23W. Those persons living in the residential area west of the unnamed canal have not sought necessary permitting for discharge into the proposed S-9 System. Moreover, even if permits were granted to the residents, the S-9 system would only allow the addition of 25 CPS over and above the 145 which the agricultural operation has preempted. The 25 CPS would not satisfactorily address high water problems found in the residential area. A more particular description of the limited value of the project's benefit to the homeowners is that it protects against occasional flooding which occurs when the farm operation discharges into the unnamed canal, causing water incursion in the southeast corner of the residential area to the west of the unnamed canal.

   
   

7. If the S-9 Canal is constructed, it will be built within an 80 foot right-of-way held by petitioner. The canal as depicted in petitioner's Exhibit

   35 admitted into evidence is 40-45 feet wide, approximately 5-8 feet deep and is configured in a u-shape transversing an area of 7,730 feet. The applicants in this present proposal have added a vegetated iittoral zone on one side of the canal and it covers approximately 20 percent or 1.9 acres of the canal surface. This zone affords a limited amount of treatment of the water in the system. In this regard, approximately 30 percent of the nutrients found within the water flowing in the system would be expected to be taken up or absorbed in the vegetational zone, except in the months of August and September, when optimum retention time within the system will not be afforded to allow the littoral zone to uptake 30 percent of contaminants in the water. A 21 foot maintenance berm would be constructed on the east side of the canal and bleeder pipes would be installed to control water elevations in the adjacent wetlands.

   
   

8. The 170 CFS volume mentioned before is the design capacity of the proposed system. At that volume, the flow velocity is less than 2.6 feet per second, a velocity at which the canal's structural integrity would be expected

   to continue, i.e., erosion will not occur. The 145 CFS expected from the agricultural operation pursuant to permits for discharge issued by the South Florida Water Management District would promote a flow velocity of approximately

   2 feet per second. This farm activity is known as the DuBois farm. (Its permit from the South Florida Water Management District allowing the 145 CFS to be discharged into the unnamed drainage ditch or canal is not contingent upon the construction of S-9.)

   
   

9. The configuration of the S-9 Canal has been brought about principally to advantage the Petitioner in obtaining a construction permit from the United States Corps of Engineers. The Corps had an interest in protecting that corridor of land over which it has jurisdiction which is adjacent to the S-9 Canal and is described as a wetland area. A consequence of this choice of design for S-9 is the typical 72 to 80 hour travel time of water introduced into the system providing some settling of pollutants and some assimilation of pollutants within the littoral zone of the canal discussed before.

10..Necessary permits have been obtained from South Florida Water Management District and the United States Corps of Engineers to allow the construction of the proposed project. The configuration of this project takes into account the special concerns of those two agencies. In this sequence of collateral permitting, South Florida Water Management District has been responsible for an examination of stormwater quality considerations in deciding to grant a permit to Petitioner.

1. With the construction of S-9 and connection of the unnamed canal to S-

   9 and thus to L23W, all the waters within that conveyance system become Class III waters of the state in keeping with Chapter 403, Florida Statutes and its associated rules of the Florida Administrative Code. In effect, this is a dredge and fill activity under the Respondent's jurisdiction found in Rule 17- 4.20, Florida Statutes. As such, it becomes a stationary installation which can reasonably be expected to be a source of water pollution of waters of the state by discharge of pollutants into waters of the state as envisioned by Section 403.087, Florida Statutes.

   
   

2. During the construction phase of the canal, water quality degradation can be controlled related to turbidity, transparency and other criteria. Upon connection of the S-9 Canal to L23W and the utilization of that system, problems will be experienced with dissolved oxygen levels and to a lesser extent, nutrients and total coliform. Oils and greases problems are possible though not probable. No other water quality impacts are expected after connection.

