STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

FLORIDA MINING AND MATERIALS ) CORPORATION, )

)

Petitioner, )

)

vs. ) CASE NO. 81-1961

) DEPARTMENT OF ENVIRONMENTAL ) REGULATION, STATE OF FLORIDA, )

)

Respondent. )

)

RECOMMENDED ORDER

A hearing was held in the above-captioned matter, after due notice, at Miami, Florida on January 14-15, 1982, before Thomas C. Oldham, Hearing Officer.

APPEARANCES

For Petitioner: Ray H. Pearson, Esquire and

Bruce A. Christensen, Esquire FLOYD PEARSON STEWART RICHMAN

GREER & WEIL, P.A.

One Biscayne Tower, 25th floor Miami, Florida 33131

For Respondent: Paul R. Ezatoff, Jr., Esquire

Assistant General Counsel

Department of Environmental Regulation Twin Towers Office Building

2600 Blair Stone Road Tallahassee, Florida 32301

ISSUE PRESENTED

Whether Petitioner's application for a dredge and fill permit under Chapter 403, F.S. and PL 92-500, to conduct rock mining activities in Dade County, Florida should be approved.

At the commencement of the hearing, the parties orally stipulated that the only matters in issue were those relating to biological integrity, lead, oil and grease, and dissolved oxygen, as affecting water quality pursuant to Chapter 17- 3, Florida Administrative Code, and the cumulative impact of this and other like projects in the general area in question. Additionally, Petitioner had amended his petition prior to hearing to allege that Respondent lacked jurisdiction over the proposed excavation activities because the project site is not located in the waters of the State. The jurisdictional question will he determined hereinafter in Conclusions of Law.

At the hearing, Petitioner presented the testimony of five witnesses and submitted ten exhibits. Respondent called four witnesses and submitted six

Rodney Dehan were received in evidence at the request of Petitioner as reflected in the hearing transcript.

considered, and those portions thereof not adopted herein are deemed to be either unnecessary, irrelevant, or unsupported in fact or law.

1. Petitioner Florida Mining and Materials Corporation, Tampa, Florida, a wholly owned subsidiary of Moore-McCormick Corporation, conducts rock mining

   
   

   566 acres of land in Section 14, Township 55 South, Range 38 East, Dade County, Florida, for rock mining purposes. The tract of land is located about one mile

   
   

   Highway 41). The property is bounded on the east by Levee L31-N and a drainage canal. There are no public or private roads at the present time providing

   
   

2. By application, dated May 19, 1980, which was filed with Respondent Department of Environmental Regulation (DER) on June 16, 1980, Petitioner

   
   

   (Testimony of Coleman, Petitioner's Exhibit 1)

   
   

3. Respondent asked for additional information concerning the proposed

   
   

   To Deny the application on July 21, 1981. The stated grounds for the intended denial were that the proposed project would destroy approximately 566 acres of

   
   

   quality by the assimilation and transformation of nutrients, and that the project would destroy productive biological habitat which depends on and

   
   

   notice further stated that pollutants could be expected to enter waters of the State through the pits which would provide direct openings to the Biscayne

   
   

   create water bodies unable to meet State water quality standards. Finally, the notice stated that the cumulative impact of existing and proposed similar

   
   

   Everglades and the ground waters of the Biscayne aquifer, and that therefore Petitioner had not provided reasonable assurance pursuant to Rule 17-4.07 and

   
   

   not result in violations of water quality standards for surface waters. At the hearing, by stipulation of the parties, Respondent abandoned its concerns as to

   
   

   Respondent's Exhibit 1)

   
   

4. Petitioner plans to dredge approximately 70 percent of the land area

   
   

   by dragline will total approximately 25,427,000 cubic yards. Approximately 353,000 cubic yards of the dredged material will be used as fill for roads,

   
   

   be transported to an on-site processing plant where it will be crushed, sized, washed, and then conveyed to storage piles of various size aggregate. Water and

   containing "face powder" size limestone residue will then be piped back into the lake. Material from the storage piles will be conveyed to a final wash station and sent to storage bins for loading on trucks, or by conveyer belt to an adjacent railroad spur for loading. No chemicals or additives are used in processing the material. Motor vehicles and heavy equipment used in the operation will use diesel fuel or unleaded gas. No oil or grease is introduced in the manufacturing cycle, although such materials will necessarily be used in connection with the operation of vehicles and equipment.

