STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

VICTOR T. CHENEY, )

)

Petitioner, )

)

vs. ) CASE NO. 83-2314

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

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a hearing was held in this case before Arnold H. Pollock, a Hearing Officer with the Division of Administrative Hearings, it: Fort Walton Beach, Florida, on October 31, 1983. The issue for consideration was whether Petitioner's request for a permit to dredge and fill his land located outside of Portland, Florida, should be granted.

APPEARANCES

For Petitioner: Victor T. Cheney, pro se

374 Gardner Drive

Fort Walton Beach, Florida 32548

For Respondent: E. Gary Early, Esquire

Department of Environmental Regulation 2600 Blair Stone Road

Tallahassee, Florida 32301 BACKGROUND INFORMATION

On January 24, 1983, Petitioner, Victor T. Cheney, submitted an application to the Florida Department of Environmental Regulation requesting permission to remove beaver dams, undergrowth, roots and accumulated detritus from the upper end of Goodwin Creek, located on his property outside of Portland, Walton County, Florida. After some contact between the parties, which included an initial notice of intent to deny because the application was incomplete, a subsequent amended application and further intercourse, on July 12, 1983, Respondent's District Manager, Robert V. Kriegel, issued a letter of intent to deny Petitioner's application. Thereafter, on July 18, 1983, the Petitioner submitted a request for an administrative hearing to the Secretary of the Department of Environmental Regulation (DER)

At the hearing, Petitioner testified in his own behalf and submitted Petitioner's Exhibits A through H. Respondent introduced the testimony of Clifford S. Rohlke and W. Richard Fancher and introduced Respondent's Exhibits 1 through 3.

FINDINGS OF FACT

1. Petitioner in this matter is Victor T. Cheney, who owns the property in question described as Section 7, south quarter, southeast quarter of northwest quarter of Township 1 South, Range 19 Nest, located near Portland, Walton County, Florida. The property consists of approximately 15 acres and is located

   300 to 400 feet south of State Road 20 in Walton County. Respondent is the State of Florida, Department of Environmental Regulation.

   
   

2. Several years ago, Petitioner purchased considerable property located on either side of Goodwin Creek, a tributary of Alaqua Creek, which enters into Alaqua Bayou, which in turn empties into Choctawhatchee Bay, which itself enters into the Gulf of Mexico. The property in question was not a part of the original purchase.

   
   

3. At some point in the not-too-distant past, Petitioner sold a portion of his property downstream from the instant property to a real estate developer for the purpose of residential subdivision. However, because of the fact that Goodwin Creek, over the years, has been blocked by numerous Beaver dams, the surrounding land has become waterlogged and did not afford reasonable access to the property previously sold for residential subdivision. As a result, Petitioner was forced to purchase the property in question here for the purpose of restoring the proper flow of Goodwin Creek by removal of the dams and draining of the swamp, thereby affording reasonable access to the downstream residential property.

   
   

4. Petitioner's position is contained in three major thrusts: the first dealing with trees and forestation, the second dealing with water quality, and the third with the constitutionality of the DER action.

   
   

5. The property in question, according to the Petitioner, was initially forestland. However, subsequent to World War II, because of the lumbering-off of what was once virgin forest, as evidenced by surveyors notes dating from 1848 and 1896, beavers were brought in by governmental agencies at Eglin Field during World War II to help control erosion problems. Because the beavers natural enemies, such as wildcats and alligators, have been reduced in number in later years to the point that they are no longer effective in maintaining the beaver population and because beavers proliferate quickly and are hard to control, the beaver population has gotten out of hand. The City of Fort Walton Beach has within recent years engaged in a war with the beavers because of the latters' incursion into the city limits and the destruction they have caused to trees within the city.

   
   

6. Beavers, which build dams and flood the land, resulting in a die-off of first the pines and then the tupelos and other hardwoods, are the last attack on the virgin forests of northwest Florida. Other enemies which have taken their toll of the trees during the past years are lumbering, insects, disease and hurricanes.

