STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
ARMAND J. HOULE, )
)
Petitioner, )
)
vs. ) CASE NOS. 87-1469
) 87-4404
STATE OF FLORIDA, ) DEPARTMENT OF ENVIRONMENTAL ) REGULATION, )
)
Respondent. )
)
RECOMMENDED ORDER
Consistent with the Order of Consolidation furnished to the parties by the undersigned on October 21, 1987, a hearing was held in this case before Arnold
H. Pollock, a Hearing Officer with the Division of Administrative Hearings, in Naples, Florida on February 16-18, 1988. The issue for consideration is whether the Petitioner should be granted a permit for dredge and fill on his property in Collier County, Florida, and consistent therewith whether Petitioner should be granted a variance from the Department's dissolved oxygen standard for waters of the State located on the property.
APPEARANCES
For Petitioner: Robert Routa, Esquire
ROBERTS, EGAN & ROUTA, P.A.
217 South Adams Street Post Office Box 1386 Tallahassee, Florida 32302
For Respondent: Richard Grosso, Esquire
Department of Environmental Regulation 2600 Blair Stone Road
Tallahassee, Florida 32399-2400 BACKGROUND INFORMATION
On March 6, 1987, the Respondent, Department of Environmental Regulation (DER) issued an Intent to Deny Petitioner's application for a permit to construct a 63 acre borrow pit in Collier County, Florida. On March 13, 1987, Petitioner filed a Petition for Administrative Hearing which was referred to the Division of Administrative Hearings by the Department on April 7, 1987. The case was originally scheduled for hearing by Linda M. Rigot, the assigned Hearing Officer, on October 13-16, 1987.
On September 15, 1987, the DER notified Petitioner of its intent to deny his request for a variance from the dissolved oxygen standards set forth in DER rules in the borrow pit and on September 17, 1987 Petitioner submitted a Petition for Administrative Hearing on the second denial. Thereafter, the
parties filed a Joint Motion for Continuance and Consolidation to postpone the original permit hearing and to consolidate the variance hearing therewith. This request was granted, and the case was rescheduled for February 16-19, 1988, by the undersigned, to whom the case had been transferred in the interim.
At the hearing Petitioner presented the testimony of Petitioner, Armand J. Houle; Raymond Chester, Petitioner's partner; Daniel W. Brundage, an engineer specializing in surface water hydrology and drainage; Thomas Missimer, a hydrogeologist specializing in ground water; Dr. Durbin C. Tabb, an expert in botany, estuarian biology, and zoology; and Dr. Martin Roessler, an expert in marine biology. Petitioner also introduced Petitioner's Exhibits 1-18, excluding Petitioner's Exhibits 13 and 16, which were not admitted but are attached to the record as proffers. Respondent presented the testimony of David
Bickner, an Environmental Supervisor II with the DER and an expert in water quality, ecosystems, biology, zoology, dredge and fill permitting and dredging and filling on ecosystems; James W. Beever, III, an Environmental Specialist II for DER and an expert in jurisdictional determination; and Bryan Barnett, a Biological Administrator with the Florida Game and Fresh Water Fish Commission qualified as an expert in biology. Respondent admitted Respondent's Exhibits 1, 2, 5, 6, 8, 10, and 13-15.
Subsequent to the hearing, a transcript of the proceedings was provided to the undersigned on March 17, 1988. Both parties submitted Proposed Findings of Fact thereafter which have been ruled upon in the Appendix to this Recommended Order.
FINDINGS OF FACT
In September, 1985, Armand J. Houle purchased an 80 acre tract located eight miles east of the Naples toll booth on State Road 84 and approximately two miles north of Alligator Alley. The purpose of buying the property was to mine the limestone rock thereon, through a borrow pit, for the purpose of selling it as road base to the State of Florida Department of Transportation for use in the construction of 1-75 (Alligator Alley extending from Naples to the Florida east coast). While no contract has existed or currently exists, correspondence between the Department of Transportation and counsel for the Petitioner indicates that approximately 800,000 cubic yards of fill will be required in the immediate area and that Petitioner's proposed borrow pit would be the ideal source of this rock.
Prior to making the purchase, Mr. Houle's associate, Raymond Chester, contacted both the Department of Transportation concerning the potential use of the rock and representatives of the Department of Environmental Regulation. The response he received from these agencies led him to, believe that a borrow pit might well be permitted and the effort should be pursued. After Mr. Chester and Mr. Houle became partners in the property, they contacted county officials and received zoning and other local permits for the facility. It was only after this, when DER was approached again that the applicants were advised a permit would not be issued.
Mr. Houle agrees that, if the permits as requested were granted, he would accept a prohibition against further development of the property after removal of the rock and fill, would allow access to the restored lakes to the public for fishing and recreation; would agree to an appropriate restoration plan for the site; and would ensure compliance with the restoration plan stipulated by the Department.
After the property was purchased in late 1985, Mr. Houle approached Daniel W. Brundage, the vice-president of an engineering firm in Naples, with a view toward developing the property in question as a borrow pit. Plans were developed for application for permits with the County and Mr. Brundage, consistent therewith, visited the site on several occasions. He found some vegetation off from the site which could be related to wetlands and contacted a representative of DER with whom he went to the site to look it over. This agency representative, Mr. Beever, concluded that the property was a jurisdictional wetland.
