STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

BROWARD COUNTY, )

)

Petitioner, )

)

vs. ) CASE NOs.: 80-1048

) 80-1049

FLORIDA WILDLIFE FEDERATION, ) 80-1460

INC.; ENVIRONMENTAL COALITION OF ) BROWARD COUNTY, INC.; WILDLIFE ) CONSERVATION LEAGUE OF PALM ) BEACH COUNTY, INC.; BROWARD ) COUNTY AIRBOAT, HALFTRACK AND ) CONSERVATION CLUB, INC.; BROWARD ) COUNTY ENVIRONMENTAL QUALITY ) CONTROL BOARD and FLORIDA )

AUDUBON SOCIETY, )

)

Intervenors-Petitioner, )

)

vs. )

) STATE OF FLORIDA, DEPARTMENT OF ) ENVIRONMENTAL REGULATION and ) SOUTH FLORIDA WATER MANAGEMENT ) DISTRICT, )

)

Respondents, )

)

and )

) ALICO, INC.; HILLARD BROS. OF ) FLORIDA, INC.; EVELYN JACKMAN ) AND SONS, INC.; ROBERT DICKSON ) and HENDRY COUNTY, )

)

Intervenors-Respondent. )

)

)

RECOMMENDED ORDER

Pursuant to notice the Division of Administrative Hearings by its designated Hearing Officer, Michael Pearce Dodson, held the final hearing in this case on November 17-20, 1980 and held a supplemental final hearing on May 21, 1981, in West Palm Beach, Florida. The following appearances were entered:

APPEARANCES

For Petitioner-- Kenneth F. Hoffman, Esquire Broward County: OERTEL & LARAMORE, P.A.

646 Lewis State Bank Building Tallahassee, Florida 32301

and

Annette Star Lustgarten, Esquire Assistant General Counsel Broward County Board of County

Commissioners

201 Southeast Sixth Street Fort Lauderdale, Florida 33301

For Respondent: Stephen A. Walker, Esquire and South Florida Stanley J. Niego, Esquire Water Management 3301 Gun Club Road

District: Post Office Box V

West Palm Beach, Florida 33402

For Respondent: Alfred W. Clark, Jr., Esquire and State of Florida Alfred J. Malefatto, Esquire Department of Twin Towers Office Building Environmental 2600 Blair Stone Road

Regulation: Tallahassee, Florida 32301

For Intervenors/Respondent Philip S. Parsons, Esquire Alico, Inc., Hillard Bros. AUSLEY McMULLEN McGEHEE

of Florida Inc., Robert CAROTHERS & PROCTOR Dickson, Evelyn Jackman 227 South Calhoun Street and Sons, Inc. and Hendry Post Office Box 391

County: Tallahassee, Florida 32302

For Intervenor/Respondent: William E. Stockman, Esquire Evelyn Jackman and SULLIVAN BANAGHAN BAILEY

Sons, Inc.: & GLEASON, P.A.

301 First Federal Building 2335 East Atlantic Boulevard Pompano Beach, Florida 33062

For Intervenors/Petitioner: Timothy Keyser, Esquire Florida Wildlife Post Office Box 92

Federation, Inc., Interlachen, Florida 32048 Environmental Coalition of

Broward County, Inc., Broward County Airboat, Halftrack and Conservation Club, Inc. and Wildlife Conservation League of

For Intervenor/Petitioner: Rick L. Cullen, Esquire Broward County Suite 1820 Home Federal Tower Environmental Quality 1720 Harrison Street

Control Board: Post Office Box 27 Hollywood, Florida 33022

As a Public Witness on

Behalf of the Florida Charles Lee, Vice President Audubon Society, Inc. Florida Audubon Society and the Broward County Post Office Drawer 7 Audubon Society, Inc.: Maitland, Florida 32751

PROCEDURAL HISTORY

These proceedings began on June 3, 1980 when Petitioner, Broward County filed with Respondent, Department of Environmental Regulation (DER) a request for a formal hearing on the Department's intent to issue a permit to the South Florida Water Management District (SFWMD) to allow it to construct a flood control project known as the Hendry County Project. Simultaneously, Broward County filed a request for a formal hearing to review the action of the Department in entering into a stipulation with SFWMD that "local approval"1/ is not required for the Hendry County Project. The two foregoing requests for hearing were forwarded to the Division of Administrative Hearings for the assignment of a Hearing Officer and the scheduling of a final hearing. The permit case is numbered 80-1048. The stipulation case is numbered 80-1049. On July 2, 1980, Alico, Inc., Hillard Bros. of Florida, Inc., Evelyn Jackman and Sons, Inc. and Robert Dickson2/ were allowed to intervene on the side of the Respondents in the mentioned cases. They in turn, on July 14, 1980, filed a Petition for Formal Hearing on the Department's amendment to its letter of intent dated June 26, 1980.3/ This third case was also forwarded to the Division of Administrative Hearings and is numbered 80-1460.4/ While the alignment of the parties in 80-1460 differs from their positions in 80-1048 and 80-1049, they will be referred to throughout this Order as they appear in 80- 1048 and 80-1049. On July 2, 1980, cases 80-1048 and 80-1049 were consolidated for all further proceedings. Later, on September 10, 1980, case 80-1460 was joined with them.

At various stages of this proceeding several parties were allowed to intervene on the side of Broward County. They include Florida Wildlife Federation, Inc., Environmental Coalition of Broward County, Inc., Broward County Airboat, Halftrack and Conservation Club, Inc., Wildlife Conservation League of Palm Beach County, Inc., Broward County Environmental Quality Control Board and Florida Audubon Society. Hendry County, Florida intervened on the side of Intervenors-Respondent

The final hearing which was originally set to begin on September 15, 1980, was continued until November 17, 1980. In response to a Motion to Open Record to introduce new evidence filed by Broward County, a supplemental final hearing was held on May 21, 1981, in West Palm Beach, Florida. On September 23, 1981 Petitioner filed a Motion To Dismiss Permit Application. The Motion was heard by a telephone conference call and denied on October 9, 1981.

At the conclusion of the final hearing on November 20, 1980 the Hearing Officer at the request of the parties took a view of the project site. He was accompanied by Kenneth F. Hoffman, Esquire, who was chosen as a representative of the Petitioner and its supporting Intervenors and by Stephen A. Walker, Esquire, who represented the Respondents and their supporting Intervenors. The view was a helicopter survey along the length of existing levees, L-1, L-2, L-3 and L-4.

Exhibits

At the final hearing and at the supplemental final hearing the following exhibits were offered and received into evidence.

For Petitioner Broward County:

P-1 through P-3. Supplemental Exhibits 1 and

2. The reception of Exhibit P-3 was limited to exclude hearsay statements made by persons appearing before the Broward County Board of County Commissioners. The County Commission Minutes are admitted for the purpose of show- ing the County's action taken pursuant to 253.124, Florida Statutes.

For Intervenors/Petitioner Florida Wildlife Federation, et al.: F-1 through F-3. The reception of Exhibit

F-1 was limited to exclude hearsay evidence

therein which is not independently supported.

For Respondent Department of Environmental Regulation:

D-1. This exhibit consists of the entire permitting file from the DER for the Hendry County Project. The file was received as evidence of what occurred in the processing

of the permit application. The facts asserted in the various memoranda are not, by them- selves, accepted as true because of their hear- say nature.

For Intervenor/Petitioner Broward County Environmental Quality Control Board:

Exhibits E-1 and E-2.

For Respondent South Florida Water Management District: Exhibits A-1 through A-8.

For Intervenors/Respondent Alico, et al.

Exhibits I-1 through I-6.

During the course of the hearing official notice was taken of the Broward County Code including all of Chapter 27, the Broward County Environmental Quality Control Act.

At the conclusion of the final hearing and supplemental final hearing, excellent proposed Findings of Fact and proposed Recommended Orders were filed by the parties. To the extent that the proposed findings submitted by the parties are not reflected in this Order, they are rejected as either not being supported by the weight of admissible evidence or as being irrelevant to the issues determined here. Agrico Chemical Company v. Department of Environmental Regulation, 356 So.2d 759, 763 (Fla. 1st DCA 1979).

FINDINGS OF FACT

Existing Conditions

1. Between 1952 and 1957 the United States Army Corps of Engineers (Corps) and the Florida Central and Southern Flood Control District (the forerunner of SFWMD) constructed a chain of levees, L-1, L-2, L-3 and later L-4 in eastern Hendry County, Florida. These levees which begin approximately 10 miles to the southwest of Lake Okeechobee run first east, then south and then east again for a distance of approximately 38 miles. The purpose of these levees is to shield the land5/ to the east of them from the natural sheet flow of water which comes from the west during the area's rainy season. The EAA which is protected from natural flooding consist of rich muck soils which have been successfully exploited for years by sugar cane farming.

   
   

2. The present levees were created by excavating a "borrow" canal parallel to the southern and western sides of L-1, 2, 3 and 4. The borrow canal is no larger than was required to provide sufficient material for construction of the levees; nevertheless, the canal has a considerable water carrying capacity in the amount of 1,260 CFS 6/ at peak flow. The canal is a navigable fresh water of the state. It interconnects into other navigable canals which terminate in either Lake Okeechobee or the Miami River.