   
   

7. Petitioner wants to reforest the beaver area with loblolly and slash pine. These trees are the dominant forms necessary for a healthy ecosystem, and they provide food and shelter for various birds, some species of which have become extinct because of the loss of trees in the area. Other species are endangered, such as certain types of woodpeckers. Some species of birds need up to 100 acres per family in order to survive. Petitioner wants to plant trees that are productive clients for the local economy. Conifers are the most valuable wood product in this area; and in Petitioner's opinion, the best tree

   there is for the area in question is the pine tree. Petitioner contends that 20 percent of the land in Walton County, Florida, is in private hands, and the county is poor in forestland. There is too much hardwood, which is of poor quality, and not enough pine, and pine is what he intends to plant in the area if he is permitted to drain it.

   
   

8. Turning to the area of water quality, Petitioner urges that the beaver activity has left Goodwin Creek stagnant, without clear headwaters. The area in question contains some SO acre feet of standing water. As a result of beaver activity, the area is plagued with silting, an invasion of saltwater and a putrefaction by sunshine in the summer, and a scum on top of the water. At the bottom of the water is a stinking white globular mass which lies below the freshwater on top. The beaver dams build up swamps behind them, not lakes. Goodwin Creek contains Class III waters which, according to Petitioner, must be maintained in a quality sufficient to sustain body contact (bathing and skiing)

   . These activities cannot be done in the water as it stands now. If permitted to drain the swamp and clear out the beaver dams, Mr. Cheney claims that the water quality will be improved, contra to the state claim that it would he degraded. He contends that the flushing action resulting from his clearing of the creek will clear and improve the water quality both there and downstream.

   The predominant fish in the water in the area now is the needlenose gar, which can live in the water as it is now. Those fish are a pest and have no food value. They eat better fish; and their eggs, according to Petitioner, are poisonous. The young gar eat fish that eat mosquito larvae. If the creek is cleared, the gar will clear out and better fish will return.

   
   

9. Another purpose of clearing the creek would he to remove the threat to the road and the residential lots downstream because of the constant danger of road washout and the plugging of the drainage culvert by beavers. Removal of the beaver dams would reduce run-over flooding.

   
   

10. Petitioner contends his desire is to remove the dams and clear the creek. Yet, the two drawings submitted with his Petition and Amended petition reflect considerably more than merely the clearing of dams. In the first drawing submitted, Petitioner proposed to dig a 30-foot-wide drainage ditch to a depth of 4 feet, running across a portion of the property, using the material excavated from the ditch to build up the area to the north of the ditch and west of the west branch of Goodwin Creek, thereafter planting 15,000 pine trees in the filled area.

    
    

11. Petitioner offered no evidence in the form of water quality studies, or forester or reforestation reports from experts in the area. His evidence consisted primarily of newspaper articles, maps, photographs, historic documents and other documents submitted to him by the State. There was no hard evidence to support the allegations of benefit or the contentions as to forestation or water quality as contained in his narrative testimony which included, coincidentally, a rendering of Joyce Kilmer's poem "Trees."

    
    

12. On the other hand, Respondent presented the testimony of Clifford S. Rohlke, a dredge and fill field inspector with a background in biology who for 9 years has made biological impact assessments on approximately 1,000 dredge and fill applications throughout the State. Mr. Rohlke was first brought into this case when Petitioner's original application was filed. He went out and looked at the site in section, meeting with Petitioner later, and together they walked the site for a second time. As a result of his inspection, he wrote the biological field report, which outlines the impact of the proposed project.

13. He described the area as rural, floodplain land of the Alaqua Creek basin, which has been subject to numerous fill violations for housing adjacent to the bay and Little Alaqua and Goodwin Creeks. The creek basin in question regularly floods once or twice per year, and much of the land has standing water supporting cypress, tupelo hardwood swamp. The specific site is an inundated hardwood swamp. Overstory vegetation includes black gum, red maple and titi. Submerged and emerging vegetation includes various grasses, moss, water lily, dollar weed and duckweed. The proposed canal and its spoil areas are typically inundated with water In fact, the surface water sheet flows westward around numerous islands and buttresses through various small creek channels intermittently located throughout the wetland area. There is only one piece of upland property in Petitioner's entire parcel which is located to the south of the proposed project area. This particular portion is small and is isolated on three sides by the surrounding basin.

    
    

14. As a result, Mr. Rohlke considered the area to be wetlands because of contiguous waters which run up to and flow into Goodwin Creek. There are pools and rivulets throughout the property. He saw three beaver dams, most of which had been breached already; and it is his contention that even if the dams are removed, the water will not dry up naturally because it is historically bona fide wetlands, a low, low area which could not be dried up without a lot of fill. Consequently, this evidence supports a finding that the area in question is in fact a historical wetland, was such before the advent of the beavers, and even the removal of the beaver dams would not radically change the nature of the property to convert it into uplands, thereby taking it outside the jurisdiction of the Respondent.