Mr. Brundage nonetheless felt confident enough to begin work with the County to secure a permit to convert this land, classified as agricultural, to mining property. Consistent with his efforts, the request for conversion went through a four step process on the way to the County Commission which included approval by (1) the Water Management Advisory Board, (2) the Environmental Advisory Council which recommended same changes accepted by the Petitioner, (3) the Subdivision Review Committee, and (4) the Coastal Area Planning Council. All four subagencies recommended approval and thereafter the County granted its permit for work to begin.
Assuming all permits are issued, the property will be developed in two stages. In stage one the site will be cleared of vegetation, and the top soil on Phase I, the western 40 acre parcel, removed and used to construct a berm around the entire perimeter of the site as well as between the two 40 acre parcels. The berm will be entirely within property boundaries and used to isolate any water removed from the active phase within the site so that it does not flow onto adjoining property. The eastern 40 acre tract, (Stage II) will be used for water storage during the excavation of Stage 1. It is anticipated that no water will leave the site during construction of either stage with the exception of extraordinary waterfall during rainfall or hurricane. Before any water is discharged, it will go into a storage configuration so that any sediment therein would settle to the bottom before discharge. The discharged water will be filtered through hay bales or filter screens to avoid any turbidity in the surrounding water. The design of this holding capacity in the filter system is sufficient to accommodate the water of a 25 year storm.
As Stage I is completed, Stage II will be opened, and the ground water from Stage II pumped back to Stage I for storage. A similar storage and filtration system will be utilized around Stage I. Primary access to the property will be along the western boundary of 8 Mile Canal, but if this is not allowed, Petitioner proposes to build a single span bridge across the 8 Mile Canal at 40th Street to allow access to the property.
After the lime rock has been excavated, the berm will be removed and the side of the property graded to form the banks of a 56 acre lake for recreational purposes. The edge of the lake will be a meandering slope at a ratio of 10:1 which will be assured by survey to be in compliance with the County plan. The lake, which will have a maximum depth of 20 feet, will be excavated at a depth ratio of 2:1 from the edge of the slope to the bottom of the lake.
During excavation and prior to restoration, heavy equipment will be used for the removal of the rock such as drag lines, back hoes, motor graders, and bulldozers and an area within the boundaries of the site will be isolated and set up for fueling and maintenance. It will be floored with a membrane to prohibit oil and fuel from getting into the ground as a result of accidental spills. Storage tanks for fuel and oil will be above ground and available for
immediate inspection. Waste facilities will be in the form of porta-potties and any water falling in this maintenance area will be drained to a low sump within the membraned area for storage until evaporation or safe removal. In the event of a heavy rainfall, water can be stored and anti-sedimented and cleaned and, if necessary, operations can be temporarily stopped.
Mr. Brundage indicates that he has never seen any standing water on the site during his five visits nor has any standing water ever been reported to him. He is aware of no historical or archaeological sites on the property, and at no point would rock be mined within 50 feet of the property line.
Dr. Durbin Tabb, a botanist, was retained by the Petitioner to prepare a plan for restoration of the site after mining operations were complete. In preparing his plan, he visited the site on several occasions finding varying plant life, much of which was grasses and rushes. In the north was a pine lowland where he saw palmettos scattered in the grassland as well as a few dwarf cypress trees. He also observed a small cluster of cabbage palms in the southern portion of the eastern tract and noted that the currently existing berm along the eastern boundary of the eastern tract is currently being invaded by exotic plant life including the Brazilian pepper. Dr. Tabb found little evidence of recent surface water accumulation; mollusk residue showed no evidence of recent viability; and he found no crawfish burrows which, if present, would show a water table near the surface. Other visitors to the site, however, did find crawfish burrows.
The marsh soil shows that, at some time in the past, it was wet enough to support a soil-forming community. This is no longer' the case according to, Dr. Tabb. The process was stopped by the formulation of the Golden Gate Canal System in the 1960's. The existing marsh does, however', hold sufficient water to support the growth of muhli grass.
Dr. Tabb's restoration plan is his best estimate of how the property can be restored to its previous condition by replanting native species found in the area. The program will include littoral zone vegetation to provide shelter and a feeding zone along the water's edge which does not now exist. The plan calls for the saying of the marsh soil. Since neither DER nor the client responded to his plan, when submitted, with any suggestions or corrections, he assumed it was approved.
Dr. Tabb, who is also an expert in estuarian biology and zoology, concluded that the area on which this site is located is a very poor habitat for deer and panther. The red cockaded woodpecker has no trees on the property which it specifically desires and the property is a poor or nonexistent habitat for the indigo snake and the Everglades snake. It might, however, constitute a habitat for the Cape Sable seaside sparrow, but this bird has never been seen in this inland area. Panthers cross the area as do bears, but the presence of the excavated lake would be no more hindrance to them in their crossing than would the presence of Alligator Alley and the proposed 1-75.
The area with sawgrass and muhli grass, which is dominant throughout the Golden Gate area, is called a "dry prairie" as opposed to a "wet prairie." While some of the same plants exist, it is somewhat different in that there are no viable wetlands wildlife organisms currently existing on the property. In Dr. Tabb's opinion, the property has lost its wetlands characteristics and only the marsh soil's water retention permits the life of the grasses currently existing. Wading birds would use the site later but do not currently utilize the area where excavation would take place.
In Dr. Tabb's restoration plan, the slope to the lake would be replanted with saw and muhli grasses down to the litoral zone. From there on to the water, a palette of normal wet grasses would be planted to serve as feeding sites and roasting sites for the birds. In addition, an island planted with willows would be constructed off shore in the lake.