   
   

5. A perimeter buffer zone of 85 feet will separate the pit excavations from adjacent property lines on the north, south and west sides of the site. On the east side, a rail siding will be set back 200 feet and the lakes 400 feet from the Levee L31-N right-of-way. A perimeter berm of undetermined size will encircle the entire site.

   
   

6. A 25 foot wide road from the north of the site to the Tamiami Trail will be constructed on an 80-acre "alley" to permit access to and from the mining area. Maintenance roads will be constructed around the perimeters of the four lakes. An 18 foot wide drainage ditch will be constructed immediately behind the perimeter berm to receive runoff from the adjacent maintenance roads.

   
   

7. Earth berms will encircle all excavated areas to eliminate surface water inflow.

   
   

8. Lake excavation areas will comprise approximately 70 percent, or 394 acres, of the 566 acre site. The remaining land area will be 172 acres. Petitioner will be able to mine approximately 70 percent of the estimated twenty-four million tons of existing rock which underlies the land area. It is estimated that mining operations will take place for approximately fifteen to twenty years to remove the available rock material.

   
   

9. There is a 2 foot layer of topsoil overlying the lime rock which will be stored to return non-excavated areas to their original level when the project is completed. The areas will be revegetated at that time. (Testimony of Coleman, Petitioner's Exhibits 1, 5,6,8)

   
   

10. Although the project area has groundwater levels within one foot of tide land surface for most of an average year, surface water is on the site during a maximum of 36 days a year. Vegetation is present on approximately 55 percent of the property. The dominant species is sawgrass, although several other wetland species such as beakrush, marsh fleabane, spike rush, and maiden cane, are present to a lesser extent. Periphyton algal mats are found throughout the project area. Such mats provide habitat and protection for a variety of organisms and their egg masses. Sawgrass is one of the species listed in Rule 17-4.02(17), Florida Administrative Code which, under Rule 17- 4.28, Florida Administrative Code, is used as a guide in the establishment of the border of certain water bodies listed therein. (Testimony of Lotspeich, Molnar, Gatewood, Kraft, Respondent's Exhibits 4-6)

    
    

11. The following findings address the stipulated issues as to whether Petitioner has given Respondent reasonable assurance that the proposed project will not result in water quality violations with respect to concentrations of lead, oil and grease, dissolved oxygen, and impacts on biological integrity in Class III waters:

    1. Lead--Petitioner will not use materials containing lead in the conduct of its rock mining operations, and therefore no water quality violation

       
       

       active rock mining pits in the general area revealed only negligible amounts of lead. (Testimony of Sullivan, Baljet, Petitioner's Exhibit 10)

       
       

       heavy equipment which require oil and grease incident to its excavation and mining operations. DER Rule 17-3.061(1)(j), Florida Administrative Code (as

       
       

       dissolved or emulsified oils and greases shall not exceed 5.0mg. per liter, nor shall visible oil be present to cause taste, odor, or interfere with the

       
       

       general area show that State standards are being met. It would take over 24,000 pounds of oil and grease to result in a violation of the quality standard on

       
       

       equipment and inspection should prevent other than insignificant discharges of oil and grease. Although oil sheens have been observed on water surfaces of

       
       

       situation would exist as a result of Petitioner's proposed operations. (Testimony of Sullivan, Baljet, Lotspeich, Kraft)

       
       

       waters provides that the concentration of dissolved oxygen shall not be less than 5 mg. per liter. Petitioner's proposed operation will not discharge oxygen

       
       

       dissolved oxygen. Excavation of the proposed lakes will permit interchange from the pits and surrounding groundwater. As groundwater rises to the surface,

       
       

       aeration. Tests of several water filled rock pits in the surrounding area meet state standards as to dissolved oxygen. The storage of excavated muck soil in