   
   

3. The water carried by the borrow canal flows south and discharges into the Miami canal via either a pumping station designated S-8, or via the borrow canal next to L-28.7/ The water which enters the Miami canal ultimately travels to canal C-60 and then into the section of WCA-3 south of Alligator Alley (State Road 84).

   
   

   Flooding

   
   

4. The rain water which once moved from west to east directly across the eastern portion of Hendry County, Florida into the EAA is now interdicted by L- 1, 2 and 3. As a result it ponds in the corner of the intersection of L-1 and L-2 (known in these proceedings as the L-1 angle).

   
   

5. The area flooded is grass land used by Hendry County ranchers for the open grazing of beef cattle. Some of the pasture is improved, that is fertilized, but the majority of the area is unimproved range. During flood times the ranchers move their cattle to alternative pastures either to the north or to the west. The deepest flooding, when it occurs, is immediately next to the levees in the L-1 angle. The flooding has been known to reach depths as great as 10 feet and to extend westward for several miles. Because the land to the west of the L-1 angle is higher, the depth of the flooding decreases in a westerly direction. The duration of the ponding immediately in the L-1 angle has been as long as 80 days after a prolonged and heavy rainfall event. This flooding occurs despite the capacity of the borrow canal to remove 0.18 inch of flood water per day from the inundated area.

   
   

6. When there is flooding in the L-1 angle there is also high water In the northeast corner of WCA-3A where some of the water from the borrow canal is presently discharged. During a dry season the land immediately adjacent to the present borrow canal suffers overdraining due to seepage of ground water into the canal and its resulting evaporation or conveyance south.

7. Water Conservation Area 3A is part of a series of conservation areas established as their name implies to conserve water. Extending over portions of several South Florida counties including Palm Beach, Broward and Dade, they provide the recharge source for the Biscayne Aquifer and other aquifers which are the water supply for metropolitan South Florida. The water conservation areas are also wildlife refuges and provide natural habitats for numerous South Florida animals such as deer, alligator, and wading birds.

   
   

   Description of Project

   
   

8. The Hendry County plan as described by the Corps in General Design Memorandum No. 2, 8/ envisions the construction of a flood control canal, C- 139, with two water flow control structures, S-239 and S-243. To create C-139, the Corps plans to further excavate the existing borrow canal next to L-2, L-3 and L-4 for a total distance of 37 miles. See Illustration I.* This excavation will result in the removal of 5.2 million cubic yards of earth and limestone. Some of the resulting spoil will be used to create a levee along the west side of C-139. Most of the excavation will be done by draglines on the canal banks. Upon its completion C-139 will be an immense water conveyance. At its northern end the canal will be only five feet across the bottom with a depth of 10.6 feet, but by the time the canal reaches WCA-3A it will have enlarged to a bottom width of 80 feet across and a depth of 19.5 feet. Its peak design capacity is 3,000 CFS. That is more than twice the present capacity of the existing borrow canal. Downstream from S-239 C-139 turns south to be designated C-139(S) and to gradually become increasingly shallower. This will cause a discharge pattern designed to create a sheet flow across WCA-3A.

   
   

   Benefits, Future Land Use

   
   

9. It appears that when levees L-1, 2 and 3 were constructed the Corps failed to fully consider the adverse effect which would result from the impoundment of water by the new levees. According to the General Design Memorandum,

   
   

   Levees 1, 2, 3 and 4 were constructed in the mid 1950s to prevent flood waters originating on the then sparsely developed lands westward of the levees from contri- buting to flooding on the rich agricultural lands lying to the east of the levees. The original borrow canals were sized based on materials needed for the levee construction.

   The sparse economic development of the lands to the west precluded increasing the con- veyance capacity of these canals to prevent flooding on those lands. Construction of the levees and the subsequent increased de- velopment over the drainage area have aggra- vated flooding problems on the lands. Water

   stands on some of the land during practically the entire wet season virtually every year.

   As the landowners developed the land, they became increasingly vociferous about con- struction of works to alleviate the flooding for which they contend is project-induced.

   There is merit in their contention in that the adjacent project works adversely affected

   both depth and duration of flooding in the

   area west of Levees 1, 2 and 3. (Emphasis added)

   
   

   The facts presented at the instant final hearing are somewhat to the contrary, in that there was no showing of significant subsequent development west of the levees after their construction. For many decades vast family ranches have raised cattle on the mentioned lands as they continue to do today. The primary purpose of the proposed project is to now provide flood control to an approximately 261 square mile drainage basin west of the flood-causing levees.9/

   
   

10. With a design capacity of 3,000 CFS, C-139 can handle twice the water which drains through the present borrow canal. By way of comparison the present canal has a drainage capacity of .18 inches per day from the flooded area during a ten-year flood,10/ while C-139 has the capacity to drain .43 inches per day. This heightened discharge rate will cause land in the L-1 angle to flood less, and once flooded, to be underwater for a shorter period of time. For instance, an area which during a ten-year storm might have been submerged for 40 days prior to the construction of the project Is estimated to have an inundation period of only 10 days upon the project's completion.

    
    

11. The significance of the reduced flooding to the landowners in the flooded area is difficult to gauge from the evidence. Because an intensification of land use would result in a lowering in the quality of the water which runs off the land and into C-139 and thence into the environmentally sensitive water conservation area,11/ the landowners supporting the project were understandably reluctant to testify that the project will allow them to use their land for more than continued cattle grazing.

    
    

12. The testimony of Mr. Joe Hillard, a partner in Hillard Bros. of Florida, Inc., one of the larger ranches is illustrative:

    
    

    Q If this project, the flood control portion, were built, would your company change any of its land uses on this land that you described?

    A No, sir, not at all. Not with what I understand is going to be done with

    the project I wouldn't change anything.

    
    

    In response to the Hearing Officer's later inquiry, Mr. Hillard explained that the project would allow pasture land to be used for twelve months per year as opposed to the current nine months per year during a flood season. He does not anticipate grazing any more head per acre after the project.

    
    

13. This evidence contrasted with the assumptions made by the Corps in that part of the General Design Memorandum which discusses the cost-benefit ratio of the project. The Memorandum states at p. 52:

    
    

    As noted previously, the existing activity within the area is predominately agricultural with major emphasis in beef cattle production. Local landowners and managers were asked to indicate the production changes they expected to make with the reduced flood hazards available under with (sic) project condi- tions. These expectations were prepared

    as a land use map with the basic control

    matrix. For the most part, these changes in land use represented more intensive types of agricultural cultivation. In some cases, existing beef pastures were expected to be replaced with sugarcane, truck crops, and citrus production. The majority of

    the changes were an upgrading of existing beef cattle operations. Such upgrading

    was affected (sic) by planting the more pro- ductive types of pasture such as clover and grass combinations, and the application of additional fertilizers and supplemental water. These expectations were assumed to exist under favorable cultivation conditions.

    
    

14. Because of the nature of soil conditions in the project drainage basin, sandy with poor nutrient and water retention ability, it is unlikely that land use in the 261 square mile drainage basin will change significantly. As predicted by Mr. Hillard, it is likely that all the project would do is allow more grazing time on land which is now periodically flooded. Since it is not the function of this proceeding to inquire into whether the purported cost- benefit ratio of the project is accurate, no findings will be made concerning that issue.

    
    

    Project Permitting History

    
    

15. The Hendry County portion of the Central and Southern Florida Flood Control project for flood control west of levees 1, 2 and 3 was authorized by the Congress of the United States in the Flood Control Act of October 27, 1965. The Army Corps of Engineers is the actual builder of the project, but SFWMD is the local sponsor and is the Corps' agent in applying for the necessary permits from DER.

    
    

16. The Department as the permitting agency is in a curious position here. Its Bureau of Water Resources (BWR) was responsible for the State Public Works Program through which Florida requested Congress to fund the Hendry County Project. Mr. Charles Littlejohn who was head of the Bureau in 1976 had the responsibility of lobbying in Washington for funding of the project. The DER through its Bureau of Permitting is now asked to pass on the validity of a project which the BWR has so vigorously promoted. The Department's uncomfortable posture was recognized by its permitting staff. In a memorandum dated March 9, 1979 to Mr. E.D. "Sonny" Vergara, Mr. Forrest Fields at DER wrote: I told Mr. Brown, as I told you yesterday that I felt rather awkward in reviewing for permitting a project which the agency had endorsed for the public works list."

    
    

17. Every year projects being sponsored for federal approval are reviewed by a process In the Division of State Planning called the A-95 Clearinghouse.12/ The Hendry County Project had a checkered history there. Serious objections concerning the environmental impact of the project were raised; nevertheless, DER through the BWR continued to seek and was successful in obtaining federal funding.

    
    

18. On November 15, 1978, SFWMD filed an application with DER for the requisite permits to begin construction. During the course of DER's review of the project several issues arose between the parties. Among them were:

    1. Whether local approval pursuant to Section 253.124, Florida Statutes would be required?

    2. Would an exception from dissolved oxygen (DO) standards be necessary?

    3. Whether local water quality standards would apply if they were stricter than state standards?

       
       

       Local Approval

       
       

19. As early as February 19, 1979, DER noted that plans submitted by the applicant proposed the placement of fill in waters of the state. In a letter to Mr. Lee M. Brown of SFWMD, Mr. Forrest Fields, the DER permit processor, observed:

    
    

    Second, on page 2/11 of your drawings, you indicated that approximately 5,800 cubic yards of fill material will be placed water- ward of ordinary mean high water. I pre- sume that this fill is associated with structures S-243 and S-239. Pursuant to Section 253.124, Florida Statutes, approval of this filling by resolution of the local government is required. To do this I will, upon receipt of the Department of Environ- mental Regulation field report, summarize

    and send this to the Hendry County Commission. The Commission will have to consider this report, and, by vote, adopt a resolution approving the project. I will send you a sample resolution.