Deer currently visit the area. They are not currently supported on the land though Mr. Barnett, of the Game and Fresh Water Fish Commission, indicated that they come out of the pine flats at night to feed on the grasses on the prairie. These deer form a large portion of the food chain for the panther, and Dr. Tabb does not consider it conceivable that the project, replanted and restored, would in any way adversely impact the Florida panther or the birds in issue here.
In Dr. Tabb's opinion, it is questionable whether the site comes under the jurisdiction of DER based on the grasses present because he cannot find the water connection to confer jurisdiction. Dr. Tabb has not seen standing water on the site as he has seen on two other sites within the area where DER has granted permits for rock pits. On a site like this, the vegetation changes with the seasons. This site is not now connected to the canal along Alligator Alley by vegetation. There may have been a vegetation connection in the past, but as one goes up toward the site from the canal, the grass changes gradually from low pineland grasses found on higher ground to the lower sawgrasses found on the site in question. In Dr. Tabb's opinion, if Mr. Houle's property is to be considered a wetland, it is a transitional wetland.
Turning to the issue of loss of habitat, if one assumes that portion of the property that will be converted to a lake will be denied to the panther, this is not the case for the deer which, in this area, is considered to be aquatic. Any denial of the lake area would constitute a very small negative impact compared to what is going on in other areas of Collier County. Admitting that there is a requirement to consider the cumulative impact of a project, in Dr. Tabb's opinion, this project would constitute a "may impact" situation. There is no definitive evidence as to what would happen, and he would be more concerned if the area were now a good panther habitat. It is not, however, and in fact it is no more than a habitat for the grasses which grow there. As to the wetlands issue, the only sign of exotic plant invasion is in the disturbed area around the canal which was installed approximately 18 years ago. The absence of these exotic species is, in Dr. Tabb's opinion, a clear indication that there is no flowing or standing water since the site is too dry for the germination of the seeds.
There will be some removal of the biomass by the excavation of the lake. This biomass, consisting of grass primarily, is consumed by fire every year or so and insects eat it as well. Admittedly, some of the biomass is being eaten by animals of some nature and that which is converted to a lake will be removed. There is a trade-off, however.
Dr. Martin Roessler, a marine biologist, prepared a report, on the water quality of the adjacent 8 Mile Canal, and other water bodies in the area. In preparation of his report, he took water samples in the areas in question, read literature on the water quality in the area, and looked at water quality data provided by U.S. government agencies and private companies.
On the several visits he made to the site, he has not seen any surface water. The first time he could get water only in the adjacent canal, and he also got some water from the land borings done by Dr. Missimer on the site.
Dr. Roessler is familiar with State standards for water quality and, in his opinion, the turbidity standards would not be disturbed because there was no water on the ground to be sheet flow. All water was at least three feet underground and, in addition, Petitioner has agreed to properly sod or otherwise treat the berms he will build to prevent erosion and any resultant turbidity either off-site or in the 8 Mile Canal. Dr. Roessler also does not believe the project would violate the oil and grease standards. There is nothing inherent in the mining process to bring into play oils and greases except for the possible problem in refueling and maintenance operations. In that regard, Petitioner has shown how he will provide against that by placing a membrane to prevent any oil, grease or other contaminant from getting into the ground. This area does not contain the organic mulch which produces natural oils and greases. The water near the surface of the lake will contain sufficient dissolved oxygen to meet State standards without problem. In the summer months when the dissolved oxygen count is low, generally, the lake bottom water may not meet State standards, but that happens quite frequently, naturally, across the entire area. Dr. Roessler believes that the dissolved oxygen requirements of 2.5 at the surface and .5 at the bottom will most likely be met in the lake created by this project. Concerning the biochemical oxygen demand (BOD), he concludes the operation in the quarry will not artificially decrease the available oxygen below the required amount. The BOD demand in this area would not be threatened by the lake.
As to the iron standard and other toxic substances, Dr. Roessler does not believe that the project will create a violation of the standard nor will any runoff increase dissolved iron in adjacent waters. Hydrogen sulfide and pharasulfide standards will similarly not be violated. Sulfides are found only in trace amounts, if at all, in natural waters. In deep limestone lakes the chemical structure is not conducive to the formation of the acidic compounds. In short, Dr. Roessler believes the water in the mine would be very similar to that found in other rock quarries in the area. These lakes are a dominant
portion of the recreational fresh water fishing availability. This instant lake also will, in time, upon development of the food chain for the fish, become an equivalent fishing habitat.
Dr. Roessler concurs with Dr. Tabb regarding the flora on the site, which he observed himself. This site is 15 to 18 miles from marine or estuarian waters and to reach them one would have to go down a series of canals and past a saline dam to the coast. Any runoff from the site in question would have, if any, a minuscule effect on marine waters.
This site was originally a wet prairie which was drained by the Golden Gate Canal System. As such it is a relatively poor habitat for life forms generally found in cypress wetlands. Creation of this lake will, in the opinion of Dr. Roessler, enhance the game, fish, and recreational activity of the area. It would be a benefit to the animal population to have a water source for drinking during drought. There would be no adverse effect on public health, safety or welfare.
