STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

TURTLE LAKE LAND TRUST, )

)

Petitioner, )

)

vs. ) CASE NO. 80-379

) STATE OF FLORIDA, DEPARTMENT ) OF ENVIROMENTAL REGULATION, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a hearing was held before Charles C. Adams, a Hearing Officer with the Division of Administrative Hearings. The hearing was conducted in Room 502, General Daniel "Chappie" James, Jr., Building, 160 Governmental Center, Pensacola, Florida, beginning at 10:00 a.m. Central Time, September 23, 1930.

APPEARANCES

For Petitioner: Michael T. Webster, Esquire

Hosner, Taylor, Van Matre and Baker, P.A.

15 West Strong Street Pensacola, Florida 32594

For Respondent: William M. Deane, Esquire

Department of Environmental Regulation 2600 Blair Stone Road

Tallahassee, Florida 32301

ISSUE

The issue presented here concerns the entitlement of the Petitioner, Turtle Lake Land Trust, to be permitted by the Respondent, State of Florida, Department of Environmental Regulation, to dredge approximately 600,000 cubic yards of material in the area known as Turtle Lake, which is located near Jackson street and Fairfield Drive, Pensacola, Florida. The purpose of this project is to create a manmade lake. The dredged material world be placed on the lake shore.

FINDINGS OF FACT

1. On May 9, 1979, the Respondent, State of Florida, Department of Environmental Regulation, received an environmental permit application from the Petitioner, Turtle Lake Land Trust. The details of that permit application were contained in a form provided by the Department together with attachments to that form. A copy of this permit application may be found as the Respondent's Exhibit No. 2 admitted into evidence. By this application, Turtle Lake requested that it be allowed to dredge approximately 600,000 cubic yards of material in an area known as Turtle Lake, which is located near Jackson Street

   and Fairfield Drive, Pensacola, Florida. The purpose of the excavation was to establish a manmade lake approximately twelve (12) feet in depth in an area which is a cypress swamp and subject to periodic inundation by water. The materials removed from the dredging would be deposited on the shores of the lake, effectively raising the ground elevation at lakeside. The dredging would intersect the groundwater on the project site. The project is part of an overall development which would involve construction of residential housing and commercial facilities in the vicinity of the lake, with the lake to be used for fishing, sailing and other water recreation.

   
   

2. The proposal of the Petitioner was reviewed by the Department and certain timely additional requests were made from the Department to the applicant to provide information necessary to evaluate the request for permit. The exhibits dealing with the request for additional information and responses to those requests may be found as Respondent's Exhibits 3, 5, 8, 9, 10 and 11 admitted into evidence.

   
   

3. The Department solicited comments from the Florida Game and Freshwater Fish Commission on this subject and the comments were provided by correspondence from the Executive Director of the Commission. These comments may be found in Respondent's Exhibit No. 6 admitted into evidence, which is a copy of those remarks.

   
   

4. The Department of Environmental Regulation, in keeping with the provision Subsection 253.124(3), Florida Statutes, performed a biological survey of the project site and submitted it to the Board of County Commissioners of Escambia County, Florida, for the Board's action. A copy of the survey may be found as Respondent's Exhibit No. 7 admitted into evidence. The Escambia County Board of County Commissioners, by Resolution dated October 11, 1979, approved the project subject to action by the Respondent and the United States Corps of Engineers. A copy of this Resolution may be found as the Respondent's Exhibit No. 12 admitted into evidence.

   
   

5. Upon consideration of the permit request, the Department of Environmental Regulation notified the applicant of its intent to deny the permit request. This Letter of Intent to Deny was issued on January 31, 1980, and a copy of it may be found as Respondent's Exhibit No. 13 admitted into evidence.

   
   

6. This matter has been presented for consideration before the State of Florida, Division of Administrative Hearings, upon referral by the Respondent of the original Petition and has been heard after opportunity for and amendment to that Petition. The hearing was conducted on September 23, 1980, as scheduled, in keeping with the provisions of Subsection 120.57(1), Florida Statutes.

   
   

7. The project site is located in a cypress swamp which has also been referred to as a cypress head. The southern boundary of the project site east of Fairfield Drive has an impoundment area which is fringed by pine trees and other upland species, to include gallberry, southern brackin, blackberry and oak. There is within this area aquatic vegetation dominated by Eleocharis sp. and fragrant waterlily (nymphaea odorata).