    
    

    The requirement of local approval was reiterated numerous times. In March, 1979, Mr. Fields sent a staff report of a biological survey of the project to the Hendry County Commission for consideration in their approval of the project. During a meeting on March 21, 1979 in the DER Secretary's office representatives of SFWMD were told that local approval would be required. On April 10, 1979 the County Commissioners of Hendry County gave their approval to the project. In correspondence to Mr. Charles Lee of the Florida Audubon Society, Secretary Jacob D. Varn noted that the permit applications were still incomplete because local approval for filling associated with the two water control structures had not yet been received by DER. During a public meeting held on May 22, 1979, the County Commissioners of Broward County, after three and one-half hours of testimony, voted 6-0 against approving the project as it related to fill in Broward County.

    
    

20. Subsequent to that vote the Corps and SFWMD asserted that local approval by Broward County was not required. In response to this assertion Mr. Charles Littlejohn, on behalf of the Secretary, requested a legal opinion from DER's General Counsel. On October 30, 1979, General Counsel's Legal Opinion 79-

    72 concluded that the Department could assert Chapter 253 jurisdiction over the project and therefore "local approval" is a statutory requirement for its permitting.

    
    

21. On March 17, 1980 Mrs. Evelyn Jackman of Jackman and Sons, Inc., one of the major ranchers in the project drainage basin, wrote to Governor Graham to

    urge the rapid approval of the project. Her correspondence was forwarded to DER for an appropriate response. Ms. Victoria J. Tschinkel as Assistant Secretary noted in her reply on April 3, 1980 that:

    
    

    Pursuant to Section 253.124(3), Florida Statutes approval must be obtained from the County Commissioners before we can complete the processing of a permitting application for fill in navigable waters. Approval has not been received from Broward County and there Is fill proposed for the Broward County portion of the project.

    
    

    Ms. Tschinkel did, however, assure Mrs. Jackman that:

    
    

    The Department of Environmental Regulation is sympathetic to the problems outlined in your letter, and for that reason the Depart-

    ment has made this project part of its public works package given each year to Congress.

    We still support this as a public works pro- ject and for that reason we are attempting to work out the permitting problems as ex- peditiously as possible.

    
    

    Shortly after Ms. Tschinkel's letter was sent there was another meeting in the Secretary's office to discuss the project. Mr. Lotspeich's interoffice memorandum outlines the Department's new position as it related to local approval.

    
    

    In addition, the issue of what constituted fill pursuant to Chapter 253, Florida Statutes, for local approval purposes was discussed. Helen Setchfield also partici- pated in this discussion. After Helen and I looked more closely at the project, it

    appeared that only a concrete structure (S-239) was to be placed waterward of OHW.13/ We both agreed that in past permitting practices we

    had not required local approval for the construction of structures waterward of OHW, but only when fill to extend existing lands or create new lands was involved. Since the application drawings did not clearly show the relation of the fill and structure relative to OHW and sheet 2 of 11 clearly indicates that fill will be placed "below MHW" Forrest must have assumed that local approval would be required if the canal was determined to be under Chapter 253, Florida Statutes jurisdic- tion. GCO-79-72 from Randie Denker indicated that the Department can assert Chapter 253,

    Florida Statutes jurisdiction in the canals

    and therefore local approval would be required. It would appear that there was really no clear understanding as to what the "fill" consisted of in the case of structure 239. Conversation

    with Mr. Walker [counsel for SFWMD] and Messrs. Parsons [counsel for Alico and other landowners] and Davis [SFWMD] indicated that there was no intention to place fill in the canal waterward of OHW and that the concrete structure would span the entire canal width.

    Since the application drawings did not clearly show the relation of the structure and fill re- lative to existing OHW, Mr. Walker said he would provide new drawings which would show this.

    Helen and I discussed the situation and we scheduled an appointment to talk the problem over the (sic) Terry Cole. It was agreed at the meeting that simultaneous "intent" letters would be sent on May 5, 1980 from permitting and the exception review people.

    
    

22. May 16, 1980 DER entered into a Stipulation with SFWMD which states in its entirety:

    
    

    The SOUTH FLORIDA WATER MANAGEMENT DISTRICT and the DEPARTMENT OF ENVIRONMENTAL REGULA-

    TION for purposes of this proceeding hereby stipulate and agree that:

    
    

    1. The DEPARTMENT OF ENVIRONMENTAL REGULA- TION has jurisdiction under Chapter 253, Florida Statutes, to require permits autho- rizing construction and other activities described in the application which is the subject of this proceeding.

       
       

    2. None of the activities or construction, including the construction of the proposed Spillway S-239, as described in the appli- cation which is the subject of this pro- ceeding, constitute construction of islands or an addition to or extension of existing lands and islands so that approval of local governments as described in Section 253.124, Florida Statutes, is not required.

       
       

       This Stipulation is executed by counsel for each party on the date shown.

       
       

       On May 20, 1980 coordinated letters of intent to grant permits for the construction of the project were issued. Pursuant to the Stipulation local approval was no longer being required by DER.

       
       

       Alternative Site Specific Criteria

       
       

23. After receipt of SFWMD's permit application for the construction of C-

    139 and associated structures, DIR noted that it did not have adequate data on dissolved oxygen. In correspondence dated March 9, 1979, Mr. Forrest Fields said:

    Fourth, the dissolved oxygen data are not adequate. The available data were col- lected during daylight, only, and these data include occasional concentrations of less than 4.0 mg/l. In an effort to re- solve these deficiencies so that reasonable

    assurances may be provided, you, Walt Dineen, and I will discuss the South Florida Water Management District data on Thursday, March 15.

    
    

    The results of the March 15, 1979 meeting were memorialized by Mr. Fields in a file memorandum dated March 19, 1979. The memorandum stated in pertinent part that:

    
    

    On March 15, 1979, Mr. Lee Brown, Mr. Walt Dineen, and Mr. Fred Davis, from SFWMD, called to discuss the staff's request for "reasonable assurance" re. the Department's water quality standards. Mr. Davis, the applicant's chief chemist, said that, throughout the Everglades, in both canals and conservation areas, the water quality standards for both conductivity and dis- solved oxygen are frequently violated. He asserted that this is typical of the area. He believes that these data represent natural background.

    
    

    The situation regarding affirmative, reasonable assurance appears to be this:

    widespread and frequent observations of DO data which are less than the minimum

    for Class III waters commonly occur within the existing L-1, L-2, L-3 canals. The increase in depth associated with C-139

    is predicted to exacerbate existing stress- es on the DO regime....

    
    

    However, the SFWMD's response does not constitute reasonable assurance re. other Class III standards. The District's DO and conductivity data may conceivably

    supply assurances that these standards will be violated in C-139. (Whether background DO and conductivity violate the standards may become important.) The District appears to have two alternatives: 1) attack the Class III standard; 2) apply for variances for, at least, DO and conductivity.

    
    

    A follow-up meeting was held on March 21, 1979. Again, in a file memorandum dated March 28, 1979 Mr. Fields wrote:

    
    

    Consideration of reasonable assurance began at the March 15, 1979, conversation among Messrs. Brown, Davis and Fields.

    According to the SFWMD, widespread and frequent violations of the Class III water quality standard for dissolved oxygen, as contained in Chapter 17-3, F.A.C., occur throughout the Everglades, in the canals, agriculture areas, Lake Okeechobee, and the conservation areas. The existing borrow canals follow this pattern. The SFWMD alleges that this condition is natural back- ground. They agree that it is probable that any existing DO stresses exist in the

    borrow canal will be exacerbated in the proposed C-139.

    
    

    However, both the former and present editions of Chapter 17-3 F.A.C. allow for exceptions for natural background. The SFWMD will review these rules to determine which regulatory approach will be taken. In addition, the SFWMD will supply to DER data for the "benchmark"

    station in the L-28 canal and at Everglades National Park to demonstrate lower back- ground concentrations of DO. Furthermore, the SFWMD will apply, per Ch. 403.087, F.S., for a temporary operating permit for the completed structure. Conditions governing private connections and incor- porating BMPs may be included in the TOP.

    
    

24. On April 5, 1979, SFWMD submitted in support of its original permit application a document called Evaluation of Natural Background Dissolved Oxygen in Conservation Area 3-A, South Florida. This evaluation received unfavorable reviews at. DER. Landon P. Ross, chief biologist, wrote in an April 9, 1979 memo that:

    
    

    I have reviewed the data provided by SFWMD regarding background DOs in the Everglades area and have the following comments:

    
    

    1. Indication that DOs are not harmful to local organisms are, in a

       legal sense, irrelevant to the question.

       
       

    2. The data provided give evidence

       of the occurrence of low DOs in the area.

       
       

    3. Since the measured low DOs seem

       to be from artificial drainage channels, they can hardly be supposed to be "natural". The measures that SFWMD provided, however, do not seem too different from the values that I would expect to find in a natural swamp habitat.

