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 were received into evidence.
Petitioner James C. Dougherty owns property known as Buccaneer Point, which is a peninsula on the western side of Key Largo, Florida. This property is also known as Buccaneer Point Estates, and is a residential subdivision.
On June 26, 1979, the Petitioner individually and as a trustee, applied to the Respondent for a permit to conduct dredging and filling activities at the aforementioned property, in particular, the project contemplated dredging access channels in Florida Bay and Buttonwood Sound and the connection of two existing inland lakes on the property site to those water bodies. After review, the Respondent denied the permit request and asserted permit jurisdiction in keeping with Chapters 253 and 403, Florida Statutes, and associated regulatory provisions found in the Florida Administrative Code. Having been denied the permit, the Petitioner requested a formal hearing to consider the matters in dispute and a hearing was conducted on the dates alluded to in this Recommended Order. The hearing was conducted in keeping with Subsection 120.57(1), Florida Statutes.
The denial of the permit request was in the form of a letter of intent to deny dated May 27, 1980. See Petitioner's Exhibit No. 4, admitted into evidence. Following the receipt of the letter of intent to deny, the Petitioner commenced a series of revisions to the project leading to the present permit request which is generally described in Petitioner's Exhibit No. 6, admitted into evidence. If the project were allowed, it would call for the dredging of access channels in Florida Bay and Buttonwood Sound, those channels to be 75 feet long and -5 feet N.G.V.D., with side slopes of 1:3. Additional inland canals would be dredged to connect the access channels with the interior lakes, the north channel being 100 feet wide -6 feet N.G.V.D. and 400 feet long, and the south canal being 62 feet wide -6 feet N.G.V.D., and 225 feet long. Side slopes of the canals would be 1:3. The project also intends the connection of the two interior lakes by the excavation of a 162-foot long by 50-foot wide connection or plug at a depth of -5 feet N.G.V.D. The material from this excavation of the plug would be used as ton soil on the uplands. Finally, the permit proposes the shoaling of the North Lake on the property to -15 feet
N.G.V.D. by the use of clean limerock fill.
Through its opposition to the project, the Respondent has indicated concerns that bay grass beds would be damaged over the long term by boats as a result of the dredging of proposed channels and canals; a concern about increased BOD demands which would lower water quality following the long-term accumulation of organic materials in the channels. The Department also contends
that construction of the south channel would destroy productive grass beds and "vegetated littoral shallows," which now serve as a nursery and feeding ground for numerous invertebrates. Respondent believes that the north channel would eliminate an area of mangrove wetlands which filters nutrients and toxic materials and serves as a nursery and feeding ground for estuarine organisms and wading birds. The Respondent also feels that the north channel would disturb a stable mangrove humus peat band, which now supports large numbers of invertebrates and which band extends along the northern shoreline of Buccaneer Point. The Department, in discussing the acceptability of the permit, has expressed concern that bottoms adjacent to the north channel would be harmed by increased erosion and sedimentation of the disturbed mangrove peat. Respondent has further stated that water in both interior lakes is now in violation of water quality standards and that water quality data shows high oxygen demands.
The Respondent has put at issue the Petitioner's hydrographic report on the flow-through lake system, citing what it believes to be errors in the report.
The Respondent has expressed specific concern about water quality standards as set forth in the following rules: Rule 17-3.121(5), Florida Administrative Code, Bacteriological Quality; Rule 17-3.121(7), Florida Administrative Code, Biological Integrity; Rule 17-3.061(2)(b) Florida Administrative Code, BOD; Rule 17-3.121(14), Florida Administrative Code, Dissolved Oxygen; Rule 17-3.121(20), Florida Administrative Code, Nutrients; Rule 17-3.061(2)(j) Florida Administrative Code, Oils and Greases; Rule 17- 3.061(2)(1), Florida Administrative Code, Phenolic Compounds; Rule 17-3.121(28), Florida Administrative Code, Transparency; and Rule 17-3.061(2)(a), Florida Administrative Code, Substances.
The Respondent indicated that it felt the project would be adverse to the public interest because it would cause erosion, shoaling, or creation of stagnated areas of water, would interfere with the conservation of fish, marine life and wildlife or other natural resources, and would result in the destruction of oyster beds, clam beds or marine productivity, including destruction of natural marine habitats or grass flats suitable as nurseries or feeding grounds for marine life, including established marine soils which are suitable for producing plant growth of a type useful as nursery or feeding grounds for marine life. The project was also thought by the Department to be not in the public interest because it would reduce the capability of the habitat to support a well-balanced fish and wildlife population because it would impair the management or feasibility of management of fish and wildlife resources.