Turning to the major issue of water, Dr. Thomas Missimer, a hydrogeologist specializing in ground water, visited the site, examining the canal on the east side, and the soils and rocks exposed. He took soil borings and examined the site hydrology to see what fluctuations occurred in the water
levels due to rainfall. Mr. Missimer, took numerous readings from September 18 through November 5, 1987 during a period of wet weather including a tropical storm. He carefully compared the site geology to other sites he had studied and compared the flow of water through the soil. He compiled existing information on chemistry in the streams in the area to see what the natural conditions were. He looked at other man-made lakes in the area which were previously borrow pits.
As a result of his studies, he concluded that the groundwater level throughout the entire period never got higher than three feet below the land's surface and often was five feet below. During the previous July through September, 34 inches of rain fell in the area which was, in his opinion, average to above average. There is some evidence, however, to indicate that rainfall in the area was approximately 33 percent below average during the period. Nonetheless, Mr. Missimer took a measurement the day after a tropical storm had deposited three inches of water on the land. The water level at that time was still three feet below land level, and there was no standing water. Both the three foot and the five foot level are well below the top of the berm sloped at 10:1 as is proposed in the restoration plan submitted by Dr. Tabb.
This site has, from a hydrological standpoint, been greatly affected by the installation, of the 8 Mile Canal and the canal system to the north. As, a result of this activity, standing water has not existed for many, years since the dredging of those canals.
If de-watering is a necessary portion of the mining plan, any waters removed thereby would be retained in the impoundment area described by Mr. Brundage and switched back and forth. As proposed, the plan can completely avoid any impact to off-site property by water runoff. Construction of the pit and the lowering of the water level thereby will not have a major impact on the groundwater in the surrounding areas. Any effect would taper off as the distance increased from the site and would be of little significance.
This proposal would also have little, if any, impact on groundwater quality. In Mr. Missimer's opinion, water quality is currently good and will stay good. This type of rock mine is very common in the area incident to construction. Some have been used as a source of potable water by The City of Naples; by Deltona Utility Company for Marco Island; and the south area of the County. These resources are still being used. There is little difference between those currently being used as potable water sources and the proposed lake here.
Mr. Missimer also indicates the project will have little impact on the sheet flow of water. Sheet flow no longer exists here because of the canals and roads already existing. If there were a sheet flow created by a very heavy rain, this pit would have no impact on it.
The water level in the lake will be approximately the same as exists in the ground currently and in the 8 Mile Canal. There should be no shoaling in the canal due to the project, and the presently existing spoil bank on the west side of the canal already prevents flow into the, canal from this land.
If this pit is properly constituted and maintained, and if proper mining procedures are followed there should be no effect on the 8 Mile Canal to the east or the Alligator Alley Canal to the south. There is no surface water connection currently existing between this site and either canal.
As to the issue of dissolved oxygen, the currently existing groundwater on the site and in the surrounding area has little or no dissolved oxygen in it. Water coming into the lake will be groundwater low in dissolved oxygen, which is identical to the water which currently goes into the canal system. The canal gets very little oxygen from the wind because it is so narrow. The lakes to be constructed, on the other hand, will get a large amount of oxygen from the 56 acres of water exposed to the open air. Consequently, construction of the lakes would increase the dissolved oxygen content of the water in the area, at least in the lakes, down to a level of several feet. This is a positive factor.
Mr. Missimer recognizes, however, that during the dry seasons, when the lake is fed solely by groundwater generally low in dissolved oxygen, the lake water which has been converted to surface water may fail to meet the Department's surface water standards for dissolved oxygen. Warmer weather generally results in lower dissolved oxygen readings and, admittedly, Respondent's readings were taken in December when the dissolved oxygen levels are higher. As a result, the comparative samples which were taken in December are not necessarily indicative of what will be the situation in the lake, year- round.
Respondent's witnesses present a more dismal picture of the effect of Petitioner's proposed project. Mr. Bickner, an Environmental Supervisor with DER's Bureau of Permits and himself an expert in water quality, zoology, and ecosystem biology, first became involved with this project while the permit request was being processed in late 1986. This application was a standard form project because of the quantity of material to be excavated. As a part of his processing, Mr. Bickner requested evaluations of the project from other agencies and divisions within DER and, on the basis of his personal evaluation and the recommendations he received, concluded that the application was not permittable. He recommended it be denied.
Mr. Bickner considered Petitioner's application under the provisions of Chapter 403.918, Florida Statutes, which requires a two step evaluation. In the first step, the project must be determined to meet water quality standards. If it does, as a second stage, the project must be determined not to be contrary to the public interest.
The major water quality standard in issue here was that of dissolved oxygen along with that concerning BOD and other deleterious substances. The water body involved was classified as a Class III Water under the provisions of Rule 17-3.121, Florida Administrative Code, since it was designed to be a recreational, fish and wildlife habitat. The standards contained in the statute and the rule relate to surface water as opposed to groundwater and, as to the public interest question, Chapter 403 provides a list of seven factors which must be evaluated. In this determination the agency has wide latitude and no one factor is controlling. In evaluation, agency personnel try to look at the project overall.
Specifically, the project cannot cause or contribute to an existing water quality violation. In evaluation, agency personnel do not look at the project by itself. They must keep in mind that other projects exist or are proposed for the area. This is known as the cumulative impact of the project which is provided for in Section 403.919, Florida Statutes.
As to the variance requested, this is also provided for by statute. The criteria require that the petition be based on some specific ground. In the
instant case, the ground utilized by Petitioner was that there was no alternative to the dissolved oxygen level proposed. Granting of a variance is totally within the discretion of the Department even if Petitioner can show grounds therefor.
