STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MANATEE CHAPTER OF THE IZAAK ) WALTON LEAGUE, INC., )

)

Petitioner, )

)

vs. ) CASE NO. 78-675

)

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

)

Respondent. )

)

RECOMMENDED ORDER

A hearing was held in the above captioned matter, after due notice, at Bradenton, Florida, on June 20, 1978, before the undersigned Hearing Officer.

APPEARANCES

For Petitioner: Judith Smith Kavanaugh, Esquire

543 Tenth Street, West Bradenton, Florida 33505

For Respondent, Alfred W. Clark Department of Assistant General Counsel

Environmental 2600 Twin Towers Office Building Regulation: Tallahassee, Florida 32304

For Respondent Jim Anderson, Esquire Department of Officer of General Counsel Transportation: Haydon Burns Building

Tallahassee, Florida 32304 STATEMENT OF THE ISSUE

Whether Department of Transportation should be issued a permit by Department of Environmental Regulation to construct a highway interchange at the intersection of proposed extension of Interstate Highway 75 and SR 64, pursuant to Chapter 403, Florida Statutes, and Public Law 92-500.

These proceedings commenced after Respondent Department of Environmental Regulation (DER) issued a Notice of Intent to Grant a Permit to Respondent Department of Transportation (DOT) on March 15, 1978, to construct an interchange where a proposed extension of Interstate Highway I-75 will intersect with SR-64 in Manatee County, Florida. Petitioner Manatee Chapter of the Izaak Walton League of America, Inc., a Florida nonprofit corporation (Izaak Walton League), filed its petition in April, 1978, contesting issuance of the permit on various grounds. An amended petition was filed on June 13, 1978, alleging that the proposed agency action is in contravention of applicable statutes and

regulations prohibiting the destruction of aquatic natural resources and the degradation of water quality resulting from such activity, and is contrary to recommendations for denial of the permit by the Manatee County Pollution Control Department, the U.S. Division of Forestry, the initial findings of the DER staff, and objections of the U.S. Fish and Wildlife Service. At the commencement of the hearing, Petitioner withdrew its allegations concerning Chapter 253, Florida Statutes, deficiencies relative to natural resources, and it was agreed by the parties that the proper scope of the hearing involved only water quality standards under Chapter 403, Florida Statutes, Rule 17-4.28, Florida Administrative Code, and other related DER rules.

FINDINGS OF FACT

1. On June 15, 1977, Respondent Department of Transportation (DOT) filed application with Respondent Department of Environmental Regulation (DER) for a permit to relocate 5,188 linear feet of an existing canal commonly referred to as Cypress Strand Canal in Manatee County, Florida. The application and accompanying drawings show that the scope of the project is not merely limited to relocation of the canal, but other dredge and fill activities in the surrounding area incident to the construction of a highway interchange over State Road 64 approximately four and one-half miles east of Bradenton, Florida. On March 15, 1978, DER issued a Notice of Intent to issue a permit for the application pursuant to Chapter 403, Florida Statutes, and Public Law 92-500. In its notice, the extent of the project was described as follows:

   
   

   PROJECT: To construct an interchange where I-75 will intersect SR-64 by: filling 5,188

   linear feet of a channelized cypress stand by placing 27,100 cubic yards of fill in the existing ditch; excavation of 38,250 cubic yards of material to create a new ditch 4,455 feet long; placement of 195,176 cubic yards of fill in an existing borrow pit to construct a road causeway with 241 linear feet of 72 inch RCP and 288 linear feet of 54 inch RCP placed under the causeway to provide water exchange; placement of 161 linear feet of double 8 ft. by 7 ft. box culvert in the new ditch for the crossing of SR-64; placement of 292 linear feet of 8 ft. by 7 ft. box culvert in the new ditch for the crossing of I-75; placement of two 24 inch and one 42 inch pipe to drain runoff from the interchange into the new ditch.

   
   

   The notice also stated that the proposed permit would be subject to certain conditions, including the placement of silt screens downstream from any construction, completion of ditch (canal) relocation and box culvert construction prior to placing fill in the existing canal, sodding of side slopes of causeway fill, and submission of weekly monitoring reports of turbidity before and during construction at certain locations. The letter provided that if monitoring revealed apparent violations of state water quality standards for turbidity, construction activities must cease immediately and not resume until corrective measures have been taken and turbidity has returned to acceptable levels. The letter also required that state water quality standards prescribed in Chapter 17-3, Florida Administrative Code, must be met by the DOT. (Exhibits 21 -22)