    4. The proposed "standard" cannot be logically derived from the DO measurements provided.

    
    

25. This Evaluation was later submitted in support of first Petition for Exception noted infra. In his review of the data Mr. Fred Bartleson at DER wrote:14/

    
    

    The data submitted by the South Florida Water Management District does not justify the requested exception for dissolved oxy- gen criteria for the Hendry County Project. The petition alleges that D.O. concentra- tions lower than 1.0 mg/l occur in the re- ceiving waters of Conservation Area 3A. However, the data submitted from that area indicate a minimum value of 2.3 mg/l. The value cited in the petition of less than

    1.0 mg/l was recorded in the L-3 borrow canal adjacent to the conservation area. This canal drains an agricultural area.

    Similar data from the L-28 east canal which is less affected by cultural activity depicts minimum D.O. values between 3 - 2 mg/l.

    
    

    The low D.O. values found naturally in fresh- water wetlands during the warmer months ob- viously result in stress to the biota. The introduction of larger quantities of water from the proposed Hendry County Project,

    which is anticipated to have lower D.O. values as well as nutrients and pesticides from agricultural runoff, could adversely affect the ecosystem.

    
    

    The proposed exception allowing discharge of water with not less than 1.0 mg/l for more than two consecutive hours in any 24-hour period is arbitrary and not supported by data. It may well be that an exception could be granted for some lowering of the D.O. criteria with time constraints. However, more defini- tive and conclusive data are required to in- sure that this action would not cause adverse effects. The burden of supplying this infor- mation should rest with the petitioner.

    
    

    His views were supported by Messrs. Kevin Edwards, Vernon Myers, and G. J. Thabaraj. Mr. Edwards also noted the difference in DO readings between the WCA- 3A and the borrow canals.

    
    

26. SFWMD filed a Petition for an Exception on July 23, 1979. The Petition alleged that the receiving waters of the proposed discharge are located in WCA-3A and that due to natural causes that portion of WCA-3A which will receive the discharge does not meet the state standards for DO as set out in Section 17-3.121, Florida Administrative Code. The DO levels of the proposed discharge are alleged to be similar to those levels already present in the water

    conservation area. In response to the Petition DER requested more information by a letter from Stephen Fox dated August 29, 1979. The letter requested:

    
    

    1. Data which supports the contention that the condition of the waters is the re-

       sult of natural causes, that is, there

       is an absence of man-induced alteration; or

       
       

    2. Data which supports the contention that the condition of the waters is the re-

       sult of man-induced causes which cannot be controlled or abated with technology or management practices.

       
       

    3. Data which supports the contention that the biota have not been adversely af- fected or will not be affected adversely.

       
       

       The data submitted with the application did not address the possibility that the low dis- solved oxygen levels may be caused by the practice of pumping water off the agriculture areas during the summer wet season. Compari- son with similar subtropical, undisturbed aquatic environment should be made. The dis- solved oxygen data should be compared with pumping schedules and with dissolved oxygen values of water pumped. Comprehensive water- shed and land use data is needed for a thorough review.

       
       

       Further, the data submitted did not support the contention in the petition of a corre-

       lation between C.A. 3A and canals L-3 and L-28. Also, the contention that in C.A. 3A dis- solved oxygen concentrations were below 1.0 mg/l were recorded was unsupported. The data array was not adequate in terms of distri- bution and frequency of sampling, to demon- strate that the dissolved oxygen regime ap- proaches the proposed alternative criteria.

       
       

27. On October 2, 1979, E. D. Vergara summarized the status of the SFWMD application for the DER Secretary, Jacob D. Varn. His memorandum with respect to dissolved oxygen states:

    
    

    ... (permits) originally requested under old 17-3 rules, it was found quality assurances could not be made due to a naturally occurring condition of low DO. The Department requested information sup- portive of the low DO background, but

    due to differences in opinions among the biologists, the district elected to re- quest an exception under the provisions of the new 17-3 rule instead. Additional information has now been requested by

    the Department to support the request

    for an exception, and the District is cur- rently putting this together. It is

    the general feeling that with this additional data, granting the exception should be possible.

    
    

28. SFWMD responded to Mr. Fox's letter above by submitting in the Spring of 1980, an Amended Petition for Exception from Criteria. In its Amended Petition the District abandoned the comparison, found in the original petition, of the proposed discharged waters' dissolved oxygen levels to the levels found in the water conservation district. Instead the District concentrated on a comparison of the dissolved oxygen levels in the proposed discharge waters to the levels in the relatively clean canals in the South Florida area, specifically the L-28 canal system. The District proposed that as an alternative to Class III standards the following criterion be established:

    
    

    During any 24-hour cycle the dissolved oxygen concentration within the photic zone shall exceed 1.0 mg/l, except during the extreme low point when values shall not be less than 1.0 mg/l for more than two consecutive hours. (Emphasis added)

    
    

    Accompanying SFWMD's Amended Petition was a report (Supporting Report) dated February, 1980, which provided a voluminous compilation of data to justify the alternative standard proposed.15/

    
    

29. On April 8, 1980, Ms. Helen Setchfield sent a memorandum to DER staff requesting that they review the Amended Petition and report back to her within five days. Also on April 8, 1980, after a meeting attended by both SFWMD representatives and DER representatives, it was decided that DER would issue coordinated letters of intent on May 5, 1980 for both the exception and the dredge and fill applications.

    
    

30. In spite of the decision to issue letters of intent, DER permitting staff were not satisfied with the concept that ban-made canals were "natural" background or that the proposed DO standard was reasonable. On April 16, 1980, Rick Lotspeich wrote to Suzanne Walker, Chief of the Bureau of Permitting, that:

    
    

    I have reviewed the referenced "request for exception" and it appears that the petition and supporting report are suf- ficiently complete to allow evaluation of the merits of the request.

    
    

    It would appear that the proposed dis- solved oxygen standard of 2.0 mg/l over

    24 hours and 1.0 mg/l "during the extreme low point" for not more than two hours, is excessively low and not warranted by the data presented. A review of the data from figures 4 and 5 generally indicate that the following standard would be appropriate:

    Dissolved Oxygen: The concentration should not average less than 4.0 mg/l in a 24-hour period and not less than

    3.0 mg/l except during the months of June--September, when the concentra- tion shall not average less than 3.0 mg/l in a 24-hour period and never less than 1.0 mg/l.

    
    

31. Later, after having received comments from Rick Cantrell and Bob Siciler, Mr. Lotspeich wrote to Ms. Walker the following:

    
    

    My recollection from reading the request for exception was that SFWMD had indeed recognized the fact that the canals and their design had contributed to the de- pressed DO values of the water in them. Pursuant to Subsection 17-3.031(1),

    Florida Administrative Code, there may

    be a consideration for "man-induced causes which cannot be controlled or abated

    I am in full agreement with Cantrell and Siciler's discussion of the adverse impacts that canals in general, and the specific canal involved in this project, have on water quality and biological resources.

    However, I disagree with the conclusions that they reached. Clearly, there are extenuating circumstances involved in this case which set it apart from other dredge and fill cases. In light of these circum- stances, the fact that the depressed DO levels have resulted from man-induced causes which cannot be controlled, and Cantrell

    and Siciler's own statement that approval of this project has little probability of worsening the existing water quality of

    L-2, L-3 and WCA-3, I would recommend that the exception be granted. However, the alternate DO standard which I recommended in my previous memo is still applicable. (Emphases added. The "extenuating circum- stances" were never explained.)

    
    

32. Subsequently, on May 20, 1980, the Department issued a coordinated letter of intent to grant an exception but for the standard proposed by Mr. Lotspeich, not that requested by the Water Management District.

    
    

    Dissolved Oxygen and Exception

    
    

33. Section 17-3.121(14), Florida Administrative Code requires that discharges into fresh waters of the state must exhibit dissolved oxygen concentrations of 5.04 mg/l or more. Normal daily and seasonal fluctuations above that level must be maintained. Dissolved oxygen in certain concentrations is required for aquatic life. The amount of oxygen contained in water is subject to numerous variables, many of which are interrelated. They include: amount of sunlight entering the water, ability of the water to transmit light,

    photosynthetic activity of aquatic plants, water temperature, mechanical oxygenation, mixing with other water which may have either a higher or lower dissolved oxygen content, depth of water, rate of oxygen consumption by resident biota, and time of day.

    
    

34. It is undisputed that during certain seasons and times of day the water in the existing borrow canal does not meet the state dissolved oxygen standard. Readings as low as 0.9 mg/l have been obtained there. These low readings usually occur in the months of heavy rainfall, primarily July through September. See the data on Figure 4 of SFWMD's Supporting Report. Similar, though not so low measurements have been obtained in neighboring man-made canals such as L-28. L-28 has been used by water quality experts as a "benchmark" for canal water quality since it does not receive large amounts of runoff from agricultural areas where pollutants such as fertilizers are used. There are numerous times during a given year that the dissolved oxygen levels in L-28 are below the 5.0 mg/l state standard.

    
    

35. It is also possible to find at least two locations in WCA-3A wetlands where dissolved oxygen readings are below Class III standards. At Gauge 3-2 in the northwest corner of WCA-3A near where the project would discharge, dissolved oxygen levels have varied from 2.3 mg/l to 10.8 mg/l; however, the mean value for the measured levels has been 5.5 mg/l as reported on Table 2 of the Supporting Report.16/ Unfortunately, the data regarding dissolved oxygen concentrations in the proposed discharge area are scant. This paucity was recognized by the Supporting Report which states at page 6: "No systematic study of the dissolved oxygen conditions or requirements for fresh water wetlands in general, or WCA-3A in particular, have yet been conducted."