Mr. Bickner was at the site only once. He approached from the south. At the low end of the approach was a mixture of wetlands and upland vegetation, but as he got toward the site the upland species dropped off and only the wetland species only remained. These were primarily sawgrass, cattails, and the like. He was satisfied that there was no obvious break in jurisdiction, and the testimony of Mr. Beever confirmed that jurisdiction over the site was gained through the wetlands character of the property from the site down to the Alligator Alley Canal, which is considered a water of the state.
The site consists primarily of sawgrass and muhli grass with minor amounts of other grasses. The site seems to rise toward the 8 Mile Canal where there is an invasion of Brazilian peppers and other exotic species. Mr. Bickner was looking for upland species and found only one specimen of one species, a few of another, and no invasion of slash pine on the site at all. As a result, he concluded that the site was not an upland site.
There was no standing water on the site at the time Mr. Bickner visited it, but the soil was wet to the surface. In addition, there was a large number of recently dead shells in low spots which had held water.
There were some tracks of a large animal and a large number of smaller animal tracks and scats (scats are animal droppings). He also saw some birds which were too far away to identify and observed what he thought were crayfish tunnels near the cypress trees. Mr. Bickner found evidence of dried periphyton widely scattered over the site. Periphyton, an algae which attaches itself to other plants and which in times of inundation, forms sheets across the water connecting one plant to another, is a sign of previous inundation. The other plants on the site were not showing water deprivation stress, and there was no evidence of upland species invasion. All of this leads Mr. Bickner to conclude that the area has plenty of water and this opinion was enhanced by the lushness of the plants' growth. This, along with the high diversity of plant life, indicated to him a healthy ecosystem.
To Mr. Bikner, the fact that the area was not currently inundated is not significant. In this particular area there are wet and dry seasons and, even in the dry season such as existed at the time of his visit, the soil was wet. The signs he saw indicated to him there has to be standing water on the site at some time. His visit was in January, which is well within the dry season.
As to water quality, Mr. Bickner does not believe that the water quality standards will not be violated. In fact, by the nature of the project, Petitioner has, in Mr. Bickner's opinion, assured that it will be violated. A
20 foot deep pit must, in his opinion, result in low levels of dissolved oxygen below standards. Any water below seven foot in depth has little dissolved oxygen. Most dissolved oxygen is in the surface water, and there is little exchange between deep and surface waters. As a result, he concludes that the groundwater has low dissolved oxygen, a fact confirmed by Mr. Missimer. Dissolved oxygen is the only source of oxygen for fish and aquatic animals. Without dissolved oxygen, the fish die. There are currently no fish on the property.
Mr. Bickner was also concerned with the biochemical oxygen demand which would further reduce the oxygen levels in the water. He was further concerned with the hydrogen sulfide levels coming from deterioration of plant material in the bottom of the pit, and iron which he found to be already in the groundwater.
Mr. Bickner contends that during construction of the pit petro- chemicals will be introduced into the water, and that during the construction period the on-site water will have increased turbidity which will most likely be transmitted off-site as the pit is de-watered. There are management procedures which can reduce the risk, but none can avoid it entirely.
Mr. Bickner is satisfied that the water quality standards will not be met. It is so found.
Mr. Bickner also evaluated the property from the public interest standpoint, and in that regard he is satisfied there is a substantial potential for damage to adjacent properties by de-watering. Based on his experience and observation of other projects, he is satisfied there is no way to keep people employed on the site from using adjacent property for parking and vehicle maintenance.
The witness believes that the 56 acres of habitat removed by the lake, and the remaining acres, which will be replanted, will be permanently impacted. While he admits that the property as it currently exists, may not be a prime habitat for the panther, there is some evidence which indicates panthers do cross it.
He is concerned that the applicants submission here does not sufficiently answer all the questions as to impact on the public interest. The mechanics of the maintenance yard, soil storage and other potential areas of trauma are not explained satisfactorily, and Mr. Bickner does not see how all that is proposed can fit on the site. As a result, in his opinion, there must be some off-site impact.
As to cumulative impact, since the valuable rock does not lie only under Petitioner's property, owners of the surrounding property may want to mine their properties as Petitioner proposes to do. If that happens, Mr. Bickner cannot explain how the Department can deny these subsequent applications. If the current application is permitted, taken together with the others, there would be a serious effect on the panther population. This opinion is not supported by evidence, however.
If the public interest test is the only basis for disqualification of the project, (here the water quality test is also not met) a permit can still be granted if the applicant agrees to take appropriate mitigation steps at the site. Mr. Bickner is of the opinion that the applicant's mitigation plan to create the 100 foot wide shelf around the lake is not the same type of system which currently exists, will not fulfill the same function as the present property, and is not sufficiently large to replace what is being lost.
One basis for granting the variance suggested by the Petitioner was the public interest, (the material was to be used for a public road), and the other was that there was no alternative way to get the material. While it is possible the rock would be used for public road, Mr. Bickner was concerned no assurances were given by the Petitioner that it would be. No contract has been signed yet, and Mr. Bickner is not satisfied that the letter from the Department
of Transportation, indicating the rock there would suit its purpose, is sufficient indication that a contract would be signed. There is a possibility of making the pit shallower, which would permit the dissolved oxygen content of the lake water to meet state standards, but even if that problem were solved, Mr. Bickner is not satisfied that Petitioner has met the public interest test.
