Helbling, and Jeremy Craft. Respondent's Exhibits 1 through 5 and Exhibit 8 were presented and accepted into evidence.
Members of the public gave testimony, namely: William Schulthorpe, Rosemary Bondus, Nathaniel Funke, Pat Hopkins Fry, Jerry Potter, Sheila Buffield, and Judith Clark. Those witnesses presented nine (9) exhibits which 7 were received into evidence.
This hearing was occasioned by the Respondent's denial of (an) environmental permit(s) requested by the Petitioner, Baker Cut Point Company, a corporation owned by James C. Dougherty. The Respondent has asserted permit jurisdiction pursuant to Chapters 253 and 403, Florida Statutes, and attending regulatory provisions of Chapter 17, Florida Administrative Code. The Petitioner requested a formal hearing to consider the matters in dispute, and that hearing was conducted on the dates indicated before and in keeping with Subsection 120.57(1), Florida Statutes.
The Petitioner owns land in Monroe County, Florida, identified as Buccaneer Point. This parcel of land is a peninsula which extends from the west side of Key Largo, Florida, and has as its essential features two interior lakes and well-defined mangrove stands to include red mangroves (Rhizophora mangle) and black mangroves (Avicennia germinans). This parcel of land is bordered on the north by Buttonwood Sound and on the south by Florida Bay, navigable water bodies. Respondent's Exhibit No. 1, admitted into evidence, depicts the present condition of the parcel of land, with the exception of proposals involved in the permit review process, which are the subject of this Recommended Order and the companion case of James C. Dougherty v. State of Florida, Department of Environmental Regulation, DOAH Case No. 80-1055. At present, the two lakes do not offer normal access to Buttonwood Sound and Florida Bay, nor do they offer an interior water connection between the two lakes. The southernmost lake does have intermittent water exchange with Florida Bay. Those lakes are identified as North Lake and South Lake.
The Petitioner had initially applied for permission to place 75,000 cubic yards of clean limerock fill at the project site and indicated that the fill would be placed landward of the mean high water line. That fill would have covered approximately 17.56 acres in the residential subdivision.
The application was made on October 27, 1978. See Petitioner's Exhibit No. 20, admitted into evidence. The Respondent issued an Intent to Deny the permit connected with that request, and that Intent to Deny was issued on April 3, 1980, asserting permit jurisdiction by the Respondent under the provisions of Chapters 253 and 403, Florida Statutes. See Petitioner's Exhibit No. 5, admitted into evidence.
The Petitioner modified the permit application effective April 24, 1981. Under the terms of the revised permit application, the Petitioner would place limerock fill over 5.7 acres, including mangroves, constituting
approximately 30,000 cubic yards of fill. Additionally, the applicant modified the permit request to include filling the exterior rim of the interior lakes to create a littoral zone and the placement of a berm at that exterior. See Petitioner's Exhibit No. 6, admitted into evidence. The project, as contemplated, allows for a preserve area of mangroves along the northern end of the peninsula and also employs a "pad" concept to preserve the mangrove acreage where fill is to be placed. Those "pads" for houses would be bordered by six- inch dikes to divert upland runoff which might find its way into the interior lakes on the property.
The fill material to be placed in those areas, other than the lakes, would be placed above or landward of the line of mean high water, as determined by the mean high water line survey found in Petitioner's Exhibit No. 1, admitted into evidence, dating from December, 1975, and whose methodology was approved on January 15, 1980, for purposes of Chapter 177, Florida Statutes, through the offices of the State of Florida, Department of Natural Resources. This factual determination is also borne out by a review of the Petitioner's Exhibit No. 6, in pari materia with Respondent's Exhibit No. 1 and Petitioner's Exhibit No. 1.
As the lakes are now constituted, the placement of the limerock fill at the fringe of the lakes would not be waterward of the line of mean high water; however, when the placement of this fill material is considered in view of the permit request made in Division of Administrative Hearings' Case No. 80-1055, which permit request attempts to open up the lakes by direct water connection to the aforementioned navigable water bodies, then the placement of the fill would be below the line of mean high water. See Petitioner's Exhibit No. 6. Therefore, treatment of the placement of fill for purposes of this case will be considered on a basis that the lakes remain landlocked and the matter of the placement of this fill will be a matter assumed in the Division of Administrative Hearings' Case No. 80-1055, dealing with an attempt to open those lakes by direct water connection to navigable waters of the State.
Although the mangrove areas to be filled by the project are landward of the mean high water line, those mangroves are inundated by water at times and considered to be "submerged lands" adjacent to the State water bodies, Buttonwood Sound and Florida Bay.
If the mangroves are removed, part of the ecosystem's ability to filter sediments and nutrients contained in stormwater runoff of adjacent upland areas and from tidal flows will be destroyed and will affect water quality considerations for adjacent open bay estuarine or marine systems. The extensive root system of the mangroves and associated vegetation assist in stabilization of estuarine shoreline sediments and attenuation of storm generated tides. Even though some of the mangroves in the proposed area for fill are in a stressed condition, i.e., a condition in which their growth is stunted, if left alone, those mangroves would flourish and provide the same water quality functions as healthy mangroves.