   
   

8. The cypress head itself, which is bounded on the west by Fairfield Drive, consists of cypress, blackgum, sweetbay and cinnamon fern, fragrant waterlily and pickerel weed (pontederia lanceolata). Within the zone of the cypress head standing water may be found, the dimensions and depths of which were not established at the hearing in sufficient detail to allow further comment in these findings.

9. Fairfield Drive serves to contain the water found in the Turtle Lake swamp on the eastern side of that roadway; however, there is an exit from the cypress head under Fairfield Drive by a series of three 24-inch culverts which connect the manmade ditches. These ditches flow into Bayou Marcus and Bayou Marcus Creek and eventually into Perdido Bay. This water connection is a direct connection and Bayou Marcus, Bayou Marcus Creek and Perdido Bay are waters of the State.

   
   

10. Immediately adjacent to Fairfield Drive east of that roadway in the vicinity the culverts water may be found standing and could be navigated and this may be seen by Respondent's Composite Exhibit No. 14. This water which although subject to navigation wad not identified sufficiently at the hearing to establish its length and breadth. The depth was two to three feet. This water adjacent to Fairfield Drive is not within that area of the proposed excavation.

    
    

11. At present, the storm water runoff from the Forte subdivision located to the north and east of the project site, enters the cypress head swamp and at times of periodic inundation, this storm water runoff arrives at the area of the culverts into the ditch system and into Bayou Marcus, Bayou Marcus Creek and Perdido Bay.

    
    

12. The oils and greases, fertilizers, pesticides, nutrients and other forms of pollutants which make up the storm water constituents are somewhat filtered by the cypress head swamp as it now exists, prior to the entry of those materials into the culvert area adjacent to Fairfield Drive and from there into the transport mechanism constituted of the ditches, bayou, creek and bay.

    
    

13. If the project is built out, the dredging will remove those flora mentioned herein and the fauna which inhabit this swamp and will remove the cypress head from future use by the fauna which normally inhabit this form of environment. It would also take away the natural filtration to be provided by the swamp in the way of removing undesirable storm water constituents from the residential runoff in Forte subdivision and the proposed development associated with the lake construction.

    
    

14. The removal of the swamp would destroy the capacity to convert raw nutrients into usable sources of food for indigenous dawn stream organisms.

    
    

15. As can be seen in the Petitioner's Exhibit No. 1, the existing water table at the site is approximately 23 feet and ordinary highwater elevation has been measured at 24 feet with an existing grade of 21 feet. If the lake were excavated, the lake would show a water table with an elevation of 20 feet. The berm or dykes around the lake would have an elevation of 24 feet. Storm water from the current subdivision and the residential and commercial build-out associated with the project in question would be carried through underground storm water piping into four holding areas which have been referred to by the applicant as drainage corridors and retention area. These areas are separated from the lake by siltation screens and will serve the function of filtering out some storm water constituents which are solid particulates. The constituents which have been dissolved will flow through the siltation screen devices and into the lake proper. When the lake rises to a depth of 23 feet, the excess water will he transported through a proposed ditch into the area of the three culverts under Fairfield Drive and via those manmade conveyances into Bayou Marcus, Bayou Marcus Creek and Perdido Bay.

16. Those storm water constituents such as oils and greases, fertilizers, pesticides, nutrients and other forms of pollutants which have not settled or been filtered will be transported through this system and deposited into waters of the State. In this connection, the drainage corridor and retention areas are not designed for long-term retention; they are primarily for short-term detention, depending on the amount of loading from the storm water runoff. The only pre-treatment associated with the storm water runoff is that filtration that occurs in the drainage corridor and retention area. (There was some discussion of possible gravel filters in conjunction with the drainage corridor and retention area but they were not part of the plan submitted to the Department in the process of project review.)

    
    

17. In addition to the introduction of the storm water contaminants into the waters adjacent to Fairfield Drive at the area of the culverts and the bayou, creek and bay, these contaminants will be introduced into the ground water in the lake proper

    
    

18. Although some increase in retention of storm water runoff may be expected, if the project were built, there would be a significant increase in the introduction of dissolved contaminants into waters over which the Respondent has jurisdiction, i.e., Bayou Marcus, Bayou Marcus Creek and Perdido Bay.

    
    

19. Increases in these areas will occur in biochemical

    oxygen demand and undesirable nutrient and dissolved oxygen levels will decrease if this project is constructed. In association with this change, an increase in nuisance species would occur.