The Petitioner has employed hydrographic engineers to conduct a study of the flushing characteristics of the system, should the access channels, canals and interior connections be allowed. It is an undertaking on the part of the Petitioner dealing with physical characteristics of the waterway and the forcing conditions in and around the site, which include tidal flow, wind-driven flow and mean sea level changes.
The two State water bodies at the site, Buttonwood Sound and Florida Bay, are separated by the project site and other islands at the northern tip of the project. The effects of this separation changes the arrival time of high tide at the northern and southern extremities of the project site promoting a mean sea level surface difference between Buttonwood Sound and Florida Bay. The sea level difference or "head" assists in generating flow in the sense of moving the water from the high to the low elevation.
To gain an exact measure of the hydraulic head, tidal gauges were placed at the northern entrance channel and in the southern entrance channel.
The use of these gauges over a period of time allowed the determination of the spring and neap tide conditions. The "head" differences finally arrived at by calculations by the Petitioner's experts assisted in the creation of a mathematical model to determine flows in the water system. This lead to an estimate of flushing time of 2 1/2 days. See Petitioner's Exhibits 7-9,admitted into evidence. In turn, an estimation was made that approximately half of the flow which presently flows through Baker Cut, at the project site, would be diverted to the waterway system if constructed and this in conjunction with other calculations led to the conclusion that the flushing time was 3 to 4 days as opposed to the 2 1/2 days arrived at by the mathematical system. See Petitioner's Exhibit 10, admitted into evidence. The estimate of 3 to 4 days was the more current study and was premised upon conditions of an adverse south, southeast wind which would cause the water to move north, absent current conditions, as opposed to this south direction which was the normal direction of movement.
The Petitioner also examined the flushing characteristics of similar projects which were not as favorable because of a lack of "head" differences which assisted in the flow of the water.
Based upon the results of the studies conducted by Petitioner's experts, the flushing time of the system is found to be 3 to 4 days.
While there is some correlation between a short flushing time for a water system and the water quality within that system, examination of other channel systems in the Florida Keys indicates that short flushing times do not always cause the waters to meet State water quality standards. For that reason, water quality considerations must be dealt with bearing in mind the physical characteristics of the system extant and as proposed using flushing time as a part of the equation. Those specific water quality criteria will be addressed in subsequent portions of these findings.
Tests conducted by the parties dealt with the amount of dissolved oxygen in waters at the project site, and revealed dissolved oxygen levels of less than 4 parts per million, even when testing at depths less than 15 feet. This condition is one which is not unusual for natural water systems which have remarkable stability and are not the subject of flow or flushing, as example in mangrove forests. If the system were open, dissolved oxygen levels in the interior lakes would improve, though not necessarily to a level which no longer violates State water quality considerations related to dissolved oxygen levels.
On the related subject of BOD or biochemical oxygen demand, that demand placed on oxygen in the water biochemicals or organic materials, the system as it exists and as proposed does not appear to cause excessive BOD, notwithstanding an 8 to 12 foot wide band of peat substrate in the area of the North Lake wall. Although the biochemical oxygen demand related to the layer of peat in the lake's system in its present state presents no difficulty, if the water system were open this peat layer would cause a significant amount of loading of biochemical oxygen demand in the lake system and eventually the surrounding water bodies.
On the question of nutrients in the marine system, reflected by levels of phosphorus and nitrogen or variations impact the compensation point for the North Lake. In fact, there would be improvement in transparency or clarity for both lakes. Nonetheless, in the short run, the turbidity problems associated with the placement of clean limerock fill over the flocculent peat material would violate the transparency standard in that location.
On the subject of toxic substances, meaning synthetic organics or heavy metals in sea water, tests by the Petitioner at the project site and comparison site demonstrated that those substances would not exceed the criterion related to those materials.
On the subject of fecal coliform bacteria, water quality samples were taken at the project site and a comparison site. The residences now at the project site and those at a development known as Private Park use septic tanks. In view of the porous nature of the limerock foundation upon which the residences are built and in which the septic tanks are placed, the possibility exists for horizontal movement of the leachate into surrounding waters of the project site and the landlocked lakes; however, this movement is not dependent upon the opening of a flow-through system at the project site. Moreover, tests that were conducted in the comparison site and project site reveal less than one fecal coliform bacterium per 100 milliliters and if the system were open, the circulation in the lakes would lower the residence time of leachate.