Respondent has granted three permits and a variance to the Department of Transportation to build a portion of I-75 across Alligator Alley in Collier County. These permits are for the dredging of canals parallel to the roadway and to develop a borrow lake of 73.1 acres to be excavated to a depth of from 6 to 9.7 feet. The variance in question applies to all three projects and relates to the dissolved oxygen level. The DOT variance was applied for on the basis that no practical means for avoidance of the pollution existed. The Department of Transportation did not request a variance for BOD or for toxic and deleterious substances or iron. Mr. Bickner, admitted that these permitted projects would possibly have the same problem of oils and greases as he foresees with Petitioner's project. Nonetheless, he concludes that Petitioner's project should not be permitted, even though the Alligator Alley canals are already below standards, because to do so would contribute to a currently existing violation.
Mr. James Beever, an Environmental Specialist with the Department of, Environmental Regulation, visited the site on several occasions, both on the ground and from the air. He observed much of the same flora and fauna observed by the other visitors who testified in this case and took color photographs of the area which portray the character of the property. All of the plants he discovered on the site are on the DER jurisdictional list and, on at least one occasion, from the air, he saw standing water on the site. In his opinion, the property is a fresh water wet prairie system which is admittedly drier than it should be.
The plants he saw on the site indicate the jurisdiction of DER if there is a connection to other waters of the state, and in Mr. Beever's opinion, there is connection through the flow of sheet water south from the site to the
I-75 (Alligator Alley) canal; then, east to the 8 Mile Canal; then south to the Fuqua Union Canal which empties southwest to the Gulf of Mexico. In his opinion, therefore, this is definitely jurisdictional land, and it is so found.
The site supports an underground system of roots as well as the upper portion of the, plants existing thereon. He observed periphyton and many other animal tracks and scats. He also saw signs of regular inundation such as numerous snail shells, and he is satisfied there is no indication of a change in the area from the wetlands to an upland area. Admittedly, the area has been dry for a while. Even after Hurricane Floyd in 1987, there was no standing water.
The site is, in his opinion, definitely productive, however. The vegetation existing thereon stabilizes the soil and provides food for snails, insects and crayfish which are on the bottom of the foodchain for other life forms on the property. The grasses provide a habitat for animals such as cotton rats, roosts for birds, pollen for insects, all which, themselves, become food for the larger animals. This wetland is a part of a large wetland prairie system and part of the Fuqua Union drainage basin, and acts as a filter for the water system for the area.
According to Mr. Beever, most borrow pits like this are located on uplands which then provide rain water lakes. The instant pit, however, is in a wetlands area and if built, he believes, will engender violations during the
mining operation. Groundwater coming in will contain iron and hydrogen sulfide which will combine with the dissolved oxygen in the water and further deplete the already low oxygen levels. All of this will constitute a violation of the rules regarding waters of the state since the waters within the pit would fall within that category. Mr. Beever is also concerned with the `bridge over the 8 Mile Canal and the turbidity connected with its construction and removal. In substance, Mr. Beever is convinced that construction of the project will create violations of the water quality standards for the area.
As to the public interest, the wetlands character of the site will be completely lost. The vegetation will be removed, and the animals utilizing it will either leave or be destroyed. After, construction, some natural healing will occur, but a long-term maintenance program will be required to provide even different functions for the land than those which currently exist.
In that regard, Mr. Beever is convinced that the applicant's proposed restoration plan is not acceptable. It will not replace the lost functions of the site; it will replace the species removed with a different ecosystem; it will provide a habitat for different species of animals and birds; it will adversely affect the shoaling and erosion in the lake itself (this is found to be without merit); it will have some adverse effect on the property of others; and will have an adverse cumulative impact on the area. The habitat will not be used any more by endangered species such as the wood stork and the panther.
Even assuming, arguendo, the plans were suitable, in Mr. Beever's opinion, the project would not work here because of the lack of information on what the actual water level of the lake will be. The plant species proposed may not remain because of possible changes in water level in the lake. In addition, the marl berms will dry out over the three years of their life while the pit is being worked, and form a location for a lot of invasive upland plants.
Much of Mr. Beever's concern is shared by Mr. Barnett, of the Game and Fresh Water Fish Commission, who indicated that birds now frequently use the area for nesting and feeding because of its wetlands character. Endangered species such as the Florida panther cross it from time to time as does the Florida black bear. Human encroachment reduces the panther's territory and reduces the area for forage of deer, which are the principal food of the panther. The bigger issue, however, is the cumulative impact. The 80 acres is not so important by itself, but to permit its removal would set a precedent for future encroachment by others.
Mr. Barnett's experience is that restoration plans are quite often not successful. Even the successful ones, however, replace the removed system with a different system, and the species which now use the property would find it much less desirable as changed. Specifically, the bear, the deer, and the panther would find it unusable as proposed. At the present time, the deer spend their days in the pines forest to the north of the property, coming out onto the area, in question only at night to feed. It is during the night that the panther stalks.
As presently constituted, this property is of no benefit to the wood stork or the red cockaded woodpecker. The Cape Sable sparrow could use it but does not.
The development of Golden Gate Estates to the north and east and south of the property has a two pronged effect on the area in question. The southern portion of Golden Gate Estates has been abandoned, but the central and northern portions will be developed. On the one hand, it is likely that the increased
population to the north and east will make the Petitioner's property less desirable and make access to it more difficult for the wildlife currently utilizing it. On the other hand, removal of the northern and central portions of Golden Gate from usable area for the panther and other species make it more important that Petitioner's area, which Barnett claims is not likely to be developed, remain as an animal habitat to offset the encroachment of the development area. There is no evidence to support this prediction of non- development, however. History tends to indicate otherwise.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has juris-diction over the subject matter of and the parties to these proceedings pursuant to Section 120.57(1), Florida Statutes.