2. The general area surrounding the project site consists of partially wooded pasture land and some residential development in the southwest portion. A cypress "head" consisting of almost eight acres lies east of the existing Cypress Strand Canal on the south side of SR-64 in the area where the relocated canal is proposed. The proposed roadway also will go through part of this cypress area. The bald cypress trees there are quite old and most reach a diameter of eight to ten feet. It is considered to be one of the few cypress stands to be found in Manatee County. In order to avoid the construction of bridges for the proposed highway in this area, DOT plans to fill approximately five and one-half acres with consequent removal of most of the existing trees in the filled area. Although there is standing water in the cypress hammock area, only an insignificant amount of surface water flows from there to the canal due to the higher elevation of the canal. It was for this reason that the DER supervisor of the dredge and fill section determined that the cypress head was not contiguous to waters regulated by the department. This decision, which was adopted by the Director of the DER Division of Environmental Permitting, in effect, overruled a recommendation by a DER field representative who had conducted an appraisal of the application and determined that the cypress head acts as a preliminary filtering are before the waters empty into the cypress creek salt marsh which then flows into the Manatee River. Expert testimony establishes that the DER position is correct in this respect and that only an insignificant amount of water leaves the cypress pond area into the canal. (Testimony of Allen, McWilliams, Wanielista, Exhibits 6-13, 17, 18, supplemented by Exhibits 15-16, 20.)

   
   

3. On the north side of SR 64, the proposed relocated canal and roadway would be constructed through a "borrow pit" which covers approximately 39 acres. It is proposed to fill approximately 12 acres of this area. The remainder will contain water which acts as a "kidney" to filtrate water flowing from the canal and this area will be more than sufficient to adequately perform such a function. (Testimony of Allen, Wanielista, Exhibits 17-18.)

   
   

4. The proposed roadway and ramps at the interchange over SR 64 are designated to retard or slow down the surface water movement to minimize degradation of water quality. To this end, the amount of exposed earth fill will be limited to the extent possible, and after the fill is placed in position, various types of erosion control will be accomplished, such as sodding slopes and building earth berms along the top of the roadway. Hay bales will be placed at the "toe" of the slopes during construction to further retard water movement and the introduction of sediment into waterways. Silt barriers termed "Florida diapers" which consist of a floating barrier of vinyl material will be placed strategically to prevent movement of silt past the barrier. This type of screening has proved to be effective in the past in situations involving relatively still water. Although various nutrients, metals, and chemicals will accumulate on the roadway and slopes during operations, the foregoing methods of retarding flow will serve as filters to reduce degradation of water quality. Additionally, depressions will be made in median areas to permit percolation into the roadway fill material. The "infield" or areas inside the circular ramps, consisting of approximately 20 acres, will be vegetated by the planting of some 150 cypress trees. The 80-foot-wide median area will also be vegetated. The concrete box culverts for the crossing of the proposed roadway will replace some 550 feet of the existing canal and will cause a somewhat accelerated flow of water. Overall, however, in the opinion of Respondents' expert witness, runoff from the interchange area will not measurably increase pollution in the Cypress Strand Canal or the Manatee River. It is his view that much of the water will percolate into the interchange ground area and that any remaining

   flow will result in 90 percent removal of pollutants by the various proposed methods of erosion control. In fact, the expert is of the view that the project is "overdesigned" at the present time and that the interchange infield design plus the filtering action that will take place in the borrow pit is more than sufficient to insure minimum degradation of water quality. (Testimony of Allen, Wanielista, Exhibit 13, 23.)

   
   

5. All contracts for DOT roadway construction involve a special clause termed "Erosion Control and Pollution Abatement" that requires the building contractor to perform the various erosion control measures connected with the project. At a preconstruction conference, the contractor is required to tell DOT the specific manner in which such measures will be accomplished. During the construction phase, representatives of DER monitor the progress and recommend any necessary changes to meet State water quality requirements. Similar monitoring is required after construction and during operation of the roadway for the life of the permit. Although no precise data on the extent of any water degradation can be obtained until after construction commences, past experiences of the DER with the standard DOT construction contracts have proved the measures taken thereunder effectively maintain water quality standards. On this basis, the DER determined that DOT had provided reasonable assurances that construction of the interchange would not result in exceeding State water quality standards. (Testimony of Allen, McWilliams.)

   
   

6. Various objections against granting the requested permit have been expressed by members of the public and environmental groups. Although most of these witnesses acknowledge the need for the I-75 extension, they were of the opinion that the roadway should be relocated to the east away from the cypress wetlands area. Additionally, written communications received in evidence from the U.S. Department of Commerce, Florida Division of Forestry, Manatee Health Department, and the United States Department of Fish and Wildlife Service raised objections to the proposed project based upon the elimination of the Cypress Stand area and recommended either relocation of the interchange or preservation of the existing wetlands. (Testimony of Duisburg, Belmont, Miller, Flisik, Matey, Quy, Exhibits 4, 14-16, 19.)