In describing the habitat afforded by the interior lakes as they now exist, the North Lake does not afford animals or fish the opportunity to colonize, because there are no areas where they may disappear into the lake. This limits the opportunity for habitat to those animals who have their entire life cycle in a landlocked system, and necessarily of those substances in the water, water quality standards for nutrients will not be substantially altered by the proposed project. In other words, the project will not cause an imbalance in natural aquatic flora or fauna population, by way of advent of phytoplankton bloom leading to eutrophy. The nutrient samples taken in the interior lakes demonstrate normal sea water levels and those levels outside the lake were low and the flow-through system is not expected to raise nutrient levels.
Sampling for oils and greases in the comparison waterways where residential development had occurred in the lakes and ambient waters at the site, did not indicate problems with those substances in the sense of violation of State water quality standards.
Sampling for phenolic compounds at the comparison sites and at the lakes and ambient waters at the project site showed less than .001 micrograms per liter in each instance of the sample. There are no sources or potential sources of phenols at the site.
On the question of the State water quality dealing with transparency, that standard requires that the level of the compensation point for photosynthetic activity shall not be reduced by more than ten percent (10 percent) compared to natural background levels. The compensation point for photosynthetic activity is the level at which plant and animal respiration and photosynthetic activity are equal. In static state, the Petitioner's analysis of this criterion revealed that the North Lake compensation point would be below
15 feet and the South Lake would have no compensation point, due to its shallow nature. In the long run, the opening of the proposed connections in the planned development together with the shoaling, would not negatively excludes animals with a long larva stage. Examination of comparison sites pointed out the possibility for colonization at the project site should the waterways be opened. Specific testing that was done related to colonization by fishes, in particular sport and commercial fishes, demonstrated that those species increased in richness, density and diversity if a system was opened by channels and canals. In addition, the comparison of this project site and systems similar to that
contemplated by the open waterway indicated that sea grasses would increase after a period of years if the system were open.
Sampling was conducted in substrates to gain some understanding of the effect of the proposed project on the Shannon Weaver Index, i.e., whether there would be a reduction by less than 75 percent of established background levels. Although there would be no problem with the biological integrity standard related to South Lake and its waterway, the North Lake and waterway system could be expected to be in violation of that index due to the present circumstance as contrasted with that circumstance at the point when water flowed through.
If the waters were opened to the project site, marine biological systems on the outside of the interior lakes would be given an opportunity to use those lakes as a nursery ground or spawning site for fishes, a refuge in cold weather conditions and a site for predators to find prey. If the lakes were opened to the outlying areas, alga, grass populations, mobile invertebra, plankton and other forms of life could utilize the interior lakes.
In the area where the north canal or inland canal would be placed are found red mangroves (Rhizophora mangle) and black mangroves (Avicennia germinas)
. The mangroves are frequently inundated by tidal waters and are the most mature and productive of the mangroves which are found at the property site. Some of those mangroves are located waterward of the line of mean high water and would be removed if the project is permitted.
The mangroves at the project site provide filtration of sediments and nutrients contained in stormwater runoff from adjacent upland areas, as well as from tidal flows. This filtering process is an essential part of the maintenance of water quality in the adjacent open bay estuarine or marine system. Nutrients in the tidal waters, as well as runoff waters, are settled out and in the sediments retained by the mangrove roots and are transformed into vegetative leaf matter by the mangroves as they live and grow. The root systems of the mangroves and their associated vegetation provide stabilization of estuarine shoreline sediments and attenuation of storm-generated tides. These mangrove wetlands provide unique and irreplaceable habitats for a wide variety of marine as well as upland wildlife species.
The mangroves also contribute leaf or detrital matter to the surrounding State waters and estuarine system in the form of decayed leaf litter. This organic component forms the basis of the marine food chain and is used directly for food by a variety of marine organisms, including small fish. Commercial and sports fish species feed directly on the mangrove detritous or on the fish or other forms of marine life that feed on that detrital matter. In removing the mangroves, the applicant causes a loss of the function which those plants provide in the way of filtration and the promotion of higher water quality and causes biological impact on marine organisms, to include sports and commercial fishes.
In the area of the north access channel, there exists a band of stable mangrove peat which is 50 to 75 feet wide and one to two feet thick. Waterward of this expanse of humus is located a sandy bottom vegetated by turtle grass and other sea grasses and alga.