    
    

36. Despite the limited data on WCA-3A, certain comparisons between DO readings in it and in the borrow canal which would discharge into the area can be made. Readings taken at Gauge 3-2 do not sink to levels as low as those found in L-3. Compare Figure 4 of the Report to Table 2. The minimum readings taken in L-3 were during those periods of greatest discharge. If the discharge from the existing borrow canal were presently sent into the area of Gauge 3-2 during months of peak discharge, the waters entering WCA-3A would have a lower dissolved oxygen concentration than would exist naturally in the area.

    
    

37. It is not surprising that water in the borrow canal exhibits unusually low dissolved oxygen levels. The levee sides limit reaeration which could occur due to wind movement. The surface-to-volume ratio is also unfavorable. Much oxygenation occurs at the interface between the water and surrounding air, but because the canal is relatively deep compared to its surface area, the proportion of water coming into direct contact with the air is low.17/ The depth of the photic zone, i.e., the section of water penetrated by light, is limited due to the naturally high color of canal water. Construction of C-139 will add somewhat to a lowering of dissolved oxygen levels in the entire canal water column. To increase its conveyance capacity, the existing borrow canal will be deepened significantly, particularly in its southern reaches. This deepening will result in a lowering of the ratio between the area of water surface to the depth of the canal. No mathematical data were presented by which the lowered ratio can be computed; however, an examination of Plates A-24 and A-

    25 of the General Design Memorandum indicates that completed C-139 will contain a higher ratio of water below the photic zone than is presently contained in the borrow canal.18/ This is true only during those times when the canal is relatively full of water. As the canal level drops during a drought the photic zone will approach the canal bottom in the shallower sections.

38. Both SFWMD and DER have proposed site specific DO alternative standards. These have been set out in the foregoing discussion of the permitting history. There is a significant difference between the proposals. SFWMD's proposal includes only the waters contained in the photic zone. It fails to recognize that during times of discharge, the waters of C-139 which are deposited in WCA-3A will not be only those of the photic zone, but will come from the entire water column of the canal. While SFWMD's standard might be acceptable for C-139 when it is in a no discharge state, the standard is completely unacceptable when the canal is discharging. Neither the standard proposed by DER nor SFWMD recognizes the difference between the dissolved oxygen regime which can be predicted for C-139 and that presently existing in WCA-3A.

    
    

39. The data submitted would justify an exception from the present 5.0 mg/l Class III standard. There are certainly times when both the water existing in relatively unpolluted canals and in the water conservation area contain less than the present minimal content of dissolved oxygen. When C-139 is not discharging an exception, which would have a range now exhibited by the existing borrow canal, would be justified for the new canal.

    
    

40. Sufficient data was not presented here to suggest the precise figures for such an exception. The information given for L-3 for instance, is compiled from samples taken only once during a given day. The water depth of the sample is not given. Accurate data would account for the diel variation and the effect of water depth on each sample. Without data which gives a daily average, it is impossible to determine if the water either standing in, or discharging from C-

    139 will meet any proposed alternative criterion. For the same reason the data obtained for the present DO concentrations in WCA-3A is incomplete for establishing appropriate levels for discharge waters entering that area. The establishment of site specific alternative criteria must await the submission of more complete dissolved oxygen readings from the applicant.

    
    

41. One of the elements in considering whether to grant an exception to established standards is whether the existing biota have adapted to the background DO levels. The proof here shows that the fish and other biota now living in the borrow canal either tolerate or have adapted to the present low DO regime there. It has also been proven that the biota in WCA-3A are tolerant of the naturally occurring low DO levels in that area. It was not shown how they would respond to a massive influx of low DO water when C-139 would be discharging.

    
    

    Hydroperiod in WCA-3A

    
    

42. The northwest corner of WCA-3A, where C-139 and C-139(S) will discharge, has a higher ground elevation than that of the southern portion of the water conservation area. The highest elevation in the extreme northwest corner is approximately 17 feet above mean sea level (MSL). It tapers down to approximately ten feet MSL at the southern boundary of WCA-3A. The project is designed to facilitate the sheet flow of discharge water from the northwest area towards the southeast with an ultimate destination being flow into the Miami canal. The construction of the Miami canal, C-123, which runs on a northwest- southeast diagonal across the area, causes overdrainage of the northwest section. The borrow canal along Alligator Alley also contributes to excess runoff. This overdrainage has shortened the hydroperiod in the northwest corner from approximately 9 to 10 months to approximately 5 to 7 months. "Hydroperiod" is the span of time during which land is inundated by ponded water. The shorten hydroperiod has a profoundly destructive impact on the natural environment. The muck soil when not submerged oxidizes at an accelerated rate. At the present

    time the rate of oxidation in the northwest corner is more rapid than the replacement rate. Since the natural hydroperiod has been altered muck fires have been more severe and frequent. These fires destroy existing tree islands which dot the

    
    

43. Prior to 1974 WCA-3A received discharges from the waters of the L-1, 2 and 3 borrow canal. The outlet of the canal at L-4 was determined to be inadequate for flood control purposes in the L-1 angle. To increase the discharge rate of the borrow canal culverts G-88 and G-89 were installed at the L-3/L-4 intersection in October of 1974. G-89 directs part of the flow from the L-3 canal into canal L-28 west, and then into pumping station 5-140 and into C-

    60 (parallel to Alligator Alley). G-88 directs another part of the flow from the L-3 canal into the L-4 borrow canal and then into S-8 where it is pumped into the Miami canal. Rather than being allowed to flow in a shallow sheet across the water conservation area, the direct water flow is now sent southeast in canals for ultimate discharge outside the area.

    
    

44. This waste would be eliminated by the proposal to have C-139 discharge into WCA-3A via C-139(S). There is no dispute that more water is needed annually in the northwest corner of the water conservation area. What is at issue here is the timing of placing additional water there. Generally when there is flooding in the L-1 angle and C-139 would be discharging at its maximum rate there is already flooding in WCA-3A. Rainstorm events are somewhat regional and cover both areas. The applicant estimates that if the volume of water discharged by C-139 in a two-week period were to be instantaneously spread over the northwest corner of WCA-3A 20/ it would raise the water stage by 0.4 feet. This would occur during a one in ten year storm. At that time the wildlife in the water conservation area would already be stressed by high water levels.

    
    

45. A 0.4 foot increase in stage could kill deer and other terrestrial animals and destroy alligator nests, but it also could benefit the more aquatic animals. The result of this increase cannot be accurately predicted on the data supplied by the applicant.21/ While expert witnesses on behalf of the applicant were willing to express an opinion that the influx of drainage water from C-139 would be beneficial, the opinions were simplistically based on the unsupported assumption that because WCA-3A currently suffers from overdrainage, any additional water at any time would be beneficial. It is possible that those opinions were based on studies conducted which prove that a discharge of water such as will come from C-139 may create a beneficial increase in the marsh hydroperiod. Unfortunately, no evidence of the existence of such studies is in this record. The applicant's expert witnesses' opinions are therefore given little weight.

    
    

46. In the present situation WCA-3A receives some water from the borrow canal during the dry season when additional water is most beneficial. At the expense of overdraining the land west of the borrow canal, ground water seepage now enters the canal and travels south through L-1, 2 and 3. After the construction of S-239, designed to prevent overdrainage, any possible flow into WCA-3A during dry periods will be cut off. No evidence was presented on what quantity of water WCA-3A will lose during a dry season due to S-239. Also the record does not reflect what effect that reduction will have on biota in the water conservation area.

    
    

    S-239 and Fill

47. When the level of water in the borrow canal drops below the nearby water table, there is groundwater seepage laterally into the canal. If C-139 were to be constructed without any water control devices, it would exacerbate the overdrainage because it will be a far more efficient conveyance than is the borrow canal. S-239 has been designed to prevent this overdrainage. The structure will be located in Broward County. On May 22, 1979 the County declined to give its approval of the use of any fill, as the term is used in Section 253.124, Florida Statutes, for the construction of this project in Broward County.

    
    

48. The Department of Environmental Regulation has not maintained a consistent unwritten policy on what is "fill" in navigable waters of the state.22/ Testimony from past and present Department employees indicated that at times a "use" concept was employed to determine what was fill. If additional dry land were created which would be used for commercial purposes, then the newly created land was called fill which required local approval. At other times use was unimportant. The test was whether or not the result of the additional material would be moving the point, at which the high water mark intersected the land, in a waterward direction. It is found that what constituted fill in past permit cases depended upon the personal interpretation of each Department employee.

    
    

49. S-239 as proposed is a massive structure which will cost 1.32 million dollars 23/ to build. It will contain 11,000 cubic yards of fill and backfill;

    530 cubic yards of 1' by 1' pieces of stone rip-rap; 1,230 cubic yards of concrete and 647,000 pounds of cement. 153,800 pounds of reinforcing steel will be required. The structure will be over 50 feet high and will span C-139 where it is 60 feet wide. Each of the two vertical lift gates which control the water flow will be 27 feet wide. See Illustration II.* In between them will be a concrete pier three feet wide and approximately 38 feet long. The cement bottom of the structure will rise from an elevation of 8.0 feet MSL to a crest of 3.3 feet MSL for a total height of 11.3 feet.