       
       

       which could lower the dissolved oxygen concentration, but the perimeter berms surrounding the lakes should prevent other than a minimal amount of such organic

       
       

       powder" size lime rock residue could present a suspended solids and BOD problem over a long term as it eventually forms a layer on the bottom of the lake. Such

       
       

       penetration and re-suspend easily. Although the waters of the rock pits probably will not meet the State standards of 5.0 mg. per liter at various

       
       

       of the groundwater in the area. Deep water bodies provide less water circulation and consequent lowered dissolved oxygen levels than do shallow

       
       

       (Deposition), Petitioner's Exhibit 10)

       
       

       d. Biological Integrity--Rule 17-3.121(7), F.A.C. provides that the

       
       

       reduced to less than 75 percent of established background levels. Sampling equipment to perform this test requires a minimum of seven inches of water for a

       
       

       October, 1981 after a hurricane at which time there was approximately 14 to 16 inches of surface water on the site. The test showed a moderate to slightly low

       
       

       levels and survive during the normally dry periods in pockets of water. They have a high degree of adaptability. Disruption to the regimes will be caused to

       the pit excavations which will divert sheet flow around the site. However, actual effects of the project cannot be determined until tests can be made after construction. However, the ability to perform valid testing on a sawgrass prairie where surface water is present only after rainfall over a total of 36 days a year is remote. Such tests are designed for lakes and streams. In the opinion of DER's chief biologist as to the use of a sampler, ". . .it is rather ridiculous to put it on a sawgrass prairie". (Testimony of Sullivan, Pruitt, Ross (Deposition))

       
       

12. DER asserted jurisdiction over Petitioner's proposed activities based on the fact that there is continuous sawgrass vegetation from the site southwest to the Shark River which begins at Florida Bay some 60 miles away. The Shark River is located in the southwestern portion of the State and sloughs from thee river proceed in undefined patterns to the northwest. Sheet flow from the sawgrass prairie area travels slowly in a southwesterly direction where it is drained by the Shark River system. However, only approximately 10 percent of surface water flow over Petitioner's site would reach the defined river which ends approximately 15 to 20 miles from the coast. No exchange of water from the Shark River takes place at Petitioner's site, nor does any tidal flow from Florida Bay reach that area. The sawgrass and other wetland species survive due to the high groundwater level in the area which generally results in damp soils.

    
    

13. DER does not seek to assert jurisdiction arising from the project's proximity to the L31-N canal due to the existence of the adjacent dike which would prevent any discharge from Petitioner's site. However, it does consider that the Petitioner's land is within the landward extent of waters of the State in that it is a part of the water body either of the Shark River or of Florida Bay. (Testimony of Lotspeich, Molner, Gatewood, Kraft, Respondent's Exhibit 1)

    
    

14. Although some 33 applications to conduct rock mining activities in Dade County have been received by DER over the years, the agency did not assert jurisdiction over those located east of the L31-N canal due to the fact that the canal altered the natural hydrological pattern of the area, and wetland species of vegetation no longer were dominant in the area. There is no other pending application for rock mining activities other than that of Petitioner to the west of the canal at the present time. (Testimony of Lotspeich, Kraft, Respondent's Exhibits 2-3)

    
    

15. An additional ground stated by DER for proposed denial of the project is that approval of Petitioner's permit would set a precedent for future similar operations and that the cumulative impact of such projects would result in a decline of water quality of the surface waters of the Everglades. However, no applications for similar permits in the area near Petitioner's site are pending, nor have any been granted west of the L31-N canal to date. (Testimony of Lotspeich, Kraft, Respondent's Exhibit 2) It would therefore be speculative to base such a finding upon concerns about future possible applications which might be filed due to the presence of limestone rock in sufficient quantities for profitable operations.

    
    

16. In 1976, Petitioner's request for a variance from Dade County zoning ordinances to permit mining on its site was denied by the county commission. Petitioner appealed the denial to the Dade County Circuit Court, which found that the county had acted in an arbitrary manner by permitting essentially identical mining activities on nearby tracts of land, and ordered the county to grant necessary permits for mining activities upon proper application by Petitioner. This decision was appealed to the Third District Court of Appeal which affirmed the lower court in Case No. 77-1223 on October 17, 1978.

