Judges: MARY CLARK
Agency: Department of Environmental Protection
Latest Update: Aug. 19, 1987
Summary: Dredge and fill application denied for finger canal project due to negative impact on already poor water quality.
87-1727STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
GRACE L. WALDRON and )
CARL W. WAGNER, )
)
Petitioners, )
)
vs. ) CASE NO. 87-1727
) DEPARTMENT OF ENVIRONMENTAL REGULATION, )
)
Respondent. )
)
RECOMMENDED ORDER
Final hearing in the above-styled action was held in St. Cloud, Florida on July 7, 1987, before Mary Clark, Hearing Officer of the Division of Administrative Hearings.
The parties were represented as follows:
For Petitioner: Carl W. Wagner
Star Route Box 975 Kenansville, Florida 32729
For Respondent: Vivian F. Garfein, Esquire
Department of Environmental Regulation 2600 Blair Stone Road
Tallahassee, Florida 32399-2400 Background and Procedural Matters
This proceeding commenced with Petitioners' timely request for formal hearing in response to the Department of Environmental Regulation (DER) Notice of Intent to Deny permit application #49-124177-4.
The request for hearing was signed by Grace Waldron as Petitioner and Carl Wagner, "Agent." At the commencement of the final hearing, however, the style of the case was amended to reflect that Mr. Wagner is a co-petitioner, having demonstrated standing to participate in his own behalf. On the record, Ms.
Waldron designated him as her representive and announced that she did not wish to testify or otherwise participate, except through Mr. Wagner.
Mr. Wagner testified and presented one additional witness. His seven exhibits were admitted into evidence; numbers 3-7 were admitted over the objection of DER, based on relevance.
DER presented four witnesses and eleven exhibits, all admitted without objection.
After hearing, both parties submitted Proposed Recommended Orders. These, as well as the evidence and argument by the parties, have been carefully
considered in the preparation of this recommended order. While designated "findings of fact" Mr. Wagner's post-hearing submittal is comprised of a summary of the DER objections to the project, a summary of certain testimony, and argument. The findings of fact submitted by DER are substantially adopted herein, in modified form.
FINDINGS OF FACT
Grace L. Waldron owns the property in Osceola County where the proposed project is located. Carl Wagner leases a portion of the property and operates a fish camp/bait and tackle shop on the property.
On August 22, 1986, the Petitioners submitted an application, designated DER File No. 49-124177-4, to dredge an access canal which would connect an existing elongated borrow pit with Lake Cypress, and to construct two commercial piers, 300 feet long by 4 feet wide, with sixty finger piers, 12 feet long by 2 feet wide. The borrow pit, also called the "existing canal" is approximately 50 feet wide by 800 feet long. The dredging would create a dead end finger canal approximately 1160 feet in length. Approximately 5,800 cubic yards of muck, hard pan and clay would be dredged to create the canal and channel into the waters of the lake..
Lake Cypress is located in the Kissimmee "chain of lakes" a series of lakes connected by man-made canals or by the Kissimmee River. The system is a popular fishing and recreational area. It also has been adversely affected by intense development and volumes of effluent flowing into the lakes.
Cypress Lake has very poor water quality. Chlorophyll a consistently runs around 90-160 milligrams per liter (mg/1). DER has a policy of allowing no wasteload allocation if chlorophyll a is greater than 60 mg/1. Biochemical Oxygen Demand (BOD) is also extremely high. A BOD level of 2-3 mg/1 is deemed acceptable. Samples taken by Petitioner's consultants in December 1986, reflected a BOD level of 9.8 mg/l in the lake and 27 mg/1 in the borrow pit. Some violations, though not as serious, were found in the Dissolved Oxygen (DO) standard of 5 mg/1.
The creation of a finger canal will create a more serious water quality problem than currently exists. This is evidenced by experiences with such canals throughout the state. Dead-end canals prohibit effective exchange of water and after a period of build-up within the basin, a winter storm event or unusually heavy summer thunder-shower will create a sloshing effect, the toxic plug will be released and the polluted water will flush into the lake, creating a potential fish kill.
After a period of buildup, boaters are reluctant to use dead-end finger canals as it is impossible to keep the boats clean.
The proposed channel dredging would eliminate approximately 0.25 acres of densely vegetated littoral zone habitat. Such zones provide spawning, nursery and feeding habitat for a wide variety of fish species.
Lesser concerns, but nonetheless negative impacts from the project, are a short term increase in turbidity from the dredging of the channel, and the effect on endangered or threatened species of birds found on or near the site.
The U.S. Department of the Interior, Fish and Wildlife Service and the
U.S. Environmental Protection Agency have commented negatively on the proposed
project. These agencies have cited the same concerns with water quality, effect on the littoral zone and effect on wildlife described above, and explained in depth in the testimony of DER's expert witnesses.