    
    

50. In order to allow service vehicles to pass across the canal a bridge

    13 feet wide will span from one bank to the other. This bridge will support large trucks. The stone protection provided for in the plans consists of 1 foot square pieces of rip-rap to be placed 40 feet immediately upstream from the control gates and 30 feet immediately downstream of the gates. The purpose of this protection is to prevent erosion of the canal bottom and sides where the water flows by at a relatively high velocity. The majority of rip-rap will be placed below the ordinary high water mark.

    
    

    Local Water Quality Standards

    
    

51. The issue of local water quality standards arose late in the permitting process. DER had already issued two letters of intent to SFWMD before the Department gave consideration to standards promulgated by Broward County. It appears from the record that the Broward County standards were formally brought to DER's attention through the County's Petition for Formal Hearing filed on June 3, 1980.

    
    

52. On June 26, 1980, DER issued an amended letter of intent which said:

    
    

    This letter is an amendment of the letter of intent to issue signed by the Department

    on May 20, 1980. In that letter, the Depart- ment stated:

    "This intent to issue is contin-

    gent upon the applicant being granted an exception from the criteria for dis- solved oxygen, for Class III waters, pursuant to Section 17-3.031, Florida Administrative Code."

    
    

    The preceding paragraph is hereby amended

    to include a provision that the applicant must obtain relief from the dissolved oxygen stan- dards that appear in Section 27-5.072(19), Broward County Code, through a variance or other legal mechanism, in addition to the exception from state standards for dissolved oxygen. Section 27-5.072(19), Broward County Code, states that DO is to have a "daily average not less than 5 mg/l; single reading never less than 4 mg/l.

    
    

    The May 20, 1980, letter also contained a paragraph that read:

    
    

    "However, should the Department grant an exception from the dissolved oxygen criteria pursuant to Section 17-3.031,

    Florida Administrative Code, the Division intends to issue the permit."

    
    

    This paragraph is hereby stricken and the following paragraph substituted:

    
    

    "If the Department grants an exception from the State dissolved oxygen criteria pursuant to Section 17-3.031, Florida Administrative Code, the Division intends to issue a conditional permit which will only become valid upon the granting of relief by Broward County from its existing local standards for dissolved oxygen."

    
    

    The Department is taking this position upon consideration of Section 403.182(6), Florida Statutes, which requires the Department to en- force all stricter or more stringent rules, regulations or orders in the jurisdiction where they apply. It is the Department's position that it is without discretion to grant relief from Broward County's local standard for dis- solved oxygen.

    
    

53. By its Petition the County alleged that it has an approved local pollution control program and that the proposed project will violate its local standards for dissolved oxygen and nutrients found in Sections 27-117(b)(9) and 27-117(11) of the Broward County Code.24/ Neither SFWMD nor the Corps has applied to the Broward County Environmental Quality Control Board for either a

    license under Chapter 27 of the County Code or for a variance from the standards established therein.

    
    

54. On April 20, 1972, the Florida Department of Pollution Control (the predecessor of the Department of Environmental Regulation) gave temporary and conditional approval for six months to the Broward County Pollution Control Program. This approval provided that the County has full authority to enforce its own laws, rules and regulations, provided that they must be as strict or stricter than those of the State. The County was also required to modify its rules if the State subsequently adopted the regulations in conflict with those of the County. On November 7, 1972, the Department of Pollution Control gave Broward County full and final approval pursuant to Section 403.182, Florida Statutes. Subsequently, in 1974 and 1976 the State and Broward County entered into new agreements. These agreements were the result of DER's desire to make uniform all its agreements with all qualified local programs. The Broward County pollution control program including the portion administered by the Environmental Quality Control Board, continues to be an approved local program as defined at Section 403.182, Florida Statutes.

    
    

    CONCLUSIONS OF LAW

    
    

55. The Division of Administrative Hearings has jurisdiction over the parties and subject matter of this case. Sections 120.57(1) and 120.60, Florida Statutes.

    
    

56. The following legal issues have been presented here:

    
    

    1. Has the applicant given reasonable assurances that the project will not violate the standards for water quality promulgated pursuant to Chapter 403, Florida Statutes?

    2. Whether the project will result in a placement of "fill" in navigable waters of the state and therefore require approval of the County Commission of Broward County?

    3. Whether the local standards of Broward County which may apply to the project must be enforced by the Department of Environmental Regulation before the applied for permits may be granted?

    
    

    Chapter 403 Water Quality Assurances

    
    

57. Section 403.087(1), Florida Statutes (1981) provides that any stationary installation which will reasonably be expected to be a source of water pollution must have a valid permit from DER before it is constructed or operated. The standards for such permits have been promulgated in Chapters 17-3 and 17-4, Florida Administrative Code. Both the waters of Water Conservation Area 3A and the present borrow canal are Class III fresh waters of the state.

    
    

58. Section 17-3.121 requires that Class III waters meet certain chemical standards. Among them is the following:

    
    

    Dissolved Oxygen - in predominantly fresh waters, the concentration shall not be less than 5 milligrams per liter. In predomi- nantly marine waters, the concentration shall

    not average less than 5 milligrams per liter in a 24-hour period and shall never be less than 4 milligrams per liter. Normal daily and seasonal fluctuations above these levels shall be maintained in both predominantly fresh waters and predominantly marine waters.

    
    

59. In the event that a water quality permit applicant cannot demonstrate that the proposed project will meet the foregoing standards, a petition for site specific alternative criteria may be made. Section 17-3.031, Florida Administrative Code provides:

    
    

    1. Upon petition of an affected person, permit or upon the initiation of the Depart- ment, applicant, after public notice and opportunity for public hearing, and upon affirmative demonstration that, due to man- induced causes which cannot be controlled

       or abated with technology or management practices including zero discharge, or due to natural causes, certain delineated portions of waters of the State do not meet particular water quality criteria contained in this chapter, the Secretary may issue an order specifying an alternative ambient water quality criterion for each parameter and the portion of the waters for which such demon- stration has been made.

       
       

    2. The petitioner or the Department shall affirmatively demonstrate those criteria

    which the petitioner or the Department believes more appropriately apply to the waters for which the alternative criteria are sought, based upon relevant factors which include, but are not limited to, the designated use of the waters, the extent to which biota have adapted to the background, evidence regarding ecologi- cal stress, and adverse impacts on adjoining waters. (Emphasis added)

    
    

60. Since the beginning of these permit proceedings it has been obvious that the proposed project will not meet the dissolved oxygen standard for Class III waters. SFWMD has applied for the alternative criteria as set out above in the Findings of Fact. The District has not met its burden of affirmatively establishing that either its proposed standard or the standard proposed by DER is justified by the record here. While there is more than adequate proof that there are times when the waters of both WCA-3A and the present borrow canal violate Class III standards, the proof offered in support of the alternative standards is deficient in several respects. The dissolved oxygen readings submitted by SFWMD do not adequately account for the variations caused by water depth and time of day. Both proposed standards for dissolved oxygen fail to acknowledge that DO levels in WCA-3A are not as low as those found in the present borrow canal, whose low level will be exacerbated by the construction of C-139. This difference was however, recognized by the Water Management District's water quality expert, Mr. Fred Davis. He testified:

    Q Okay. Were you able to determine the ranges of dissolved oxygen you could find in the canal system?

    A Yes.

    Q What is the range, approximately?

    A In the carnal systems the higher values we found were twelves, thirteens, four- teen milligrams per liter. The lowest value, I believe, was point nine milli- grams per liter.

    Q How about in Water Conservation Area 3A?

    A Essentially the same. Of course, you're talking about different data sets, and they are possibly not comparable in time or place, but essentially the same. It would be considered variable. Dissolved oxygen measured in the conservation area would vary from lows of -- as low as 2 to as high as 10, 15. (Emphasis added)

    
    

    Because both the existing and proposed canals exhibit concentrations lower than those naturally found in WCA-3A, a zero discharge state could protect the natural condition in the water conservation area and avoid a man-induced influx of relatively oxygen deficient water.

    
    

61. If zero discharge from proposed C-139 can protect the natural condition of WCA-3A, the request for a site specific criterion must be denied as to WCA-3A. Section 17-3.031(1), Florida Administrative Code.

    
    

    Chapter 253 Jurisdiction

    
    

62. A hotly contested Issue here is whether Section 253.124, Florida Statutes (1981) applies to the Hendry County Project as it relates to construction in Broward County. Whether or not the project involves the navigable waters of the state has never been an issue between the main parties, and that fact is subsumed by the May 16, 1980 Stipulation entered into by SFWMD and DER.25/ The Alico Intervenors attempted to raise the issue in pleadings, but because of their status as intervenors without the ability to raise new issues, their pleadings on the question was stricken.26/

    
    

    Section 253.124, provides:

    
    

    (1) Any private person, firm or corpora- tion desiring to construct islands or add to or extend existing lands or islands lo- cated in the unincorporated area of any county bordering on or in the navigable

    waters of the state, as defined in s.253.12, by pumping sand, rock or earth from such waters or by any other means shall make appli- cation in writing to the board of county commissioners of the county wherein such con- struction is desired for a period.... In the event the board of county commissioners or other authorized body shall find that such proposed extension or filling of land or such proposed dredging is not violative of any

    statute, zoning law, ordinance, or other restrictions which may be applicable thereto, that no harmful obstruction to or alteration of the natural flow of the navigable water,

    as defined in s. 253.12, within such area will arise from the proposed construction, that

    no harmful or increased erosion, shoaling of channels or stagnant areas of water will be created thereby, and that no material injury or monetary damage to adjoining land will accrue therefrom, the same shall be granted to the applicant, subject to the approval of the Board of Trustees of the Internal Improvement Trust Fund, who shall have the power to ap- prove, reject or issue; provided, however, that prior to the issuance of such permit, the board of county commissioners or other author- ized body shall determine whether the granting of such permit and the construction to be done pursuant thereto would interfere with the con-

    servation of fish, marine and wildlife or other natural resources to such an extent as to be contrary to the public interest, ...