    Thereafter, by resolution, dated July 19, 1979, the Dade County Board of County

    
    

    These conditions require adequate turbidity controls during construction, a temporary perimeter berm to permit silt runoff, stockpiling of excavated topsoil

    
    

    of the property to pre-excavation condition after completion of operations, construction of adequate culverts to maintain overland sheet flow, and other

    
    

    the conditions require the posting of a surety bond to ensure compliance with county requirements, and further purport to limit transfer of title to the

    
    

    the conclusion of mining operations, utilize the property for passive recreational purposes, or as a wildlife refuge. (Testimony of Coleman,

    
    

    CONCLUSIONS OF LAW

    
    

17. Respondent Department of Environmental Regulation bases its permitting

    
    

    which concerns dredging or filling activities. Those portions of the rule that are pertinent to Petitioner's jurisdictional claim are as follows:

    
    

    Permits, Certifications.

    (2) Pursuant to Sections. . .403.087 F.S.,

    
    

    to be conducted in. . .the following categories of waters of the state to their

    
    

    1. , F.A.C. require permit from the

       
       

       1. rivers and natural tributaries thereto;

    (c) bays. . .;

    
    

    intermittant [sic] natural water courses which act as tributaries only following the

    
    

    not contain contigous [sic] areas of standing water.

    
    

    border of certain water bodies listed in this section may be difficult to establish because of seasonal fluctuations in water levels and

    
    

    terrain. The intent of the vegetation indices in Section 17-4.02(17), F.A.C., is to guide in

    
    

    bodies listed in this section. It is the intent of this rule to include in the

    
    

    are customarily submerged and exchange waters with a recognizable water body (i.e., areas

    
    

    state as defined in Section 17-4.02(17). Isolated areas which infrequently exchange

    
    

    only insignificant benefit to the water

    quality of a water body are intended to be designated as uplands. The vegetation indices in Section 17-4.02(17), F.A.C., presumed to accurately delineate the landward extent of such water bodies.

    (3) The applicant for a dredge and/or fill permit or a federal certification for a dredging and/or filling activity shall affirmatively provide reasonable assurance to the department that the short-term and

    long-term effects of the activity will not result in violations of the water quality criteria, standards, requirements and provisions of Chapter 17-3, Florida Administrative Code. The Department shall, upon denying any application, furnish the applicant an official statement specifying with particularity the reasons for denial, including a precise statement of those violations of water quality criteria, standards, requirements and provisions it expects to be caused by such activity and the manner in which such effects are expected to be caused. (Emphasis added)

    
    

18. Section 403.817, Florida Statutes, expresses the legislative intent in determining the natural landward extent of waters for regulatory purposes, and states pertinently as follows:

    
    

    403.817 Legislative intent; determination of the natural landward extent of waters for regulatory purposes.--

    1. It is recognized that the levels of the waters of the state naturally rise and fall, depending upon tides and other hydrological, metorological, and geological circumstances and features. The natural rise and fall of the waters is essential to good water quality, but often makes it difficult to determine the natural landward extent of the waters. . .

    2. In order to accomplish the legislative intent expressed in subsection (1), the department is authorized to establish by rule, pursuant to chapter 120, the method for determining the landward extent of the waters of the state for regulatory purposes. Such extent shall be defined by species of plants or soils which are characteristic of those areas subject to regular and periodic inundation by the waters of the state. The application of plant indicators to any areas shall be by dominant species. . .