Under the provisions of Section 403.913(1), Florida Statutes, the Department of Environmental Regulation is given authority to permit dredging and filling in the surface waters of the state. Subsection 403.913 provides that the landward extent of surface waters shall be determined as provided in Section 403.817, which recognizes that ecological factors which represent the fluctuations in water levels also make it difficult to determine the landward extent of the water. Therefore, the Department is authorized to establish, by rule, the method for determining the landward extent of the waters of the state for regulatory purposes. The rule adopted by the Department for this purpose is found at Chapter 17-4.022, F.A.C.
If Petitioner can establish that the location in question is not included within the waters of the state, he may dredge without permit since the Department would not have jurisdiction over the project and the area. On the other hand, if the evidence establishes that the area is properly classified as a water of the state, then DER has jurisdiction and in such cases, the criteria for permitting dredge and fill activities are recited in Section 403.918, Florida Statutes.
If the applicant cannot meet the criteria set forth in the above-cited provision, the Department is obliged to consider proposals by the applicant to mitigate adverse effects caused by the project and/or cause net improvement of the water quality where applicable.
As the Petitioner, Mr. Houle has the burden of establishing his entitlement to the dredge and fill permit for which he has applied by a preponderance of the evidence. The evidence presented here by both sides on the issue of jurisdiction, other than showing no direct connection to waters of the state, indicates the site is populated primarily by vegetation species contained on the Department's list of plants indicating wetlands. Petitioner's evidence does not overcome this indication and since the proposed excavation would take place within the landward extent of waters of the state, the site is subject to the dredge and fill regulatory authority of the Department.
Having concluded that DER has dredge and fill permitting jurisdiction, it then becomes necessary to determine if the proposed project falls within the Department's criteria for granting permits; here, specifically Sections 403.918(1) and (2). The former requires an applicant to provide reasonable assurance that water quality standards will not be violated, and the latter requires the applicant to provide reasonable assurance that the project is not contrary to the public interest. The criteria referred to above are as follows:
In determining whether a project is not contrary to the public interest, or is clearly in the public interest, the Department shall consider and balance the following criteria:
Whether the project will adversely affect the public health, safety, or welfare, or the property of others;
Whether the project will adversely affect the conservation of fish and wildlife, including endangered or threatened species, or their habitats;
Whether the project will adversely affect navigation or the flow of water or cause harmful erosion or shoaling;
Whether the project will adversely affect the fishing or recreational values or marine productivity ink the vicinity of the project;
Whether the project will be of a temporary or permanent nature;
Whether the project will adversely affect or will enhance significant historical and archaeological resources...; and
The current condition and relative value of functions being performed by areas affected by the proposed activity.
The Florida Legislature has mandated that DER, in deciding whether to grant or deny a permit in these areas shall assess the impact on the waters not only of the project under review, but also those existing projects under construction for which permits have been sought and those under review, approved or vested which may reasonably be expected to be located within the Department's jurisdictional areas, (Section 403.919). The Department, by rule, requires that permits be approved or denied on a uniform and consistent basis, (Rule 17- 103.160, F.A.C.).
With regard, then, to the requirement that the project not violate water quality standards, Petitioner admits that as to dissolved oxygen, the water quality standards of the Department will not be met and there is substantial risk that toxic substances will, at least on a temporary basis, be introduced as a result of vehicle maintenance and storage on the site. Petitioner's promises of palliative, or preventive measures, while no doubt sincere, are, nonetheless, not likely to be effective. In the long term, however, Petitioner has shown the project will have little additional effect upon, water quality on the site or on the surrounding waters, since the evidence indicates the surrounding water is naturally of low quality, and the low dissolved oxygen level is, to a great extent, caused by the infusion of this low quality water from off site. The granting of the variance requested by Petitioner, under the circumstances here, would not be contra to the public interest.
As to the criteria outlined in Section 403.918, referenced above, which also relate to the public interest, Petitioner proposes to convert 56 of
80 acres of wetlands from marsh to lake, leaving approximately 24 acres of the original parcel in its virgin state. This, by itself, is not necessarily
significant in light of the fact that the remaining acreage in the area, to the west and the south, is not presently scheduled for development. The Golden Gate Subdivision has been laid out and roads cut to the north, and east of this area. When combined with the potential effect of further development in the area likely if this project is permitted, the cumulative impact will undoubtedly be great. Nonetheless, there is little likelihood that this project would adversely affect the public health, safety, or welfare or the property of others.
It would, however, adversely affect the conservation of wildlife, including birds and small animals. DER has contended that the property, allegedly a habitat of the Florida panther and brown bear, would be rendered useless to these animals currently using the site. This is not altogether accurate. While some species of birds would be deprived of habitat, and while deer, whose presence is noted from droppings if not from actual sighting, might find the area unusable, they would still drink from the lake, and the panther and bear, again, not seen on the property directly, would, perforce, have to detour around the lake to continue their passage over the area in search of food. Even DER's experts were of the opinion that these endangered species use the property not as a habitat but as a path of traverse. Consequently, the impact, if any, would be minimal.
No adverse effect will occur to navigation by the project nor will harmful erosion or shoaling, and it is unlikely that any flow of water across the property, seasonal in nature as it is, would be stopped. It might be diverted around the project berms, at worst.