    
    

20. The Petitioner has failed to do any background sampling to establish the natural background levels of the aforementioned conditions in waters of the State in order to identify whether water quality in the receiving waters would be degraded from existing conditions to the extent of violating the Department's water quality criteria.

    
    

    CONCLUSIONS OF LAW

    
    

21. The Division of Administrative Hearings has jurisdiction over the subject matter and the parties to this action.

    
    

22. The Respondent in this action had moved to dismiss this cause due to the alleged non-compliance of the Petitioner with the terms and conditions of the pre-hearing discovery. That motion was ruled upon in the course of the hearing, and the motion was denied.

    
    

23. The Respondent has made a jurisdictional claim for permit authority in accordance with Chapter 253, Florida Statutes, and the attendant rules of the Florida Administrative Code. Upon consideration of the facts presented in the course of this hearing, it is concluded as a matter of law that the area in which the dredging will be done in this project and the area in which those deposits of materials will be made are not subject to navigability within the meaning of Chapter 253, Florida Statutes. Therefore, it is unnecessary for the Petitioner to obtain an environmental permit or permits from the Respondent under the authority set forth in Chapter 253, Florida Statutes, and the associated regulatory provisions set forth in tha Florida Administrative Code.

    
    

24. Rule 17-4.28, Florida Administrative Code, states the following:

    "17-4.28 Dredging and/or Filling Activities; Permits, Certifications.

    1. Regardless of whether a permit is required, all dredging and/or filling activities conducted in or connecting to waters of the State shall comply with Chapter 17-3, Florida Administrative Code.

       Compliance shall be in regard to the

       long-term, as well as the short-term effects of the projects.

    2. Those dredging and/or filling activities which are to be conducted in or connected directly or via an excavated water body or series of excavated water bodies to the following categories of waters of the State (including the submerged lands of such waters and transitional zone of a submerged land) shall obtain a permit from the Department prior to being undertaken:

       1. rivers and natural tributaries thereto;

       2. streams and natural tributaries thereto;

       3. hays, bayous, sounds, estuaries, and natural tributaries thereto;

       4. natural lakes, except those owned entirely by one person and except for lakes that become dry each year and are without standing water together with lakes of no more than ten (10) acres of water area at a maximum average depth of two (2) feet existing throughout the year;

       5. Atlantic Ocean out to the seaward limit of the State's territorial boundaries;

       6. Gulf of Mexico out to the seaward limit of the State's territorial boundaries;

       7. natural tributaries do not include intermittent natural water courses which act as tributaries only following the occurrence[sic] of rainfall and which normally do not contain contigous[sic] areas of standing water.

       
       

       The Department recognizes that the natural border of certain water bodies listed in Section 17-4.28(2) may be difficult to establish because of seasonal fluctuations

       in water levels and other characteristics unique to a given terrain. The intent of the vegetation indices in subsections 17-4.02(17) and (19) is to guide in the establishment of the border of the water bodies listed in Section 17-4.28(2). It is the intent of this rule to include in the boundaries of such water bodies areas which are customarily submerged and exchange waters with a recognizable water body as described in Section 17-4.28(2)(i.e., submerged lands and

       transitional zones of submerged lands). Isolated areas which infrequently exchange water with a described water body in Section 17-4.28(2) and/or provide only insignificant benefit to the water quality of a

       water body as described in Section 17-4.28(2) are intended to be defined as uplands and excluded from the definition of submerged lands'. The vegetation indices defining 'submerged lands' and

       'transitional zone of a submerged land' are presumed to accurately delineate said submerged lands and transitional zones."

       
       

25. The facts in this case establish that the dredging and filling activities of the Petitioner ore connected by a series of excavated and natural water bodies to waters of the State, namely, Perdido Bay, Bayou Marcus and Bayou Marcus Creek. This activity by the Respondent in dredging and filling is of such dimension that a permit is required by Rule 17-4.28, Florida Administrative Code, and in keeping with the requirements of that provision it is necessary for the Respondent to establish reasonable assurances that the short-term and long- term effects of the activities will not violate water quality criteria, standards, requirements and provisions of Chapter 17-3, Florida Administrative Code.

    
    

26. Perdido Bay, Bayou Marcus Creek and Bayou Marcus are Class III waters within the meaning of Rule 17-3.081, Florida Administrative Code. The project of the Petitioner will promote substantial changes in these receiving waters which would tend to degrade the existing quality of those waters. These changes will be in the form of introduction of oils and greases, fertilizers, pesticides, undesirable nutrients, and changes in dissolved oxygen and biochemical oxygen demand.

