STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CITY OF COCONUT CREEK AND, ) MR. AND MRS. W. H. LEE, et al., )

)

Petitioners, )

)

vs. ) CASE NOS. 83-3672

) 83-3673

BROWARD COMMUNITY COLLEGE AND ) STATE OF FLORIDA, DEPARTMENT ) OF ENVIRONMENTAL REGULATION, )

)

Respondents. )

)

RECOMMENDED ORDER

Pursuant to notice, a hearing was held in these consolidated cases in Fort Lauderdale, Florida, on August 13 and 14, 1984, before Michael M. Parrish, a duly designated Hearing Officer of the Division of Administrative Hearings.

Appearances for the parties were as follows:

For the City: Elaine M. Catsos, Esquire

Post Office Box 14004

Ft. Lauderdale, Florida 33302

For the Residents: Jeanne E. Faiks, Esquire

1303 North State Road 7

Margate, Florida 33063

For the College: Steven A. Mason, Esquire

6120 Washington Street

Hollywood, Florida 5023

For the Department: David K. Thulman, Esquire

Department of Environmental Regulation 2600 Blair Stone Road

Tallahassee, Florida 32301 ISSUES

The issues presented in this case concern the request by Broward Community College (hereinafter referred to as "the College") to be granted permission by the State of Florida, Department of Environmental Regulation (hereinafter referred to as "DER" or "the Departmcnt") to embark upon a project described in the Notice of Proposed Agency Action as "... to install two 36 in. culverts, invert 3.00 ft. , mean sea level, in the ditch; and dredging 832 cu.yds from .5 acres and installing 14 ft. lin. by 12 ft. lin. structural plate underpass (invert elevation 0.0 ft.) as a road crossing in the Coconut Creek Waterway." DER reviewed the permit applications under the general authority of Chapters 253 and 403, Florida Statutes, and associated rules and gave notice of its intent to issue the permit. The City of Coconut Creek (hereinafter referred to as "the

City") as well as Mr. and Mrs. W. H. Tee and numerous other residents in the immediate area of the proposed construction (hereinafter referred to as "the Residents") filed timely petitions for a formal hearing on the proposed agency action.

FINDINGS OF FACT

Based on the stipulations of the parties, the exhibits received in evidence, and the testimony of the witnesses at the hearing, I make the following findings of fact:

1. On April 21, 1983, the College filed an application with DER seeking a permit to relocate a drainage ditch that runs through the College property, to fill the existing drainage ditch, and to install a large culvert in the Coconut Creek Waterway which would serve as a road crossing connecting the proposed new College parking lot and N.W. 39th Avenue in Coconut Creek. Upon review of the original application, DER determined that it would not meet the DER's water quality criteria.

   
   

2. On September 30, 1983, the College revised its application. It is the revised application which lies at the heart of the present controversy. The revised application no longer contains a proposal to fill in the entire ditch that runs through the College property. Rather, it is new proposed to install two 36-inch culverts in the existing ditch to provide access roads to the proposed new College parking lot. The College also proposed to dredge 832 cubic yards from .5 acres and to install a large structural culvert (measuring 14 feet, 1 inch, by 12 feet, 10 inches) in the Coconut Creek Canal.

   
   

3. The existing ditch which runs through the College campus was originally constructed as a drainage ditch. The only water which would flow through that ditch would be provided by run off from the N.W. 11th Street area. At the present time the ditch through the College is plugged in two places. Some time in late July or early August of 1984, contractors employed by the College placed two earthen plugs in the ditch that runs through the College. This was done without benefit of a Department permit and was apparently the result of some confusion on the part of the contractors, the exact nature of which is not explained in the record in this case. The two earthen plugs were not installed in the manner proposed by the subject application, nor were they installed in the locations proposed in the subject application. In their present condition the two earthen plugs effectively prevent the flow of any water through the ditch that runs through the College.

   
   

4. The north end of the ditch that runs through the College campus was formerly connected to Coconut Creek Canal. A portion of Coconut Creek Canal runs parallel to N.W. 11th Street. Following the installation of the earthen plugs there was a decrease in the water quality of the portion of Coconut Creek Canal that parallels N.W. 11th Street. The water became cloudier than before and there was some silting. There were fewer base and bluegills and more mudfish. There has also been an occasional unpleasant odor from the area which was not present prior to the installation of the earthen plugs. Also, the residents along N.W. 11th Street complain of an increased mosquito Population since the installation of the earthen plugs. 1/

   
   

5. The proposed 36-inch culverts are substantially larger than is necessary to handle the anticipated flow of water through the College ditch. Calculations made using the methodology approved by the Florida Department of Transportation indicates that 21-inch culverts would have been sufficient to

   handle any anticipated flow of water through the College ditch. Although the culverts will require some periodic maintenance, they have been designed to minimize the need for maintenance. Properly maintained, the proposed 36-inch culverts will not pose any impediment to the flow of water through the College ditch.