    
    

    Acting pursuant to this section, the Broward County Commission voted not to approve the proposed project insofar as it is located in Broward County.

    Subsequently DER and SFWMD entered into their Stipulation that the construction of S-239 in Broward County does not involve "fill".

    
    

63. To the knowledge of the undersigned, there are no court decisions on what constitutes "fill" as the term is used in the foregoing statute. Pursuant to its rule-making authority DER has defined fill as "the deposition, by any means, of materials In waters of the state." Section 17-4.02(15), Florida Administrative Code. Further definition of what constitutes fill or filling is found in DER's rule, Section 17-4.29, Florida Administrative Code entitled, "Construction, Dredging or Filling Activities in, or over Navigable Waters; Permits Required Pursuant to Chapter 253, F.S." In its pertinent part the rule requires:

    
    

    1. ....the following activities at or

       below the line of mean high water or ordinary high water in, on, or over the navigable waters of the State require a department permit:

       1. Filling by the construction of islands, extensions of existing lands or islands bordering on or in the navigable waters including filling to create arti- ficial reefs, groins, jetties, breakwaters, rip-rap or other type sea walling, revet- ments and any similar type structures and filling associated with construction and/or installation of activities described in this rule.

    * * *

    (e) Miscellaneous activities including navigational aides, commercial signs, fences

    or similar obstructions, canal locks, marine railroads; bridges, walkways or similar structural crossings. (Emphasis added)

    
    

    The construction of S-239 is certainly within the foregoing definition of filling. In order to protect the structure from erosion, 530 cubic yards of rip-rap will be used, most of it below the ordinary high water line. The pier which is located between the two lift gates will be a concrete island 3 feet, 3 inches wide and approximately 38 feet long. When S-239 is completed the bottom of C-139 will be filled with concrete to a height of 11.5 feet in order to make the crest immediately upstream of the lift gates. There is no practical distinction between the filling required to create an artificial reef as mentioned in paragraph (1)(a) of the rule and the filling necessary to create this crest. In documents supporting its permit application SFWMD stated that 4,400 cubic yards of fill will be placed below the mean high water mark as part of the construction of S-239. See also the District's Proposed Finding of Fact No. 29.

    
    

64. SFWMD and DER have argued that the construction of S-239 will not involve filling because it is a water control structure.27/ In addition to its other infirmities this argument overlooks the provisions of Section 17-4.29, which encompass filling associated with the construction of canal locks. They too are water control structures. In addition Section 17-4.29 requires that filling associated with the construction of bridges and walkways be regulated by Section 253.124. S-239 will incidentally be a bridge capable of supporting large trucks.

    
    

65. The interpretation made by DER in its Rule 17-4.29 of what constitutes filling under Section 253.124, Florida Statutes, is well within the intent of the statute. One of the factors explicitly enumerated in the statute to be reviewed before a permit is issued is whether or not the project will result in a "harmful obstruction to or alteration of the natural flow of the navigable waters." Certainly the construction of S-239 will result in altering the natural water flow as would the other types of structures mentioned in the rule.

    
    

66. SFWMD has argued that DER has the authority to issue a dredge and fill permit in spite of Broward County's disapproval. Its argument relies on a misinterpretation of the decision in Albrecht v. Department of Environmental Regulation, 353 So.2d 883 (Fla. 1st DCA 1978). The court there held that even though a county commission approves a project, DER, acting on behalf of the Trustees of the Internal Improvement Fund, may deny a permit. The applicable portion of Section 253.124, Florida Statutes provides, ".... the same [permit] shall be granted to the applicant, subject to the approval of the Board of Trustees of the Internal Improvement Fund...." (Emphasis added) The converse does not appear in the statute. No provision is made for the issuance of a permit upon the denial of an application by the appropriate Board of County Commissioners. Broward County's disapproval of the project may not be overridden by DER here.

    
    

67. In its post-hearing memorandum DER asserted that filling is not within Section 253.124 jurisdiction unless it creates new "land" that is dry land.

    This extremely constricted interpretation is contrary to the explicit language of section 17-4.29, Florida Administrative Code. Constructing an artificial reef does not create new dry land, yet such constriction is filling under the rule. Section 17-4.29(1)(a), Florida Administrative Code DER's interpretation, if accepted, would mean that a person could deposit as much fill material as he wanted into navigable waters as long as the material did not break the water

    surface. Artificial sand bars could be created across harbor channels with no regulation. Such a myopic interpretation ignores the intent of Section 253.124 to regulate obstructions to navigation and natural water flows. The statute regulates additions to existing lands which are either above water or below water.

    
    

68. The Florida Legislature enacted Chapter 82-27, Laws of Florida (1982), effective July 1, 1982. It made substantial modifications to the procedural provisions of Section 253.124 in order to make the statutory terms congruent with what is now current agency practice. The changes recognize DER as the primary permitting agency and allow the various counties to veto a project only upon an affirmative action within a certain time period. Section 4, Chapter 82- 27, Laws of Florida (1982). Exempt from a county veto are multicounty water management district projects "designed to protect and conserve water resources, improve water quality, or restore the hydroperiod of rivers, lakes, and streams, and associated wetlands." That exemption does not apply here. This project is designed for flood control in order to provide relief in the L-1 angle.

    
    

69. This case was tried under the provisions of Section 253.124 as it existed at the time of the final hearing. The substance of the old law as it relates to this project has not been changed by the amendments. The procedural amendments, had they been followed here, would not have changed the end result. Under either the old terms or the new terms, once it has been determined that the project involves filling in navigable waters of the state, Broward County has an absolute veto over the dredge and fill permit.

    
    

    Local Standards Enforcement

    
    

70. The same spirit of state-local cooperation which appears in Chapter

    253 is embodied in Chapter 403, Florida Statutes. Section 403.182 provides in part:

    
    

    1. Each county and municipality or

    any combination thereof may establish and administer a local pollution control pro- gram if it complies with this act. All

    local pollution control programs, whether established before or after the effective date of this act, must:

    (a) be approved by the department as adequate to meet the requirements of this act and any applicable rules and regula- tions pursuant thereto.

    * * *

    (6) Notwithstanding the existence of

    any local pollution control program, whether created by a county or municipality or a combination thereof or by a special law,

    the department shall have jurisdiction to enforce the provision of this chapter and any rules, regulations, or orders issued pursuant to this chapter throughout the state; however, whenever rules, regulations, or orders of a stricter or more stringent nature have been adopted by a local pollu- tion control program, the department, if it elects to assert its jurisdiction, shall

    then enforce the stricter rules, regula- tions, or orders in the jurisdiction where they apply. (Emphasis added)

    
    

71. Broward County has an approved local pollution control program. The program as applicable here is administered by the Broward County Environmental Quality Control Board (EQCB) which is a semi-autonomous body created by the County Commission of Broward County pursuant to Section 8.17 of the County Charter.

    
    

72. Pursuant to its authority 28/ the EQCB adopted Chapter 27; The Broward County Environmental Quality Control ACT (EQCA), effective June, 1980. The Act is a pervasive regulation of air, water and noise pollution in the county. Section 27-1.02, (EQCA). Water pollution under the act is regulated by Chapter 27-5 which prohibits discharges into county waters which will result in lowering the water quality below those standards set out in Section 27-5.07 et. seq. EQCA.

    
    

73. Section 27-5.072 EQCA provides numerous criteria for fresh waters. Among them are:

    
    

    (16) Nitrogen-total nitrogen as N (from Nitrate, Nitrite NH3, and organic) not to exceed 1.5 mg/l.

    
    

    (19) Oxygen, dissolved-Daily average not less than 5 mg/l; single reading never less than 4 mg/l.

    
    

    (23) Phosphorus (total) - Not to exceed

    0.02 mg/l.

    
    

    Without the aid of expert testimony the undersigned is unable to tell if DER's standard for nitrogen, a nutrient, is stricter than that of Broward County.

    Section 17-3.121, Florida Administrative Code establishes the maximum nutrient levels as:

    
    

    In no case shall nutrient concentrations of a body of water be altered so as to cause an imbalance in natural populations of aquatic flora or fauna.

    
    

    This does not translate into a given number of milligrams per liter which I can correspond to the Broward County standard.

    
    

74. By rule, DER does not appear to have established a phosphorous content limit for Class III fresh water. It therefore appears that the Broward County standard is stricter by default.