    
    

27. Rules 17-3.061, Florida Administrative Code, and 17-3.121, Florida Administrative Code, set forth standards related to these changes, by establishing acceptable levels of the materials discussed. The Petitioner has failed to do any specific testing which would establish the necessary reasonable assurances that the criteria set forth in the subject rules will not be violated and, consequently, it is not entitled to the permit.

    
    

28. Section 403.087, Florida Statutes, creates another permit requirement separate and apart from Rule 17-4.28, Florida Administrative Code. That provision indicates that if a stationary installation is involved which will reasonably be expected to be a source of water pollution either in its operation, maintenance or construction, it must have a currently valid permit issued by the Respondent. The dredging and filling activity of this project constitutes an installation" within the meaning of Subsection 403.031(8), Florida Statutes, and it can reasonably be expected to be a source of water pollution and in fact it will promote pollution as defined by Subsection 403.031(2), Florida Statutes. Therefore, it becomes incumbent upon this Petitioner to satisfy the water quality criteria set forth in the Number Four

    (4) to these Conclusions of Law before the general permit authorized by Section 403.087, Florida Statutes, may be granted. As stated before, the Petitioner has conducted no specific testing and has failed to establish that the water quality criteria would not be violated, ergo, no permit nay be granted under this general permit authority.

29. In keeping with the express authority set forth in the footnote to the rule, the Department has enacted Rule 17-3.071, Florida Administrative Code, which, in conjunction with Rule 17-4.245, Florida Administrative Code, creates the requirement for the permitting of a "zone of discharge" in conjunction with ground water discharges.

    
    

30. The excavation of the lake in question will involve the introduction of ground water into the lake. Those categories of pollution which have been spoken to in these Conclusions of Law will be dispersed into this lake/"zone of discharge" and taken from these ground waters into the transport system and eventually into Perdido Bay, Bayou Marcus Creek and Bayou Marcus.

    
    

31. The Petitioner has failed to affirmatively demonstrate that the proposed ground water discharge will not cause significant adverse effects to the designated uses of the adjacent ground waters to the project site and, in particular, those surface waters of the several water bodies discussed in the above paragraph.

    
    

32. Under the circumstances, the ground water permit is necessary and the Petitioner has failed to demonstrate its entitlement to that permit.

RECOMMENDATION

Based upon a full consideration of the facts as presented and the Conclusions of Law reached in this matter, it is

RECOMMENDED that the Secretary of the State of Florida, Department of Environmental Regulation, deny the Petitioner a dredge and fill permit pursuant to Rule 17-4.28, Florida Administrative Code; a construction, operating and maintenance permit pursuant to Section 403.087, Florida Statutes; a ground water permit in accordance with Rules 17-3.071, Florida Administrative Code, and 17- 4.245, Florida Administrative Code; and be it further

RECOMMENDED that the Secretary take no further action to require a permit(s) as might be indicated in keeping with Chapter 253, Florida statutes. 1/

DONE AND ENTERED this 22nd day of October, 1980, in Tallahassee, Florida.

CHARLES C. ADAMS

Hearing Officer

Division of Administrative Hearings The Collins Building

Tallahassee, Florida 32301

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 22nd day of October, 1980.

ENDNOTE

1/ The Respondent in the person of its counsel had provided Proposed Findings of Fact, Conclusions of Law and a Recommended Order, to which the Petitioner through its counsel offered written exceptions presented to the Hearing Officer. These matters have been reviewed prior to the entry of this Recommended Order and to the extent that the matters are consistent with this Recommended Order, they have been utilized in its preparation. To the extent that the matters presented by the parties through their counsel are inconsistent with this Recommended Order, they are hereby rejected.

COPIES FURNISHED:

Michael T. Webster, Esquire Hosner, Taylor, Van Matre and

Baker, P.A.

15 West Strong Street Post Office Box 747 Pensacola, Florida 32594

William W. Deane, Esquire Department of Environmental

Regulation

2600 Blair Stone Road Tallahassee, Florida 32301

Jacob D. Varn, Secretary Department of Environmental

Regulation

2600 Blair Stone Road Tallahassee, Florida 32301

Docket for Case No: 80-000379

Orders for Case No: 80-000379