A biologist presented by the Petitioner identified the number of mangrove species, the number of mangroves, the diameter of those mangroves and the height of canopies of the mangroves in areas of the project site. These items were summarized through the use of the Holdridge Complexity Index, which measures structural complexity of mangroves within the sites. See Petitioner's Exhibit No. 17, admitted into evidence. In particular, four such station pairs were studied and the pairs were constituted of a station within the basin of the mangrove stand and a station at the fringe of the mangroves. There was a site at each proposed waterway and a site at the northeastern and western points of
the peninsula, the area of the proposed mangrove preserve. See Petitioner's Exhibit No. 6, admitted into evidence. This study indicated that fringe mangroves are more developed than the ones in the heart of the basins. This study also revealed that the upland fill would remove primarily black mangroves.
The removal of the mangroves and placement of fill would be in furtherance of the creation of twelve to fourteen residential lots, the majority of which would be located on Florida Bay. See Petitioner's Exhibit No. 6. In furtherance of the intention to offer these lots for sale, the Petitioner has sold one of the lots on Florida Bay for $95,000 on or about June 2, 1981. If the proposed utilization of the property in question was not allowed, the Petitioner stands to lose money in his investment in the face of preliminary developmental expenses which, at present, exceed monetary returns from the sale of lots.
The area in which the upland fill would be placed is porous limerock, which allows water to seep through and be transported underground to adjoining water bodies, both on site and off site, in addition to the runoff from the upland areas. To address these concerns, the Petitioner has planned for the installation of dikes in the various upland areas which are to be built to prohibit drainage into the remaining mangrove areas and ambient waters. The littoral zones around the edge of the inland lakes would promote marine and wetland vegetation which assists in the function of filtration of sediments and nutrients.
On the subject of water quality considerations, the use of the clean limerock fill, which is calcium carbonate, would tend to stabilize seawater at its natural PH level, thereby allowing the specific conductance (measurement of salinity) of the lakes and surrounding ambient waters to remain in a natural state in terms of direct effects of the fill material.
On the subject of contamination of water by copper, normally, seawater contains 3 micrograms per liter of copper. In a project such as this one, it is not expected that higher amounts of copper would be found, and the limerock contains only trace amounts of copper, if any. Specific testing done at the project site reveals less than 1 microgram per liter of copper in the North Lake and 4 micrograms per liter in the South Lake. Therefore, the activity is not expected to increase the levels of copper to the extent that measurements exceed
500 micrograms per liter in either the lakes or surrounding waters.
In dealing with the substance of zinc, seawater contains as much as 30 micrograms per liter of zinc. Sampling by the Petitioner indicated 2 micrograms per liter in the North Lake and 8 micrograms per liter in the South Lake of that substance. The activity and the development is not expected to increase the levels of zinc to the extent that measurements exceed 1,000 micrograms per liter in either the lakes or surrounding waters.
In sampling for lead content, the samples revealed less than 50 micrograms per liter of lead and the placement of limerock fill will not cause the amounts of lead in the lakes and surrounding waters to exceed 50 micrograms per liter.
Testing for phenolic compounds at the site revealed that these materials were below established standards of the Respondent, and it is not expected that those standards will be exceeded through activities proposed in this permit process.
The testing for oils and greases indicated less than 1 milligram per liter of oils and greases, which is below the State's standard of 15 milligrams per liter, and the activities proposed at the project site are not anticipated to exceed 15 milligrams per liter of oils and greases.
Normal PH for coastal waters is 6 to 8.5, and the PH levels of the lakes and ambient waters in the area were in the range of 8, except for measurements done in the winter at the North Lake, where they were shown to be
7.5. The placement of limerock fill will not cause an imbalance in the pH readings.
The activity as proposed will not add substances which are created by industrial or agricultural means or cause other discharges, colors or odors, or otherwise promote a nuisance condition in the ambient waters or the lakes.
Measurement was made to toxic materials in the way of synthetics, organics or heavy metals. Those tests in the lakes and ambient waters showed heavy metals to be at low levels. There were no sources revealed of synthetics or organics. (The calcium carbonate found in the limerock fill would assist in breaking down lawn pesticides into phosphate.) In summary, the filling, as proposed, is not expected to promote the introduction of toxic substances into the lakes or surrounding waters.
The placement of the clean limerock fill in the upland area is not expected to cause problems with turbidity in the lakes or ambient waters, which turbidity would exceed 50 Jackson Units above background.
The filling will not affect dissolved, oxygen levels of the surrounding waters.
Biochemical oxygen demand, the measurement of demand for oxygen of organic and chemical materials in the water, will not be influenced by the placement of the clean limerock fill related to surrounding waters. The limerock fill is not expected to introduce other oxygen demanding materials into the subject waters, such that dissolved oxygen levels would be lowered by BOD loading.
There will be no problem with dissolved solids, in this instance, salts, due to the fact that calcium carbonate fill would not affect the dissolved solids in the ambient waters or in the lakes.