    
    

75. The real point of contention between the parties here is whether the Broward County standard for dissolved oxygen is stricter than that of DER. They both require at least 5.0 mg/l of dissolved oxygen, but the DIR test makes no provision for any reading below that level. In contrast, Broward County will allow readings as low as 4.0 mg/l so long as the daily average is above 5.0 mg/l. If however, a site specific alternative criterion from DER's standard is granted and the new standard is less than 4.0 mg/l at any time, then it logically follows that the Broward County standard, unless also exempted, is

    stricter and must be applied pursuant to Section 403.182(6), Florida Statutes (1981). The burden of proving that reasonable assurances have been given under a DER rule is on the permit applicant. J.W.C. Company, Inc., v. Department of Transportation, 396 So.2d 778, 788 (Fla. 1st DCA 1981). It follows that the burden of proving compliance with stricter local standards which supplants a DER rule is also on the permit applicant. SFWMD has failed to give reasonable assurances that the discharge waters of the project will not violate the criteria of Broward County for either dissolved oxygen or phosphorous. Should that prove to be impossible due to natural conditions, provision is made in the EQCA for a variance from standards. Section 27-2.13, EQCA. Accompanying the variance procedure is a provision for an evidentiary hearing and judicial review. Sections 27-2.15 and 27-2.28, EQCA.

    
    

76. SFWMD argued in its proposed Recommended Order that the new standards found in the EQCA have not been specifically approved by DER; therefore, they do not require enforcement under Section 403.182(6), Florida Statutes. That argument ignores the clear language of the statute. It provides for approval of programs by DER, not for approval of rules. The District's argument may have had its origin in sloppy language written by the undersigned in an Order entered in the case of Lake County Utilities, Inc. v. Department of Environmental Regulation, 3 FALR, 1396A (Florida Department of Environmental Regulation, Final Order June 24, 1981) where it was stated that without prior DER approval local rules may not be enforced. In correcting this statement, the Department wrote in its Final Order:

    
    

    This conclusion of law is rejected as phrased, and modified as follows. Sec. 403.182(1)(a) requires that the local pollution control program, not the local standards, be approved by the Department. Once the Department has approved a local pollution control program pursuant to Sec. 403.182(1), F.S., then it must enforce the stricter local rules concerning

    the activities within the Department's juris- diction. 3 FALR at 1398A.

    
    

    Conclusion

    
    

77. On the issue of water quality, the applicant has failed to provide sufficient data to accurately determine the daily DO range for WCA-3A and for C-

    139 once constructed. While an exception from the Class III DO standards is justified for both the canal and the waters which will discharge into the water management area, the exact parameters of those exceptions must await more accurate data. Once established the exceptions must account for the difference in DO regimes in the water management area as compared to the expected discharge waters of C-139.

    
    

78. This project includes the placement of fill in navigable waters of the state located in Broward County. Until the County withdraws its disapproval of the project or until the location of 5-239 is changed, DER may not issue a dredge and fill permit which authorizes the construction of S-239.

    
    

79. Finally, Broward County has adopted local standards through an approved local pollution control program which must be enforced if DER grants a dissolved oxygen exception. Before a water quality permit can be issued the project must satisfy local standards or South Florida Water Management District must receive a variance from those standards.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED:

That the Department of Environmental Regulation enter an Order denying South Florida Water Management District's application for a water quality permit and for a dredge and fill permit.

DONE and RECOMMENDED this 13th day of October, 1982, in Tallahassee, Florida.

MICHAEL PEARCE DODSON

Hearing Officer

Department of Administration Division of Administrative Hearings Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32301

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 13th day of October, 1982.

* NOTE: Illustration I, noted in paragraph 8 and Illustration II, noted in paragraph 49 are not a part of this ACCESS document. Illustrationn II is available for review

in the Division's Clerk's Office.

ENDNOTES

1/ See Section 253.124, Florida Statutes (1981).

2/ These Intervenors will be referred to as the Alico Intervenors.

3/ This letter amended the Department's initial letter of intent which was issued on May 20, 1980.

4/ In its Proposed Recommended Order SFWMD states that it filed a similar Petition on July 29, 1980. This Petition does not appear to have been forwarded to the Division of Administrative Hearings.

5/ This area is called the Everglades Agricultural Area (EAA). 6/ Cubic feet per second.

7/ A levee extending down into the northwest corner of Water Conservation Area No. 3A (WCA-3A).

8/ The General Design Memorandum was submitted by the nominal applicant here, SFWMD, in support of the permit application. It is a compendium of rank hearsay as to all parties here except for SFWMD. Section 90.803(18), Florida Statutes (1981).

9/ The environmental benefits such as a possible change in the hydroperiod in WCA-3A are only incidental to the proposal.

10/ The project is designed for a one in ten year storm, i.e., the heaviest rainfall event that can statistically be predicted to occur in a ten year period.

11/ As stated in the General Design Memorandum:

If increased land usage and new development occurs as a result of the project, there will

be a companion decrease in the quality of runoff water entering the canal from agricultural residues. These residues will include similar pesticides, herbicides and nutrients as are presently entering the canal system, the level of which can only be controlled by enforcement measures.

12/ Created pursuant to Circular A-95 from the Office of Management and Budget.

13/ During these proceedings the terms ordinary high water (OHW) and mean high water (MHW) were used interchangeably. Properly, OHW refers to non-tidal fresh water and MHW refers to tidal marine water.

14/ Interoffice Memorandum dated August 1, 1979 to Ms. Helen Setchfield, a technical assistant for the Deputy Division Director of the Division of Environmental Permitting.

15/ Curiously, the District's report contained as Appendix A a letter to Mr. Charles Warren, Chairman of the Council on Environmental Quality, from Governor Bob Graham which explains the state's reasoning for its continuing support of the request for federal construction funds for the Hendry County Project. The technical data attached to Governor Graham's correspondence is a detailed response to the environmental objections raised during the A-95 Clearinghouse review.

16/ These readings report monthly samples taken once a day at varying times of day, mostly in the morning hours between 8:00 and 11:00 a.m. They provide only a guess at the dissolved oxygen concentration for an entire day because dissolved oxygen varies along a sinusoidal diel curve. The maximum values along that curve occur around 5:00 p.m, while the minimum values occur around 6:00 a.m., just before dawn. This variation is the result of the influence of sunlight on oxygen-producing photosynthetic activity.

17/ These factors are not present in the natural conditions of WCA-3A. They may partially account for the difference between the lowest DO values observed in the canals and those observed in WCA-3A.

18/ See also Sheet 2 of 11, drawings supplied in support of SFWMD's application, which shows a section of C-139 at station 1319+47 overlaid on a section of the existing borrow canal.

19/ A tree island is a slightly elevated portion of marsh where hardwood trees such as Florida Elder and Ficus grow. The islands provide shelter for numerous types of wildlife.

20/ That is the area bounded by the Miami canal to the east, Alligator Alley to the south, L-28 to the west and L-4 to the north.

21/ The Florida Game and Fresh Water Fish Commission requested stage duration information from SFWMD before giving its approval to the project. Such data was not provided. The Commission has not approved or affirmatively disapproved the project.

22/ Compare Section 17-4.29(1), Florida Administrative Code for the written policy.

23/ These are 1977 dollars.

24/ These numbers do not correspond to those later used in DER's amendment to its letter of intent because on June 12, 1980 the rules were amended and renumbered. Subsequently Broward County was allowed to amend its Petition to conform to the new numbers.

25/ See Kyle Brothers Land Company v. Department of Environmental Regulation, 4 FALR 832A, 833A (Fla. DER, Final Order March 5, 1982), where DER asserts jurisdiction over artificially created navigable waters.

26/ Order November 12, 1980 in response to DER's Motion to Strike.

27/ This is like trying to disguise a horse by painting stripes on it and calling it a zebra.

28/ The authority of the EQCB has a labyrinthine lineage ably traced in Broward County's Proposed Recommended Order. Its sufficient to note here that the EQCB is the heir to the County Pollution Control Board whose program was originally approved by the Florida Department of Pollution Control in 1972.

COPIES FURNISHED:

Victoria Tschinkel, Secretary Department of Environmental Regulation

Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32301

Kenneth F. Hoffman, Esquire OERTEL & LARAMORE, P.A.

646 Lewis State Bank Building Tallahassee, Florida 32301

Annette Star Lustgarten, Esquire Assistant General Counsel Broward County Board of

County Commissioners

201 Southeast Sixth Street

Fort Lauderdale, Florida 33301

Stephen A. Walker, Esquire and Stanley J. Niego, Esquire 3301 Gun Club Road

Post Office Box V

West Palm Beach, Florida 33402

Alfred W. Clark, Jr., Esquire and Alfred J. Malefatto, Esquire Twin Towers Office Building

2600 Blair Stone Road Tallahassee, Florida 32301

Philip S. Parsons, Esquire

AUSLEY McMULLEN McGEHEE CAROTHERS & PROCTOR

227 South Calhoun Street Post Office Box 391 Tallahassee, Florida 32302

William E. Stockman, Esquire SULLIVAN BANAGHAN BAILEY

& GLEASON, P.A.

301 First Federal Building 2335 East Atlantic Boulevard Pompano Beach, Florida 33062

Timothy Keyser, Esquire Post Office Box 92 Interlachen, Florida 32048

Rick L. Cullen, Esquire

Suite 1820 Home Federal Tower 1720 Harrison Street

Post office Box 27 Hollywood, Florida 33022

Charles Lee, Vice President Florida Audubon Society Post office Drawer 7 Maitland, Florida 32751

Docket for Case No: 80-001048

Orders for Case No: 80-001048