    (Emphasis added)

    
    

19. Respondent's Rule 17-4.02(17), Florida Administrative Code, implements Section 403.817 and defines "landward extent of the waters of the state" as that

portion of a surface water body indicated by the presence of one or a combination of specified dominant species, including sawgrass.

authority leads to the conclusion that Petitioner's site is not within the permitting jurisdiction of Respondent Department of Environmental Regulation.

question is a part of the Shark River. The river's defined course ends approximately 40 miles to the southwest of Petitioner's property. It is

the site of the proposed project, and it is for this reason that Respondent claims that the entire area constitutes part of the river for jurisdictional

Everglades area within its ambit. Absent specific statutory or regulatory authority clearly spelling out such far reaching jurisdictional limits,

1. The facts show that surface water is present on the site only approximately ten percent of the year, and therefore, the area is not

   
   

   water body", i.e., the Shark River. Accordingly, the presumption in Rule 17- 4.28(2) that the presence of a specified dominant species--in this case,

   
   

   has been Successfully rebutted. The rule specifies that even natural water courses do not qualify as tributaries to a river when they become such only

   
   

   contiguous areas of standing water. It is determined that Petitioner's site is an "isolated area" which cannot be found to provide a measurable benefit to the

   
   

   that ninety percent of any surface flow would never reach the river or any contiguous area thereto.

   
   

   and "reasonable assurance" that its rock mining operations would not violate State water quality standards. The extensive conditions attached to the Dade

   
   

   sufficient to allay any fears concerning water pollution. The specified requirements concerning turbidity controls during construction, construction and

   
   

   banks along the proposed lakes, and restoration measures after mining has ceased insure that water quality standards will be preserved. There is no evidence

   
   

   nor would the dissolved oxygen concentrations be unduly impaired. If permitting jurisdiction were to be found, an additional condition to any permit requiring

   sheens on the constructed lakes, and to provide additional screening of limestone residue

   
   

   weight of the evidence establishes that rock mining operations produce little

   
   

   stated by Petitioner's expert witnesses, the creation of lakes can produce favorable environmental conditions and a new habitation for fish and wildlife.

   
   

   east Everglades may lead to cumulative and thus eventually significant impact upon the area are understandable, but at this time are too speculative to be

   RECOMMENDATION

   
   

   That this proceeding be dismissed for lack of jurisdiction by Respondent Department of Environmental Regulation under Chapter 403, Florida Statutes.

   
   

   DONE and ENTERED this 12 day of April, 1982, in Tallahassee, Florida.

   
   

   THOMAS C. OLDHAM

   Division of Administrative Hearings The Oakland Building

   2009 Apalachee Parkway

   Tallahassee, Florida 32301

   (904) 488-9675

   
   

   Filed with the Clerk of the Division of Administrative Hearings this 12 day of April, 1982.

   
   

   COPIES FURNISHED:

   
   

   Ray H. Pearson, Esquire and Bruce A. Christensen, Esquire FLOYD, PEARSON, STEWART, RICHMAN

   GREER & WEIL, P.A.

   One Biscayne Tower - 25th floor Miami, Florida 33131

   
   

   Paul R. Ezatoff, Jr., Esquire Assistant General Counsel

   Department of Environmental Regulation 2600 Blair Stone Road

   Tallahassee, Florida 32301

   
   

   Honorable Victoria Tschinkel Secretary

   Department of Environmental Regulation 2600 Blair Stone Road

   Tallahassee, Florida 32301

   AGENCY FINAL ORDER

   =================================================================

   
   

   DEPARTMENT OF ENVIRONMENTAL REGULATION FLORIDA MINING AND MATERIALS

   Petitioner,

   
   

   vs. OGC CASE NO. 81-0248

   
   

   STATE OF FLORIDA, DEPARTMENT OF ENVIRONMENTAL REGULATION,

   
   

   Respondent.

   /

   
   

   On April 12, 1982, the Division of Administrative Hearings' hearing officer who conducted a Section 120.57(1), Florida Statutes, hearing in the above-styled

   
   

   Regulation ("Department"). A copy of the Recommended Order is attached as Exhibit A. Pursuant to Section 120.57(1)(b

   Administrative Code Rule 17-1.68(1), the parties were allowed ten days in which to submit written exceptions to the Recommended Order. The Department timely

   
   

   Exhibit B. Petitioner then timely filed a response to the Department's Exceptions, a copy of which is attached as Exhibit C. The licensing tine limits

   
   

   it was agreed that I would have up to and including August 6, 1982, to enter this Final Order.

   
   

   Chapter 403 Jurisdiction

   
   

   The Department argues that the hearing officer erred in concluding as a the landward extent of surface waters of the state, namely the waters of the

   officer's conclusions of law relating to Chapter 403, Florida Statutes, jurisdiction are specifically rejected for the following reasons.