   
   

3. In expectation of the difficulty in achieving compliance with Respondent's water quality standards related to dissolved oxygen, the Petitioner has sought a variance under Section 403.021, Florida Statutes. This request is necessary because the dissolved oxygen levels in the proposed S-9 Canal, the unnamed canal or drainage ditch and L23W are not expected to uniformly exceed 5 mg/1. See Rule 17-3.121(13), Florida Administrative Code. The problem with dissolved oxygen in the unnamed canal and L23W and expected in the S-9 canal is not an enigma. This condition is prevalent in the South Florida area to include Palm Beach County, the site of the project. The water in the canals and drainage ditches in the region is frequently in violation of the standards related to dissolved oxygen, given the elevations of the land, climatic conditions, type of plant life, water temperature and constituents of the water. The addition of S-9 to the system would neither improve nor significantly degrade the quality of water related to the dissolved oxygen values for Class III waters, of which this proposed system is constituted. This finding

   acknowledges the fact that dissolved oxygen values in the unnamed canal are superior to L23W. Nonetheless, upon completion of S-9 and connection to the two other canals, no significant positive improvements of dissolved oxygen will be realized. Moreover, considering the fact that the installation of the S-9 Canal will stop the flooding on the southeast corner of the residential area west of the unnamed drainage ditch or canal, an increased volume of water flowing into L23W at any given moment can be expected, compared to the present outfall primarily along the Florida Power and Light system road into L23W. This has significance related to the dissolved oxygen standard to the extent of an increased volume of water in which substandard dissolved oxygen levels are found being introduced into L23W. It is more significant related to nutrients and bacteriological quality of the water, in particular fecal coliform. While there is no reason to believe that the quality of cleansing of water involved in sheet flow into L23W related to nutrients and coliforms is remarkably better at present, given the sparse vegetation along the power-line road which leads to L23W, than would be the case with S-9 with littoral zone, the increased volume of cater being introduced at the connection of S-9 and L23W during times of peak discharge, can be expected to present greater quantities of nutrients and coliform. In essence, the treatment afforded by the littoral zone and the transport in the S-9 Canal, contrasted with the treatment afforded during the transport of waters by sheet flow along the relatively barren stretch of land adjacent to the power-line road is found to be comparable, and the differences relate only to volume of discharge. This difficulty with nutrients and coliform count has been confirmed by tests made in the unnamed canal showing excessive levels of nitrogen, phosphorus and coliform and the water treatment features of the S-9 Canal will not entirely remove these materials. Although the farming practices of the DuBois operation tend to alleviate some nutrient loading in the unnamed canal, the test results established that those practices do not entirely eliminate the introduction of those nutrient materials into the canal.

   Consequently, some problems related to the effects of nutrient loading on populations of flora and fauna in the proposed system can be expected.

   
   

4. In the context of the variance request, alternatives to the construction of the S-9 Canal are here considered. The alternative to leave the circumstance as it now exists carries with it the risk of periodic flooding of the southeast corner of the residential property west of the unnamed canal.

   That area and the balance of the residential acreage are subject to flooding without regard for the agricultural operation to the east. To deal with the difficulty related to the elevated water table, rainfall events and the flooding due to farm operation, some persons who reside in that residential tract have employed their own pump systems and ditches and retention areas to combat problems related to the geography of their property. In addition, the property is protected to some extent from outside influences by the existence of a dike and associated ditch, which limit some off-property incursion of water and assists to an extent in the transport of water away from their property.

   Moreover, the DuBois farm operation recently has placed a barrier at the end of the unnamed canal which directs water south along the Florida Power and Light road into L23W. In addition, the farm management has held down the pump speed during a rain event to protect the residential area. Nonetheless, at times the dike in the southeast corner adjacent to the residential property has breached in heavy rain events. As an alternative, the installation of S-9 would be only partially effective in alleviating the adverse conditions in the residential area west of the unnamed canal. It principally helps the DuBois farm operation. The relief afforded the residents would be the cessation of flooding caused by the operation of the farm pumps to the east as they breach the area in the southeast corner of the residential property, the future possibility of introducing as much as 25 CFS into the S-9 System subject to appropriate permits

   and the more tenuous possibility that the farm operation and the residential area could share the remaining 145 CPS capacity in the proposed system. The latter point isn't tenable from an examination of testimony at hearing. First, because the farmer wishes to conserve fertilizer and to maintain the moisture gradient and he does this by pumping off stormwater in a rainfall event, which events are most prevalent during his agricultural season. Secondly, the residential area is most in need of relief when the farmer is. Finally, the question of necessary permits to share capacity is unclear. Other alternatives related to a more comprehensive protection of the residential area by diking, a direct connection canal system to L23W from the unnamed canal, or dispersed sheet flow through the wetland area adjacent to the proposed S-9 Canal are not viable either for reason of design infirmity or impediments from other permitting agencies or inadequate property rights. Therefore, the viable choices are to either leave the property as it now stands or grant a permit to allow the construction of S-9.