   
   

7. Other public witnesses representing the City Council of Palmetto, Florida, the Board of County Commissioners of Manatee County, Florida, Manatee County Chamber of Commerce, City Commission of Bradenton, Florida, and private interests recommended approval of the application. The testimony of these witnesses and various resolutions from governmental bodies primarily focused on the urgent need for construction of the I-75 interchange to promote the economic and general welfare of the area residents and promote safety on the highways. (Testimony of Gallon, Holland, Prather, Neal, Price, Reasoner, Coates, Wiseman,

   T. Harllee, Jr., T. Harllee, Pinardi, Harden, Exhibits 1-3, 5, 24.)

   
   

   CONCLUSIONS OF LAW

   
   

8. The Amended Petition herein alleges that the issuance of a permit to the DOT for the construction and related excavation and filling of the highway interchange will result in contravention of applicable statutes and regulations prohibiting the degradation of water quality. Specifically, it is contended that construction of the project will result in the complete destruction of a unique and sensitive wetlands area consisting of a strand of bald cypress and associated swamp and marsh system which acts as a natural and efficient nutrient assimilation and water purification system and is the preliminary filtering area for runoff going into the Manatee River, thereby degrading the receiving waters in contravention of law and regulation. It further claims that the DOT has not

   demonstrated that its projects will keep adjacent waters free from deleterious substance resulting from the construction and operation of the facility and resultant runoff. Finally, Petitioner contends that the DOT has not affirmatively shown whether or not appropriate measures will be taken to mitigate the adverse impact of the proposed project on surrounding areas. The remainder of the allegations in the Petition consisting of effects on fish, marine, wildlife, and other natural resources are not in issue by virtue of Petitioner's withdrawal of such counts.

   
   

9. Respondent seeks a permit under the general authority of Section

   403.087 which prohibits the construction of a stationary installation reasonably expected to be a source of water pollution without an appropriate permit issued by the DER. There is a general prohibition contained in Rule 17-4.03, Florida Administrative Code, that any such installation may not receive such a permit until after the DER is assured that the installation will not cause pollution in violation of any of the provisions of Chapter 403 or rules and regulations promulgated thereunder. By its Notice of Intent to grant the permit, the DER impliedly found that the DOT had affirmatively provided reasonable assurance based on its plans, test results, and other information that the construction of the installation would not cause pollution in contravention of DER standards, as required under Rule 17-4.07. Further, the DER by its tentative approval, determined that the installation would be provided with control facilities to abate or prevent pollution to the degree that would comply with the standards. To insure such compliance, the Notice of Intent to grant the permit recited various conditions that the DER would attach to the granting of any permit.

   
   

10. It is impossible, of course, for the DOT to provide absolute assurances that its construction will not violate State standards until such construction commences and appropriate testing can be accomplished. This is recognized by Rule 17-3.05, which provides that the criteria of water quality will be applied only after "reasonable opportunity for mixture of wastes with receiving waters has been afforded"; however, based on the preventive measures to be required during construction of the interchange, and based on past experience with DOT roadway contracts, the DER is satisfied that such standards will not be exceeded or violated during and as a result of construction. This view is buttressed by the expert testimony received at the hearing that the probability of surface water violations is very slight and any pollution produced by runoff would not measurably increase pollution in the Cypress Strand or Manatee River.

    
    

11. It is unfortunate, indeed, that the location of the proposed roadway requires the filling of a wetland area and destruction of the major portion of a cypress tree area; however, the facts establish that the area in question is not under the jurisdiction of the DER under the dredge and fill provisions of Rule 17-4.28 (2) in that the wetland area in question is not a submerged body of water which customarily exchanges waters with a recognized water body as defined in that subparagraph. Instead, it is considered to be an isolated area that only infrequently provides surface flow to the Cypress Strand Canal which in turn eventually discharges into a marsh adjacent to the Manatee River. Although Petitioner sought to show that there was a hydrologic relationship between the cypress area and the Cypress Strand Canal, no competent evidence of an expert in the field of hydrology was presented to support such a view.

    
    

12. It is therefore concluded that Petitioner has failed to establish its contentions by a preponderance of the evidence and that, on the contrary, the evidence presented establishes that the DOT has provided sufficient assurances to the DER that water quality standards will not be violated.

RECOMMENDATION

That the Department of Environmental Regulation issue the requested permit to the Department of Transportation.

DONE AND ENTERED this 19th day of July 1978 in Tallahassee, Florida.

THOMAS C. OLDHAM

Hearing Officer

Division of Administrative Hearings

530 Carlton Building Tallahassee, Florida 32304 (904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 19th day of July 1978.

COPIES FURNISHED:

Honorable Jay Landers, Jr. Secretary

Department of Environmental Regulation 2600 Blairstone Road

Tallahassee, Florida 32301

Alfred W. Clark, Esquire Assistant General Counsel

Department of Environmental Regulation 2600 Blairstone Road

Tallahassee, Florida 32301

James W. Anderson, Esquire Assistant General Counsel Department of Transportation Haydon Burns Building Tallahassee, Florida 32304

Judith Smith Kavanaugh, Esquire

543 Tenth Street, West Bradenton, Florida 33505

Docket for Case No: 78-000675

Orders for Case No: 78-000675