The turtle grass in the area of the proposed north channel serves as a nursery and feeding ground for a rich and diverse aquatic community, including species of oysters, clams and other mollusks, as well as commercial and sports fish. This grass also filters and assimilates contaminants in the water column
and serves to stabilize sediments to prevent turbidity. Dredging would destroy the turtle grass beds and their functions.
These impacts on mangroves and sea grasses are significant matters, notwithstanding the fact that the possibility exists that mangroves would repopulate in the area of the north channel and North Lake, together with the repopulation of sea grasses in that area after a period of years.
The south waterway would cause the removal of certain sea grasses, which could be expected to revegetate. Moreover, at present, the sea grasses in this area are sparse due to the shallow waters in that area, which waters are too warm for sea grasses to thrive.
Construction of the access channel would result in increased erosion and sedimentation based upon boat wake wash and in turn allow for adverse impact on the biologically productive bay bottom. Water quality degradation can be anticipated because of the erosion and leaching of dissolved particulate material from the disturbed peat band at the shoreline and into shallow waters in the bay and into the North Lake.
Transition from the inland channels to the bay side access channels at the north and south will be box cut at the mean high water line and in view of the fact that the inland channels are 100 feet wide and the bay side access channels are only 50 feet wide, erosion can be expected, causing turbidity.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties and the subject matter to this hearing. Section 120.57, Florida Statutes.
The Respondent has jurisdiction over the proposed activities in this permit request, premised upon Sections 253.123 and .124, Florida Statutes, and Rule 17-4.29, Florida Administrative Code. This conclusion is reached because the dredging and attendant filling activities in opening up the interior lakes will occur in or cause a water connection to waters of the State.
Section 253.123, Florida Statutes, concerns dredging activities in waters of the State and Section 253.124, Florida Statutes, concerns filling activities in State waters. Rule 17-4.29, Florida Administrative Code, was designed to effectuate the regulatory purposes of those statutory provisions.
By the construction of interior canals and access channels to the State waters, the Petitioner will destroy mangroves and sea grasses which serve as fish, marine and wildlife habitat and filter pollutants which are harmful to the life forms. In addition, the removal of these resources would affect marine productivity, including nurseries and feeding grounds for marine life. In summary, the effect of the activities would be contrary to sound conservation practices related to protection of marine life species.
Through the process of the excavation, marine soils would also be disturbed.
These aforementioned matters are at odds to Rule 17-4.29(6), Florida Administrative Code, as it carries out the purposes of Subsection 253.123(2), Florida Statutes, and are contrary to the public interest.
This decision is reached with the knowledge of the Petitioner's belief that the environment at the project site would improve in the future; however, this estimate is not sufficient to cause a different decision on the issue of public interest.
The Respondent also has jurisdiction over the permit request in keeping with the Provisions of Section 403.087, Florida Statutes, and Rule 17- 4.28, Florida Administrative Code.
In the context of the regulatory statute and rule cited above, the Department has contended that the following water quality criteria would be violated: Rule 17-3.121(5), bacteriological quality; Rule 17-3.121(7), biological integrity; Rule 17-3.061(1)(b), BOD; Rule 17-3.121(4), dissolved oxygen; Rule 17-3.121(20), nutrients; Rule 17-3.061(2)(j), oils and greases; Rule 17-3.061(2)(1), phenolic compounds; Rule 17-3.121 (28), transparency; Rule 17-3.061(2)(o), deleterious substances.
The Petitioner has not given the necessary reasonable assurances that Rule 17-3.121(7), Florida Administrative Code, related to biological integrity, will not be violated in the North Lake and waterway systems.
The Petitioner has failed to give necessary reasonable assurances under Rule 17-3.121(28), Florida Administrative Code, related to transparency, in that there will be some short run turbidity problems associated with the placement of clean limerock fill on the peat later in the area of the North Lake. This aspect of the project, together with the circulation of other peat material would cause loading in the lake system and surrounding water bodies in violation of the standards related to biochemical oxygen demand found in Rule 17-3.061(2)(b), Florida Administrative Code. Consequently, reasonable assurances have not been given for this water quality criterion.
Other water quality criteria spoken to by the Respondent in its intent to deny this permit have been sufficiently addressed by the Petitioner to conclude that reasonable assurances have been given that those water quality criteria will not be violated by this project.
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.