   
   

5. Between the remaining choices, no particular advantage is gained by the construction of this project. Dissolved oxygen problems in L23W, the receiving body of water, will not improve with the S-9 construction in a significant way and given the increased volume of discharge into L23W promoted by this construction are made worse. Nothing in the construction is so compelling to cause the exercise of the Respondent's discretion in favor of the grant of a variance related to dissolved oxygen values.

16..In examining the variance request by affording deference to Petitioner's regulatory responsibility, the need of the Lake Worth Drainage District to provide relief to those residents who are paying for drainage services is conceded. To that end, the proposed project does provide a certain amount of relief but it does not have as its primary emphasis purported assistance to those residents. As often stated, its principal benefit is to the DuBois farm operation. Left unresolved is the major source of suffering which is the lay of the land, a source which has prevailed from the beginning of the utilization of that property on the part of the residents. Plainly stated, much of the residential area was from the beginning and continues to be under water. The removal of the farm flooding and the future possibility of introducing a small increment of discharge into the S-9 system from the residential area subject to necessary permitting does not modify the characterization of this project as being one primarily for the farmer and to a much lesser extent for the residents. On this occasion, Petitioner's choice to fulfill its change is not persuasive enough to create special permission to violate the dissolved oxygen standard.

1. In summary, a variance from the dissolved oxygen standard for Class III waters is not indicated. On the question of the permit application, in addition to failing to give reasonable assurances related to dissolved oxygen, the applicant has failed to satisfactorily address the problems with nutrients and coliforms. Other water quality standards have been satisfactorily addressed.

   
   

2. Again, most of the water that will be introduced into the proposed system shall be stormwater; however, there will be other water components in the system constituted of surface water an groundwater, which also carry nutrients arid bacteriological deposits. Surface and groundwater are involved, given the level of elevations in the area, the depths of the unnamed canal, S-9 Canal and L23W and the fact that the DuBois farm operation can extract waters from the E-l Canal to the east of the farm properties as well as discharge water into that canal. It will not always be possible to distinguish whether the water in the

   proposed system is stormwater, groundwater or surface water. Consequently, South Florida Water Management's permitting related to stormwater is not definitive.

   
   

   CONCLUSIONS OF LAW

   
   

3. The Division of Administrative Hearings has jurisdiction over the subject matter and the parties to this action. See Subsection 120.57(1) , Florida Statutes.

   
   

4. Ruling was reserved on the admission of petitioner's Exhibit No. 40. Upon consideration of the argument of counsel, that exhibit is admitted.

   
   

5. In considering the responsibility for permit review granted to the Department of Environmental Regulation, the basic idea of dredge and fill permit authority is as announced in Section 403.087, Florida Statutes. To satisfactorily prove its entitlement to the permit, Petitioner must give the necessary reasonable assurances as contemplated by Rule 17-4.07, Florida Administrative Code and more particularly, related to water quality criteria of the Department found in Chapter 17-3, Florida Administrative Code, per Rule 17- 4.28, Florida Administrative Code. While the excavation of S-9 will not promote water quality problems, upon completion of the excavation and connection of the unnamed canal, S-9 Canal and L23W Canal, water quality problems can be expected. That occurrence can be examined as an aspect of the dredge and fill permit review related to construction without regard for the agency's failure to require an operating permit on this occasion or the agency's ability to take enforcement action related to violation of water quality standards announced in Chapter 17-3, Florida Administrative Code. In this instance, those water quality parameters related in Chapter 17-3, Florida Administrative Code, on the topics of dissolved oxygen, bacteriological quality, i.e., total coliform bacteria and nutrients, reasonable assurances have not been given against a violation of these standards. Otherwise, reasonable assurances have been given related to excavation and connection related to those water quality criteria announced in Chapter 17-3, Florida Administrative Code. Having failed to give reasonable assurances in this matter related to those select criteria, Respondent is not entitled to the dredge and fill permit requested.