    
    

15. Having thus concluded that the property in question is a historical wetland over which Respondent has jurisdiction, we then turn to the basis for denial by the Respondent of Petitioner's request. The letter of July 12, 1983, reflects as reasons for the intent to deny several factors. One is that he application is incomplete because the Department of Natural Resources has not Issued Its consent to the project. This is correct, though Petitioner contends he was advised by the Department of Natural Resources not to worry about it. A second is that the proposed evacuation and filling will result in violations of state water quality standards and criteria for such Items as bacteriological quality, biological integrity, pH, specific conductives, DO, BOD, nutrients and turbidity.

    
    

16. Regarding she issue of bacteriological quality, because of the buildup of muck in standing water areas over the years, the rich muck contains silt, a good media for bacteria, including fecal bacteria, growth. Cutting into this silt will release much of this bacteria into the water downstream from the area of the cut. This in turn will raise the total coliform and fecal coliform bacteria count. In short, disturbing the area by digging would release the bacteria currently trapped in the bog area and the muck.

    
    

17. Biological integrity deals with the number of species and the quantity of item per species in the area. Disruption of the natural habitat will vastly alter the biological integrity of this area and other areas downstream. Specifically and primarily, Mr. Rohlke was referring to such species as mayflies, dragonflies, worms, leeches and lesser organisms which would be disturbed and possibly removed, in the case of the lesser organisms, by the removal of the dirt. Not only would removal alter the biological balance, but so would the biological balance of the area where the removed dirt is placed.

18. These minuscule organisms, even if not visible, are extremely important in the breakdown of this material and are important to the food chain:. Eliminating this block would put a big hole in the food chain. It has been the experience of Mr. Rohlke that artificial channels always lower the invertibrate life in the water; and as a result, the water quality goes down. This may not be catastrophic, per se, but there is a cumulative effect which manifests itself in a reduced production of seafood in the area, such as shrimp, oysters, trout and mullet, all of which are important sources of edible seafood.

    
    

19. As to the pH, studies show that this pH balance is best when not altered more than one unit. Petitioner's property in question is of a type usually considered alkaline. Dredging would bring in acidic swamp water to mix with the alkaline surrounding water and would result in an alteration of more than one unit. The resulting impact would be adverse to the water quality.

    
    

20. As to the question of specific conductives, saltwater has a conductive count of 30,000, freshwater of about 1,000. Stirring up the water by dredging would alter the specific conductives of saltwater and may result in a quick release of freshwater into the saltwater, thereby having a fatal effect on those microorganisms and macroorganisms which are dependent upon saltwater for life.

    
    

21. In the area of dissolved oxygen (DO), when organic materials such as are found on the bottom of Petitioner's property are released, there is a strong probability that dissolved oxygen contained in the water will decrease. This would result in the death of fish and other organisms which use oxygen. There are many years of organic buildup on the bottom of the area to be dredged. This area is not a sandy bottom, and release of this organic buildup, with the resultant loss of dissolved oxygen, would be fatal to a large number of species in the ecosystem.

    
    

22. Turning to the area of turbidity, which is the suspension of solid matter within the liquid (lack of clarity) the silt that would be stirred us as a result of the dredging, when suspended in the water, tends to suffocate fish and other life forms which breathe through water. This, in conjunction with lowered oxygen levels, creates a combination which is deadly to the many types of organisms. Not only does dredging have an immediate negative short-term impact, but it well may have a long-term impact, as well. The straight sides of a cut canal normally do not support growth which would strain out or hold silt carried by stormwater rushing through the canal. Also, since this is a silty, organic area rather than a clean, sandy bottom, the area is even worse. The turbidity curtain which Petitioner offered to ins tall downstream to curb the turbidity would be, in the opinion of Respondent, ineffective in a stream of flowing water.

    
    

23. In considering the validity of Mr. Rohlke's evidence, as outlined above, however, one must consider that he did not take any water samples, did not check for any types of fish, did not take any samples of marine biology, but basically based his opinion and analysis on no more than a walk through the area and his unaided view of the property in question.