   
   

6. There is usually no detectable current or water flow in either Coconut Creek Canal or the College ditch in the area where the College proposes to install the three culverts. Accordingly, inasmuch as there is usually no detectable flow of water, any impediment to water flow which might be caused by the culverts is insignificant. This is particularly true with regard to the issue of weed growth. While it has been contended that the culverts might reduce the rate of water flow to the extent that aquatic weed growth would be promoted because of the stillness of the water, long before this permit was ever applied for and long before the earthen plugs were installed the City of Coconut Creek had serious problems with aquatic weeds growing in all of its canals. As described by one of the City's former mayors, several years ago the hyacinths covered the canals solid from bank to bank and were growing so thick and solid that rabbits could actually run across the canals hopping on the hyacinths.

   This type of hyacinth growth only occurs in still water. The City has been able to control the hyacinth problem by an ongoing weed control program which consists of spraying chemicals on the plants several times each year.

   
   

7. The small amount of water flow which does occur in Coconut Creek Canal is directly related to stormwater runoff, including water generated by the residents along N.W. 11th Street washing their cars and watering their lawns. The portion of Coconut Creek Canal which extends eastward from the College ditch is a dead end system in which the only flushing is due to water runoff from the street.

   
   

8. The installation of the proposed large culvert in Coconut Creek Canal would never cause the water to back up in the canal or otherwise impede the flow of water in the canal. A tube 21 inches in diameter would be sufficient to carry away the worst expected rain water conditions and the proposed culvert is, in essence, a tube with an average diameter in excess of 13 feet. The large culvert would cause no change in the volume of water flowing through the canal. It might cause a de minimis headloss, which is a change in the water level from one side of the culvert to the other. Any such headloss would be on a magnitude of approximately 1/1000th of a foot; about 1/3 of a millimeter.

   
   

9. The installation of the large culvert in the Coconut Creek Canal would actually increase the velocity of any water flow through the culvert. In conjunction with the installation of the large culvert, the depth of Coconut Creek Canal would be increased to an average of six or six and one-half feet from its present average of approximately five or five and one-half feet.

   
   

10. Notwithstanding the decrease in the water quality of the portion of Coconut Creek Canal that parallels N.W 11th Street which apparently resulted from the unauthorized installation of the two earthen plugs, when the water in that portion of the canal was tested by the City's export witness some eight or nine months later, the water quality was within established state standards. And while the construction activity associated with the installation of the two 36-inch culverts in the College ditch effect on the water quality in Coconut

    Creek Canal, there is no evidence that water quality standards would be violated on either a short or long-term basis. A small amount of habitat would be destroyed, but it is likely that there would be rapid recolonization. No rare or endangered animal species would be affected. The habitat for birds would

    also recolonize and the birds and fish displaced by construction would return. Any turbidity problems during construction would be controlled by the use of turbidity screens.

    
    

11. With regard to navigability, once installed the large culvert would provide a vertical clearance from the surface of the canal of approximately six feet. This clearance would prevent larger boats from passing through the culvert. The vertical clearance of existing canal bridges in the area varies from six and one-half to eight feet. Installation of the larger culvert would not seriously impede navigation. The large culvert would not constitute a navigational hazard nor would it impede the flow of navigable water.

    
    

12. As compared to the situation which existed prior to the installation of the two earthen plugs, installation of the two 36-inch culverts would totally stop any boat traffic through the ditch that runs through the College. Nevertheless, curtailment of boat traffic through the College ditch would not seriously impede navigation because any destination which could be reached by traveling through the College ditch could be reached via alternative canal routes which are not affected by this project. As with the larger culvert, the 36-inch culverts would not constitute navigational hazards nor would they impede the flew of navigable water.

    
    

13. If the total project envisioned by the College is completed, the culverts will provide a new route for motor vehicle access to an expanded College parking lot. The increased volume of motor vehicle traffic would produce an increased amount of air and noise pollution in the vicinity of N.W. 39th Avenue. A study of the results of the increased motor vehicle traffic based on a "worst case" scenario reveals that even with the additional air and noise pollution generated by the increased motor vehicle traffic, the air and noise pollution levels in the area would be far below the air and noise pollution standards established by the state and federal governments.

    
    

14. In the formulation of the foregoing findings of fact I have, of necessity, relied to a large extent on the opinions of expert witnesses who testified in the case. Where there is conflict in the testimony of the expert witnesses, I have generally credited the testimony of the expert witnesses called by the College and the Department because I have found their testimony to be more consistent with other evidence in the case and have found that there is a better factual foundation in the record for their opinions than for the opposing opinions.

    
    

    CONCLUSIONS OF LAW

    
    

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

    
    

16. The ditch that runs through the College campus and the Coconut Creek Canal consist of waters over which the Department has jurisdiction pursuant to Chapters 253 and 403, Florida Statutes, and Chapters 17-3 and 17-4, Florida Administrative Code. Rule 17-4.07, Florida Administrative Code, requires an applicant, such as the College, to affirmatively provide the Department reasonable assurances based upon plans, test results, and other information that the construction, expansion, modification, operation, or activity envisioned will not discharge, emit, or cause pollution in contravention of Department standards, rules, or regulations. The quality of proof necessary to give these assurances is found in Rule 17-1.59, Florida Administrative Cede, which provides

    that the burden of proof related to reasonable assurances and other items of proof must be by a preponderance of the evidence before the license requested may be granted. The applicant in this case has met the necessary proof in establishing its entitlement to the permit to install the three culverts.