Coastal water PH normally measures 6 to 8.5 and PH for open waters in the range of 1. Placement of calcium carbonate fill on the uplands would not cause the PH in the Class II waters in Everglades National Park, which is 300 feet east of Baker Cut Point, to vary above or below normal levels for either coastal or open waters. In addition, there would be no discharge of toxic substances from the calcium carbonate fill into the Class II waters herein described.
Tests conducted in the vicinity of homesites utilizing septic tanks, and specifically as sampled in waters adjacent to Buccaneer Point and the subject lakes in a development known as Private Park and Buttonwood Sound , indicated less than one fecal coliform bacterium per 100 milliliters. See Petitioner's Exhibit No. 14, admitted into evidence. Anticipated setbacks for additional septic tanks to be associated with the buildup at the project site would be in keeping with the requirements of Monroe County, Florida, and harmful septic tank leachate is not expected to be a problem.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the subject matter and the parties to this action. Section 120.57, Florida Statutes.
The Respondent has claimed permit jurisdiction in keeping with the provisions as set forth in Chapter 253, Florida Statutes, and Rule 17-4.29, Florida Administrative Code. The activities contemplated by this permit request are not found at or below the mean high water line and the Respondent is without jurisdiction under the terms and conditions of the aforementioned statute and rule.
The matters under consideration, pursuant to this permit request, are subject to jurisdiction in keeping with Chapter 403, Florida Statutes, and in particular Section 403.087, Florida Statutes, in that the placement of fill constitutes a "stationary installation." In turn, the Petitioner must comply with those provisions as set forth in Rule 17-4.28(2), Florida Administrative Code, dealing with dredging and/or filling activities in "submerged lands" as defined in Rule 17-4.02(17), Florida administrative Code.
The Petitioner must also comply with water quality criteria as set forth in the letter of intent to deny, in view of the potential for water quality violations in surrounding waters over which the State, has jurisdiction, namely Buttonwood Sound and Florida Bay. Those water quality criteria are as set forth in: Rule 17-3.061(2)(g), turbidity; Rule 17-3.121 (14), dissolved oxygen; Rule 17-3.061(2)(b), BOD; Rule 17-3.091 (14), dissolved solids; Rule 17- 3.061(2)(n), specific conductance; Rule 17-3.061(2)(e), copper; Rule 17- 3.061(2)(r), zinc; Rule 17-3.061(2)(1), phenolic compounds; Rule 17-3.061(2)(h), lead; Rule 17-3.061(2)(j), oils and greases; Rule 17-3.061(2)(k), pH; Rule 17- 3.061(2)(o), toxic substances; Rule 17-3.05(1)(c), deleterious substances; Rule 17-3.121(5), bacteriological quality.
The obligation on the part of the Respondent is to give reasonable assurances that these water quality parameters will not be violated by the short and long-term effects of its "stationary installation." Rule 17-4.28(3), Florida Administrative Code.
The fill activities associated with the present permit request are not likely to violate any of the aforementioned water quality standards, that is to say that the Petitioner has given reasonable assurances concerning the short and long-term effects of the placement of the fill, as it might affect the subject water quality criteria.
The project in question is in conformance with Subsection 403.021(2), Florida Statutes, concerning water conservation.
Efforts at stormwater management, related to the filling activities are adequate to protect water quality within the meaning of Chapter 403, Florida Statutes. Those constituents of stormwater runoff and, in particular, coliforms and metals detected in comparison sites where developments had occurred were below State standards for water quality.
If the lots to be filled were subsequently used as homesites, with associated septic tanks, measurement of fecal coliforms at sites where specific
testing was conducted by the Petitioner were not shown to violate the State standards set forth in Rule 17-3.121(5), Florida Administrative Code.
Any other concerns on the question of the utilization of septic tanks must be considered in keeping with local ordinances and the provisions of Chapter 10D-6, Florida Administrative Code, which is a rule administered by the State of Florida, Department of Health and Rehabilitative Services, dealing with septic tank useage in the State of Florida. If the lots upon which the fill material is to be placed were subsequently utilized for homesites with associated septic tanks and upon compliance with the requirements by local government and the Department of Health and Rehabilitative Services, there was still some showing of violation of water quality standards in the future, the Respondent could take such action as would be necessary to prohibit violations of water quality standards through the process of administrative action on a notice of violation. In the interim, the Petitioner has satisfied permit requirements associated with this project, i.e., the filling of the land areas in question and the Respondent is not called upon to deal with the sewage disposal in advance in secondary waste treatment questions associated with septic tanks. Subsection 403.086(3), Florida Statutes.
The filling activity being sufficiently close to the Everglades National Park, a Class II water body, the Petitioner must give reasonable assurances that Class II water quality criteria related to pH and toxic substances within the Everglades National Park shall not be violated. Petitioner has given such assurances related to those substances and in keeping with the previous ruling of the Hearing Officer made at the hearing, those are the only substances which must be addressed by this showing.
In summary, based upon a full consideration of the facts found, conclusions of law and other matters related to this hearing, it is