Fishing and marine productivity in the area is currently non-existent and little recreational use is being made of the property now. Creation of the lake/borrow pit, which presumably will support a fish population, will provide a resource for, more fishing and recreational use to be made of the property than presently exists.
The project, when completed, is anticipated to be permanent and the site will not be restored to its original state. By the same token, no significant historical or archeological resources exist on the property to be affected.
Finally, the property is currently non-productive except as a small part of a larger wetlands area, the function of which in that state, has already been seriously affected. The proposed project would, by itself, have little further impact on the area outside the immediate site of the work. The loss of the property as an animal habitat is minimal.
It being shown that similar variances to water quality standards have been granted in the area to the Department of Transportation; that little significant impact of an adverse nature would be generated by the approval of this project; that even the cumulative impact of like projects in the area would not add greatly to the existing impact of already authorized improvements in the general area; the proposals would not be contra to the public interest if approved.
Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore,
RECOMMENDED that Petitioner be issued a dredge and fill permit as requested and a variance to the state water quality standards as identified in the request.
RECOMMENDED this 29th day of April, 1988, in Tallahassee, Florida.
ARNOLD H. POLLOCK
Hearing Officer
Division of Administrative Hearings The Oakland Building
2009 Apalachee Parkway
Tallahassee, Florida 32399-1550
(904) 488-9675
Filed with the Clerk of the Division of Administrative Hearings this 29th day of April, 1987.
APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-1469 AND 87-4404
The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties to this case.
By the Petitioner
1 - 2. | Accepted. | |||||
3 - 6. | Accepted | and | incorporated | herein. | ||
7. | Accepted. | |||||
8. | Accepted. | |||||
9 - 14. | Accepted | and | incorporated | herein. | ||
15. | Accepted. | |||||
16 - 17. | Accepted | and | incorporated | herein. | ||
18 - 19. | Accepted | and | incorporated | herein. | ||
20. | Accepted. | |||||
21 - 23. | Accepted | and | incorporated | herein. | ||
24. | Not a Finding of Fact. | |||||
25 | - | 26. | Accepted and incorporated herein. | |||
27 | - | 28. | Accepted and incorporated herein, except for finding | |||
it is likely that more wildlife will use the site after | ||||||
construction. Rejected as speculation. | ||||||
29 | - | 30. | Accepted | and | incorporated | herein. |
31 | - | 33. | Accepted | and | incorporated | herein. |
34. | Accepted | and | incorporated | herein. | ||
35. | Accepted | and | incorporated | herein. | ||
36 | - | 38. | Accepted | and | incorporated | herein. |
39. | Accepted | and | incorporated | herein. | ||
40. | Accepted | and | incorporated | herein. | ||
41. | Accepted | and | incorporated | herein. | ||
42. | Accepted. | |||||
43 | - | 44. | Rejected | as contra to the | evidence. | |
Accepted.
Accepted and incorporated herein.
For the Respondent
1 - 3. Accepted and incorporated herein.
4 - 8. Accepted and incorporated herein.
9. Accepted and incorporated herein.
10 - 17. Accepted and incorporated herein.
18 - 20. Accepted and incorporated herein.
21. Accepted and incorporated-herein.
22 - 25. Accepted and incorporated herein.
26 - 33. Accepted and incorporated herein.
34 - 35. Accepted and incorporated herein.
36. Rejected as contra to evidence presented.
37 - 40. Accepted and incorporated herein.
41. Accepted and incorporated herein.
42 - 43. Rejected.
44. Accepted and incorporated herein.
45 - 47. Accepted and incorporated herein.
48 - 60. Accepted and incorporated herein.
Rejected.
Accepted in part - (temporary).
Accepted.
Accepted and incorporated herein.
Accepted and incorporated herein.
Unproven.
Accepted.
Accepted and incorporated herein.
Accepted.
Accepted.
Accepted.
Accepted.
Accepted and incorporated herein.
Accepted.
COPIES FURNISHED:
Robert Routa, Esquire ROBERTS, EGAN & ROUTA, P.A.
217 South Adams Street Post Office Box 1386 Tallahassee, Florida 32302
Richard Grosso, Esquire Department of Environmental
Regulation
2600 Blair Stone Road Tallahassee, Florida 32399-2400
Dale Twachtmann, Secretary Department of Environmental
Regulation
2600 Blair Stone Road Tallahassee, Florida 32399-2400
| Issue Date | Proceedings |
|---|---|
| Apr. 29, 1988 | Recommended Order (hearing held , 2013). CASE CLOSED. |
| Issue Date | Document | Summary |
|---|---|---|
| Apr. 29, 1988 | Recommended Order | Variance to water quality standards appropriate for short run, and conversion of marsh to lake would not have major impact on wildlife. Not continued to public interest. |
ALDEN PONDS, INC. vs DEPARTMENT OF ENVIRONMENTAL PROTECTION, 87-001469 (1987)
BOCA GRANDE CLUB, INC. vs. DEPARTMENT OF ENVIRONMENTAL REGULATION, 87-001469 (1987)
CITY OF PARKER vs. JOHN E. BRAVO AND DEPARTMENT OF ENVIRONMENTAL REGULATION, 87-001469 (1987)
BAKER CUT POINT COMPANY vs. DEPARTMENT OF ENVIRONMENTAL REGULATION, 87-001469 (1987)