   Department regulatory authority over the proposed rock mining activity is founded on Section 403.087, Florida Statutes, and Florida Administrative Code Rule 17-4.28(2). Florida Administrative Code Rule 17-4.28(2) requires that a permit be obtained from the Department prior to dredging or filling within the landward extent of, or in an area connected directly to, the named waters of the state, which include rivers. Fla. Admin. Code Rule 17-4.28(2)(a). Florida Administrative Code Rule 17-4.02(17), defines landward extent of waters of the state, in relevant part, as:

   
   

   . . .that portion of a surface water body indicated by the presence of one or a combination of the following as the dominant species:

   
   

   Saw Grass Cladium jamaicensis

   
   

   The hearing officer found that sawgrass is the dominant species on the project site, and that there is continuous saw ass vegetation from the project site southwest to the defined channel of the Shark River. The hearing officer also noted in his conclusions of law that there is an unbroken, continuous sawgrass prairie reaching from the defined channel of the Shark River to the project site.

   
   

   Since sawgrass is the dominant species on all of the property in an unbroken line from the defined channel of the Shark River up to and including the project site, the project site is within the landward extent of the waters of the Shark River. A permit is therefore required for any dredging or filling activities on the project site, in accordance with Florida Administrative Code Rule 17-4.28(2).

   
   

   My conclusion that the project site is within the landward extent of the waters of the Shark River is in accordance with the statute authorizing the use of vegetative indicators to determine the landward extent of waters of the State. That statute, Section 403.317, Florida Statutes, states in part:

   
   

   1. It is recognized that the levels of the waters of the state naturally rise and fall, depending upon tides and other hydrological, meteorological, and geological circumstances and features. The natural rise and fall of the waters is essential to good water quality, but often makes it difficult to determine the natural landward extent of the waters. Therefore, it is the intent of the Legislature that the Department of Environmental Regulation establish a method of making such determinations, based upon ecological factors which represent these fluctuations in water levels.

      
      

   2. In order to accomplish the legislative intent expressed in subsection (1), the department is authorized to establish by rule, pursuant to chapter 120, the method for determining the landward extent of the waters of the state for regulatory purposes. Such extent shall be defined by species of plants

areas subject to regular and periodic inundation by the waters of the state. The

shall be by dominant species. . .(

The statute states that the landward extent of waters of the state for regulatory purposes shall be defined by dominant species of certain plants. The

Dictionary 295 (1979), or "to fix or establish the limits," or "to mark the limits of," Black's Law Dictionary 510 (Rev. 4th ed. 1968). Since words of

Cormier, 375 So.2d 852 (Fla. 1979), it follows that the rule conclusively defines and establishes the extent and limits of waters for regulatory purposes.

landward extent of waters is not weakened by the fact that the Department is empowered to determine an essential element of the

the power to determine the facts upon which the statute makes its own action depend. State v. Atlantic C.L.R. Co., 56 Fla. 617, 47 So. 969 (Fla. 1908). The

enacted Section 403.817, Florida Statutes, in order to validate the Department's action in adopting the vegetative indices, by the fact that the vegetative

rulemaking process, and by the fact that the Legislature must by act approve any amendments to the vegetative indices.

jurisdiction on a reading of the unnumbered paragraph following subparagraph (g) in Florida Administrative Code Rule 17-4.28(2). The hearing officer incorrectly

establishing a rebuttable presumption that the vegetative indicators of Florida Administrative Code Rule 17-4.02(17) accurately delineate the landward extent of

following reasons.

The intent paragraph, the unnumbered or "flush left" paragraph below

adopting that portion of the rule prior to the enactment of Section 403.817. It does not function as a part of the test of jurisdiction, but rather it describes

The paragraph recites the intent that areas be subject to jurisdiction which are "customarily submerged" and "exchange water with a recognizable water body"

determination to physically or scientifically ascertain whether an area is "customarily submerged" or is "exchanging water with a recognizable water body".

characteristics is to be recognized by the dominance of vegetation from the species list in Florida Administrative Code Rule 17-4.02(17). The intent

. . .It is the intent of this rule to include in the boundaries of such water bodies areas

waters with a recognizable water body as described in Section 17-4.28(2) (i.e., areas

state as defined in Section 17-4.02(17). . .