    
    

    CONCLUSIONS OF LAW

    
    

24. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter of this proceeding.

25. In its notice of intent to deny Petitioner's application dated July 12, 1983, Respondent asserts as its authority to regulate Petitioner's proposed activity Sections 253.123, 253.124 and 403.087, Florida Statutes (1951).

    
    

26. Section 253.123 deals with restrictions on filling land and dredging land which borders or is in the navigable waters of the State as defined in Section 253.121), Florida Statutes (1981). This latter statute defines title to tidal lands vested in the State; and it is clear that the property in question is owned by Petitioner, and not by the State of Florida. However, Chapter 17- 4.28(1), Florida Administrative Code, states that:

    
    

    1. ll dredging or filling activities conducted in or connecting to waters of the state shall comply with Chap- ter 17-3, F. A. C. Compliance shall

       be in regard to the long-term, as well

       as the short-term effects of the projects.

       
       

       Chapter 17-3, Florida Administrative Code, relates to water quality standards.

       
       

27. Section 253.124, Florida Statutes (1981), relates to the requirements for the application for filling land and provides, inter alia, that the application must also be approved by the Department of Natural Resources for the Board of Trustees of the Internal Improvement Trust Fund. The land in question here neither borders nor is in navigable waters. This provision, therefore, is not applicable, nor is Section 231.123, Florida Statutes (1981).

    
    

28. Section 403.087, Florida Statutes (1981), deals with permits regarding those projects which may be expected to adversely affect water quality in the State of Florida. In that regard, Subparagraph (2) of Rule 17-4.28, Florida Administrative Code, states:

    
    

    1. hose dredging or filling activities which are to be conducted in, or con- nected directly or via an excavated water body or series of excavated water bodies to, the following cate- gories of waters of the state to their landward extent as defined by Section 17-4.02(17), F. A. C. require permit from the department prior to being undertaken:

       1. streams and natural tributaries thereto;

       2. bays, bayous, sounds, estuaries, and natural tributaries thereto . .

    
    

29. It is obvious from the geographical evidence submitted by Petitioner himself that his property is subject to regulation under the above a mentioned statute and rule, since it falls within either Subparagraphs (b) or (c)

    
    

30. Once jurisdiction has been established, one must next turn to the basis for denial by Respondent as contained in its intent to deny as it relates to the alleged violations of state water quality standards and criteria. Those which Respondent claims would be violated are Rules 17-3.061(2)(b) (n) and (q) , and 17-3.121(5) , (7) , (14) , (20) and (22)

31. The Respondent's expert, Mr. Rohlke, testified that he made two trips to the property and, on the last one, walked some 1,000 feet into the swamp. However, he did not take any water samples, any bottom samples or any other samples from which he could determine the exact physical makeup of the bottom in this immediate area, nor did he do a marine life count. However, it is noted that he has done approximately 1,000 of these type inspections which deal with the potential impact to water quality and Petitioner accepted him as an expert in the area. On the other hand, Petitioner admitted a total lack of scientific expertise; and his testimony, while interesting and historical, gave very little more than his own opinion of the effects his proposal would have on the area.

    
    

32. In the face of Respondent's expert testimony that the specific state water quality standards contained in Sections 17-3.061 and 17-3.121, Florida Administrative Code, would be violated, the Petitioner presented no preponderant evidence supportive of his position that no degradation of water quality could occur. The unrefuted evidence presented by Respondent established that degradation of existing water quality would occur by the cutting of Petitioner's proposed canal alone, as well as the cumulative effects if other similar projects should be accomplished in the general area.

    
    

33. It is, therefore, concluded that Petitioner has failed to provide affirmative reasonable assurances that his proposed project would not result in violation of the water quality standards described above with regard to both short-term and long-term effects on the subject waters. To the contrary, the preponderance of the evidence demonstrates that the proposed project would cause pollution in contravention of the provisions of Chapter 17, Florida Administrative Code, as well as the cited statutory authority.

    
    

34. The parties have submitted proposed recommended orders 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 above. They have been otherwise rejected as contrary to the better weight of the evidence, not supported by the evidence, irrelevant to the issues, or legally erroneous.

RECOMMENDATION

On the basis of the above, it is RECOMMENDED:

That the application of Victor T. Cheney for a permit to dredge a canal across the property as described in the application be denied.