The Florida Game and Fresh Water Fish Commission, also commenting on the project, has a policy of encouraging development and use of public access facilities and discouraging all private channel construction.
On Lake Cypress there exists a public boat ramp and launching facility approximately 300 feet to the north of the proposed project. Other access to the lake is provided through facilities on other lakes in the chain, although these facilities are a considerable driving distance from the proposed site.
The public boat ramp on Lake Cypress does not have lights nor restrooms. Parking is limited and Waldron provides parking for boaters at his commercial establishment for $7.00 a year.
Carl Wagner presented six pages of signatures obtained from his posting a "Petition" in support of the project at his bait and tackle shop. The Petition cites deficiencies in the existing public facility.
Carl Wagner has lived and worked on the Kissimmee chain of lakes for
37 years. He worked for the South Central Florida Flood Control District maintaining pumps and locks for eleven years, and has fished and served as a fishing guide for the remainder. He has an intimate familiarity with the wildlife, fish species, drift and flow of the lakes and weather patterns in the area. His knowledge is valid, though not so technical as that of the various agency experts.
His position is that he is just trying to make a living, that if the public ramp and facilities were adequate, he could make a living with a tackle shop, but the public access is not adequate. He concedes that the water quality is bad, but argues that the impact of his project would be so minimal as to be a mere "drop in the bucket".
While the applicant has not suggested alternatives, the Department has suggested that a boardwalk could be constructed with a dock extending into the lake, with finger piers. This would avoid the need to dredge a canal and channel, but the environmental impact of the pilings and any navigational hazards have not been fully studied.
The applicant has not Suggested mitigation measures to improve water quality, nor is it likely that such measures would be effective.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the subject matter and parties to this proceeding. Section 120.57(1) F.S.
The Department of Environmental Regulation has permitting jurisdiction over the proposed project pursuant to Chapter 403 F.S. and Rule Chapters 17-3, 17-4 and 17-12 F.A.C.
The applicant has the burden of providing reasonable assurance that water quality standards will not be violated and that the project is not contrary to the public interest. Subsection 403.918(1) and (2) F.S.
Subsection 403.918(2)(a) F.S. provides:
In determining whether a project
is not contrary to the public interest, or is clearly in the public interest, the department shall consider and balance the following criteria:
Whether the project will adversely affect the public health, safety, or welfare or the property of others;
Whether the project will adversely affect the conservation of fish and wildlife, including endangered or threatened species, or their habitats;
Whether the project will adversely affect navigation or the flow of water or cause harmful erosion or shoaling;
Whether the project will adversely affect the fishing or recreational values or marine productivity in the vicinity of the project;
Whether the project will be of a temporary or permanent nature;
Whether the project will adversely affect or will enhance significant historical and archaeological resources under the provisions of s. 267.061; and
The current condition and relative value of functions being performed by areas affected by the proposed activity.
The recreational value of Lake Kissimmee would initially be enhanced by the project. However, this factor is outweighed by the negative impact on already poor water quality and the resultant impact on the fish, fishing and marine productivity in the area. Over the long term the recreational values would be diminished and boaters would be reluctant to use the narrow canal for access to the lake after the build-up of fouling pollutants occurs.
The applicant has failed to provide reasonable assurances that water quality standards will not be violated and that the project is not contrary to the public interest.
RECOMMENDATION
Based on the foregoing, it is hereby, RECOMMENDED:
That a Final Order be entered denying permit application number 49-1241774.
DONE and RECOMMENDED this 19th day of August, 1987 in Tallahassee, Florida.
MARY CLARK
Hearing Officer
Division of Administrative Hearings The Oakland Building
2009 Apalachee Parkway
Tallahassee, Florida 32399-1550
(904) 488-9675
Filed with the Clerk of the Division of Administrative Hearings this 19th day of August, 1987.
COPIES FURNISHED:
Dale Twachtmann, Secretary Department of Environmental
Regulation
2600 Blair Stone Road Tallahassee, Florida 32399-2400
Daniel H. Thompson, Esquire Department of Environmental
Regulation
2600 Blair Stone Road Tallahassee, Florida 32399-2400
Grace L. Waldron Post Office Box 1341
St. Cloud, Florida 32769
Carl W. Wagner
Post Office Box 975 KenanSville, Florida 32739
Vivian F. Garfein, Esquire Department of Environmental
Regulation
2600 Blair Stone Road Tallahassee, Florida 32399-2400
Docket for Case No: 87-001727
Orders for Case No: 87-001727
| Issue Date |
Document |
Summary |
|
Aug. 19, 1987 |
Recommended Order
|
Dredge and fill application denied for finger canal project due to negative impact on already poor water quality.
|