   
   

6. One of the classes of water within the proposed system constituted of the unnamed canal, 5-9 and L23W is stormwater. Stormwater is defined in Rule 17-25.02(1) Florida Administrative Code, as being "The flow of water into surface waters which results from, and occurs immediately following, a rainfall event." Responsibility for consideration of the water quality of "stormwater" has been delegated by Respondent to the South Florida Water Management District pursuant to Department of Environmental Regulation Final Order No. 82-0023 and an operating agreement. The breadth of this designation is identified in Rule 17-25.09(4), Florida Administrative Code.

   
   

7. In effect, the Water Management District has been given the authority to examine water quality impacts related to stormwater discharge, except in those instances of dredging and filling, wherein that activity generates or allows for the discharge of stormwater, either in the construction phase or in the phase of utilization of the installation resulting from the dredging and filling. On this occasion, while the South Florida Water Management District had the authority to examine stormwater impacts "in the main, the fulfillment of that responsibility is not a bar to the Department of Environmental Regulation's opportunity to examine the constituents of stormwater, as well as surface and groundwater, upon connection to waters of the state and becoming part of those

   waters, if that eventuality is the result of dredging and filling. A dredge and fill permit has been requested pursuant to Rule 17-4.28, Florida Administrative Code, and a connection is contemplated between the unnamed canal, S-9 and L23W, which latter water body is currently Class III waters of the state. This grants DER jurisdiction to consider storm water impacts in these newly created Class III waters of the state.

   
   

8. In the alternative, if Rule 17-25.09(4), Florida Administrative Code, and the delegation arrangement contemplate that water quality impacts other than at the point of excavation related to stormwater are the responsibility of the review of the South Florida Water Management District as opposed to the Department of Environmental Regulation, then DER still would have permit authority. That authority exists because not all waters in the system would be stormwater. Some components would be surface water and groundwater. In this scenario, although stormwater permitting had been achieved, other water quality permit considerations are not foreclosed by actions of the South Florida Water Management District. The waters in the system, once constructed, are constituted of stormwater, surface water and groundwater. There being no indication that those classifications can be segregated for consideration of their impacts, those types of waters must be considered in a consolidated review by DER.

   
   

9. Petitioner has sought a variance from the dissolved oxygen standard set forth in Rule 17-3.121, Florida Administrative Code. The variance request is made pursuant to Section 403.201, Florida Statutes and Rule 17-l.57, Florida Administrative Code. To meet the requirement of proof to obtain the variance from the dissolved oxygen standard, the Petitioner must show entitlement based upon one of the enumerated reasons set forth in the variance statute. Those reasons being:

   
   

   1. There is no practicable means known or available for the adequate control of the pollution involved.

   2. 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 time table for the taking of the measures required.

      
      

      Section 403.021, Florida Statutes.

      
      

10. Applicant has requested this variance only on the basis of the assertion that there is no practicable means known or available for adequate control of the pollution involved. The choices available to the Petitioner were to leave matters as they presently are constituted in the area in question, construct S-9, or consider other alternatives discussed in the findings of fact. Those other alternatives were not deemed viable, therefore, the choice was between the circumstance as it now exists and the project as proposed. Given the fact that the project as proposed does not do a better job of dealing with

the problem of dissolved oxygen than is now present, the status quo is a better choice in dealing with the effects of low dissolved oxygen occurrences. In summary, notwithstanding agency practice in the past of granting a variance related to the dissolved oxygen standard, this project does not warrant the grant of such variance.

Based upon a full consideration of the facts found and the conclusions of law reached, it is,

RECOMMENDED:

That a final order be entered which denies the dredge and fill permit application and the request for variance related to the dissolved oxygen standard.

DONE and ENTERED this 14th day of February, 1984, in Tallahassee, Florida.

CHARLES C. ADAMS

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 14th day of February, 1984.

COPIES FURNISHED:

Charles G. Stephens, Esquire Department of Environmental Regulation Twin Towers Office Building

2600 Blair Stone Road Tallahassee, Florida 32301

Victoria Tschinkel, Secretary Department of Environmental Regulation Twin Towers Office Building

2600 Blair Stone Road Tallahassee, Florida 32301

Gary Sans, Esquire Frank Matthews, Esquire

Hopping Boyd Green & Sans

P.O. Box 6526

Tallahassee, Florida 32301

Docket for Case No: 83-001741

Orders for Case No: 83-001741