    
    

17. Pursuant to Rule 17-4.28, Florida Administrative Code, the aforementioned reasonable assurances must be given that the dredging and/or filling activities conducted in or connected to waters of the state comply with Chapter 17-3, Florida Administrative Code, pertaining to water quality criteria standards requirements and provisions. Those standards in this instance pertain to Class III waters. The proposed project, in its long-term and short-term effects, will not result in a violation of any of the rules, standards, or criteria of the Department pertaining to water quality. That is to say, the proof here is sufficient to establish reasonable assurances that these rules, standards, and criteria pertaining to water quality will not be violated.

    
    

18. With regard to the proof necessary to warrant a grant of a permit pursuant to Section 253.123, Florida Statutes, the applicant must establish that the project will neither interfere with the conservation of fish, marine, and other wildlife, or other natural resources, nor create a navigational hazard, substantially alter or impede the flow of navigable waters, or interfere with navigation in a way that would be contrary to the public interest. Concerns for flow and navigation are addressed by Rule 17-4.29, Florida Administrative Code. The concept "contrary to the public interest" as stated in Shablowski v. Department of Environmental Regulation, 370 So. 2d 50 (Fla. 1st DCA 1979), is a factual question and that question has been determined in favor of the applicant.

    
    

19. The subject project is not "contrary to the public interest." Its hydrographic impacts are negligible when considered as influences on conservation of fish, marine, and other wildlife, or other natural resources, or as an alteration or impediment to the natural flow of navigable waters. While there is some interference with navigation, on balance that interference is not such as to be characterized as "contrary to the public interest."

    
    

20. Further, the evidence clearly established that any increase in air or noise pollution which might result from the ultimate purpose of this project would result in total air and noise pollution levels far below the established standards.

    
    

21. The Department has complied with the requirements of Rule 17-4.29(5), Florida Administrative Code, by preparing all of the necessary surveys and studies required by that rule. 2/

    
    

22. In summary, the applicant has made a sufficient showing that it is entitled to be granted the necessary permits for the installation of the three culverts and the related aspects of the proposed project pursuant to Chapters

    403 and 253, Florida Statutes, and Chapters 17-3 and 17-4, Florida Administrative Code. This proof has not been refuted by the Petitioner. Consequently the College is entitled to be granted the subject permit.

    
    

23. The City has attempted to raise as an issue the contention that construction of the project for which the College seeks a permit would be a violation of one or more City ordinances. The existence and interpretation of those City ordinances may be very relevant to whether the project may ever be lawfully constructed or to whether the proposed construction can be enjoined in same other forum, but the City ordinances are totally irrelevant to the issue of

    whether the College is entitled to be granted the permit it has applied for. See Council of Lower Keys v. Charley Toppino & Sons, Inc., 429 So. 2d 67 (Fla. 3d DCA 1983).

    
    

24. The Residents have attempted to raise the issue of the decreased value of their homes as a result of the College's proposed project. Most of the evidence on this subject was either speculative or hearsay. Further, the loss in property value, if any, appears to have been from the unauthorized installation of the earthen plugs (which is not an issue to be resolved in this case) rather than from anything the College proposes to do pursuant to the permit.

RECOMMENDATION

For the foregoing reasons it is Recommended that the Department issue a Final Order which would GRANT the College's application to install two 36-inch culverts in the College ditch and a 14-foot, 1-inch, by 12-foot, 10-inch, culvert in the Coconut Creek Canal, subject to the conditions set forth in the Department's Notice of Intent to Issue.

DONE and ORDERED this 8th day of October, 1984, in Tallahassee, Florida.

MICHAEL M. PARRISH

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 8th day of October, 1984.

ENDNOTES

1/ There is no competent substantial evidence that the installation of the earthen plugs was the cause of the occasional unpleasant odors or the cause of the increased mosquito population; only evidence that one thing followed the other chronologically. Any number of things could have caused the unpleasant odors and the increased mosquito population.

2/ Even if the Department had not fully complied with the requirements of this rule, any shortcoming in that regard would appear to be harmless error in light of the facts proved at the hearing.

COPIES FURNISHED:

Elaine M. Gatsos, Esquire Post Office Box 14004

Ft. Lauderdale, Florida 33302

Jeanne E. Faiks, Esquire 1303 N. State Hoard 7

Margate, Florida 33063

Steven A. Mason, Esquire 6120 Washington Street

Hollywood, Florida 33023

David K. Thulman, Esquire Department of Environmental

Regulation

2600 Blair Stone Pond Tallahassee, Florida 32301

Ms. Victoria Tschinkel, Secretary Department of Environmental

Regulation

Tallahassee, Florida 32301

Docket for Case No: 83-003672

Orders for Case No: 83-003672