It follows that those areas within the landward extent of waters of the state as defined in Florida Administrative Code Rule 17-4.02(17) are conclusively defined to be "customarily submerged" and to "exchange waters with a recognizable water body." A hearing officer has upheld this interpretation, concluding as a matter of law that the intent paragraph ". . .does not purport to be a test of jurisdiction, but rather is an attempt to describe those areas which are intended to be included or excluded from jurisdiction" as defined by the rule. Occidental Chemical Company v. Department of Environmental Regulation, DOAH Case No. 80-895R (Final Order entered November 26, 1980), aff'd per curiam 411 So.2d 388 (Fla. 1st DCA 1981).

I must note that even if the area of the proposed rock mining activity was not properly found to be "within the landward extent" of the waters of the Shark River, the Department would nevertheless have permitting jurisdiction over the project. The proposed dredging and filling will take place in an area directly connected to the Shark River, as evidenced by the continuous, unbroken stretch of sawgrass between the river and the project site. The direct connection referred to in the rule may, as a matter of law, be established by the dominance of species of vegetation listed in Florida Administrative Code Rule 17-4.02(17). A permit would therefore be required pursuant to Florida Administrative Code Rule 17-4.28(2).

I must also emphasize that this case involves the Everglades, which is a significant and unique habitat for wildlife and which serves as a recharge area for the Biscayne Aquifer, the sole source of drinking water for the residents of South Florida. Further, the area where the project is to take place is located at the headwaters of the Shark River Slough, which flows through Everglades National Park, the waters of which are Outstanding Florida Waters. I reiterate the Department's determination to provide the highest degree of protection to the waters of the Everglades consistent with the statutes and rules under Which the Department operates.

Reasonable Assurance

The hearing officer found that. . .the waters of the rock pits probably will not meet the State standards of 5.0 mg. per liter at various times. . ." Given this finding, the Department contends that the hearing officer erred in concluding as a matter of law that reasonable assurance has been provided. I ordinarily would agree with the Department's contention, but based on the record before me I conclude that reasonable assurance has been provided for the following reasons.

As previously discussed, the proposed rock excavation will take place within the landward extent of surface waters of the state. The proposed activities constitute dredging and filling for which a permit is required pursuant to Florida Administrative Code Rules 17-4.03, 17-4.07, and 17-4.28(2). Petitioner here must affirmatively establish its entitlement to a permit.

Florida Administrative Code Rule 17-4.07(1) states:

1. A permit may be issued to the applicant upon such conditions as the Department may direct, only if the applicant affirmately provides the Department with reasonable assurance based on plans, test results and other information, that the construction,

activity of the installation will not discharge, emit, or cause pollution in

or regulations. . .

Florida Administrative Code Rule 17-4.28(3) states the requirement as follows:

permit or a federal certification for a dredging and/or filling activity shall

the department that the short term and long-term effects of the activity will not

criteria, standards, requirements and provisions of Chapter 17-3, Florida

upon denying any application, furnish the applicant an official statement specifying

including a precise statement of those violations of water quality criteria,

expects to be caused by such activity and the manner in which such effects are expected to

As I discussed in my ruling on the jurisdictional exception, the area of the proposed rock mine is within the landward extent of and directly connected

17-3.161(1), the area of the proposed construction and the waters in the proposed rock pits are and will be Class III surface waters of the state, these

Since the hearing officer found that the waters of the rock pits will probably not comply with the applicable dissolved oxygen criteria for Class III

be concluded that reasonable assurance had not been provided for the operation of the rock mine as proposed by Petitioner. In this case, however, the hearing

expected low dissolved oxygen levels is based on his recommendation that certain conditions be imposed by any permit that night be issued.

depressed dissolved oxygen levels is based on the introduction into the lakes of "face

that this lime rock residue could present a biochemical oxygen demand problem as it settled and formed a layer on the bottoms of the lakes. This fine lime rock

organisms and plants. In his conclusions of law, the hearing officer recommended that any permit that might be issued be conditioned upon Petitioner

With this condition imposed the adverse impacts that would result from the introduction of the lime rock residue would be avoided. However valid the

assurance question, those issues must be left for resolution at another time in

another case where I, as agency head, will not be bound by Section 120.57(1), Florida Statutes, to the factual record of the instant case. I am unable to overturn the hearing officer's finding that reasonable assurance would be provided based on the record I have before me.