RECOMMENDED this 5th day of December, 1983, in Tallahassee, Florida.

ARNOLD H. POLLOCK, 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 5th day of December, 1983.

COPIES FURNISHED:

Mr. Victor T. Cheney

374 Gardner Drive

Fort Walton Beach, Florida 32548

E. Gary Early, 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

================================================================= AGENCY FINAL ORDER

=================================================================

STATE OF FLORIDA

DEPARTMENT OF ENVIRONMENTAL REGULATION

VICTOR T. CHENEY,

Petitioner,

vs. CASE NO. 83-2314

STATE OF FLORIDA, DEPARTMENT OF ENVIRONMENTAL REGULATION,

Respondent.

/

FINAL ORDER

BY THE DEPARTMENT:

On December 1, 1983, the duly appointed hearing officer in the above-styled matter completed and submitted to the Department and all parties a Recommended Order. A copy of that Order is attached hereto as Exhibit "A".

Pursuant to Florida Administrative Code Rule 17-1.68(1) and Section 120.57(1)(b)8, Florida Statutes, the parties were allowed ten (10) days in which to submit written exceptions to the Recommended Order. Neither the Petitioner nor the Respondent submitted exceptions. The Recommended Order thereafter came before me as the head of the Department for final agency action on this matter. Having reviewed the Recommended Order, I find there are three items which need clarification.

In paragraphs 15 and 20 of the findings of fact the hearing officer makes reference to "specific conductives". That is apparently a scrivener's error as the Department's rules refer to a standard for specific conductance".

Therefore, this final order shall reflect that the water quality standard referred to by the hearing officer is that for specific conductance.

The second item for clarification is also apparently a scrivener's error. In paragraph 4 of the conclusions of law, the hearing officer refers to Section 231.123, Florida Statutes. As Chapter 231, Florida Statutes, is inapplicable in this case, the final order shall reflect that the appropriate citation is Section 253.123, Florida Statutes.

Two final corrections must be made to the hearing officer's conclusions of law. In paragraph 3 of the conclusions of law, the hearing officer indicates that Section 253.12 defines title to tidal lands, and that "it is clear that the property in question is owned by Petitioner". He then goes on to cite requirements of Rule 17-4.28. The hearing officer erroneously concludes that Section 253.12 deals only with tidal lands. Sovereignty submerged lands of a fresh and saline nature are involved. Additionally, submerged lands in navigable freshwater lakes, rivers and streams are held in trust for the people of the state by virtue of the state's sovereignty over those lands. The fact that Petitioner may own the uplands adjacent to a navigable water body or even the submerged land in question is not relevant. The terms of Sections 253.12 and 253.123 give the Department regulatory jurisdiction over dredging in navigable water bodies.

However, in the absence of a specific finding that the waters of the state on Mr. Cheney's property are navigable, the hearing officer is correct in ultimately recommending that the Department not assert Chapter 253 jurisdiction in this case. (see paragraph 4). The Department will continue to assert Chapter 253 jurisdiction over navigable fresh water bodies. To the extent the recommended order conflicts with that position, it is hereby rejected.

Having considered the Recommended Order submitted herein and being otherwise fully, advised, it is therefore:

ORDERED that the hearing officer's Recommended Order with the modifications set forth herein, is hereby adopted in toto as the final action of this agency. Accordingly the permit application, No. 660651171, is hereby DENIED.

DONE and ENTERED this 4th day of January, 1984, in Tallahassee, Florida.

STATE OF FLORIDA, DEPARTMENT OF ENVIRONMENTAL REGULATION

VICTORIA J. TSCHINKEL

Secretary

Twin Towers Office Building 2600 Blair Stone Road 32301 Tallahassee, Florida Telephone: (904) 488-4805

CERTIFICATE OF SERVICE

1 HEREBY CERTIFY that a true and correct copy of the foregoing FINAL ORDER has been furnished by U.S. Mail to Arnold H. Pollock, Hearing Officer, Division of Administrative Hearings, The Oakland Building, 2009 Apalachee Parkway, Tallahassee, Florida 32301 and Victor T. Cheney, 374 Gardner Drive, Fort Walton Beach, Florida 32548, on this 5th day of January, 1984.

E. GARY EARLY

Assistant General Counsel State of Florida, Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32301

Telephone: (904) 488-9730

Docket for Case No: 83-002314

Orders for Case No: 83-002314