I must note that since the parties expressly stipulated that possible groundwater degradation was not at issue in this case, and since it appears from the record that groundwater contamination is not reasonably expected, this Final Order constitutes approval for discharges to groundwater incident to the conduct of the permitted mining activity. Estech General Chemicals Corporation et al.

v. State of Florida Department of Environmental Regulation, DOAH Case Nos. 81- 039, 81-040, 81-335, 81-995, 81-1486 (Final Order entered May 28, 1982). The Estech Order continues to be the Department's expression of policy in the areas of groundwater jurisdiction and permitting.

Cumulative Impact

Although the Department took no exception to the hearing officer's conclusion of law relative to cumulative impact, clarification of the hearing officer's conclusion is appropriate. The hearing officer noted that the Department had expressed the concern that extensive mining throughout the east Everglades nay lead to cumulative impacts upon the area. However, he concluded that such concerns are too speculative to be considered. This conclusion appears to be based on his finding that no applications for similar projects are pending or have been granted in the area.

It must be clarified that the Department must consider the cumulative impacts of such projects in making permitting decisions. See e.g. Key Haven Associated Enterprises, Inc., v. DER, DOAH case No. 76-946 (Final Order entered June 22, 1977); Sunset Acres Mobile Home Sales v. DER, 2 FALR 875-A; Walton v. DER, 3 FALR 1273-A; Hodges v. DER, 4 FALR 40-A; Kyle Brothers Land Company, Inc.

1. DER, 4 FALR 832-A; Baker Cut Point Company Inc. v. DER, 4 FALR 1075-A. The fact that there are no pending applications in the project area is in itself no basis to consider a cumulative impact review speculative. To the extent that the hearing officer based his rejection of the cumulative impact issue on his factual finding that no other applications are pending, his conclusion of law is in error. However, the unique circumstances of this case (involving mining) and the silence in the record with regard to other mineral deposits to be mined in the area constitute an inadequate basis for me to make additional findings with regard to cumulative impact.

   
   

   Additional Conclusions of Law

   
   

   The Department has requested that two additional conclusions of law be made that were omitted by the hearing officer. Having concluded that the Department has dredge and fill jurisdiction, and having found that the proposed conclusions of law are relevant to this matter and supported by the record, I make the following additional conclusions of law.

   
   

   1. The area of proposed construction and the water bodies created by the rock mining operation are and will be Class III surface waters of the state. Therefore, the water quality criteria of Florida Administrative Code Rules 17- 3.051, 17-3.061, and 17-3.121 are applicable.

   2. The proposed rock mining operations, the rock processing facilities, and the resulting rock pits constitute stationary installations which may

therefore has permitting jurisdiction over Petitioner's proposed activities pursuant to Section 403.087, Florida Statutes, and Florida Administrative Code

Stipulation for Issuance of Permit

On August 5, 1982, the parties entered into a Stipulation for Issuance of a

stipulation includes an agreement by Petitioner to grant a conservation easement for the property which is the subject of this permit application in return for

recommendation that the permit be issued. I expressly approve and adopt the Stipulation in its entirety by my entry of this Final Order.

Having considered the Recommended Order and exceptions thereto, and the record and pleadings in this case, it is hereby

1. The hearing officer's Findings of Fact are adopted in toto.

   
   

2. The hearing officer's Conclusions of Law are adopted as modified and

   
   

3. The terms and conditions of the Stipulation for Issuance of Permit are expressly adopted by and incorporated in this Final Order.

issue a dredge and fill permit with such conditions as are necessary to assure that the applicable water quality standards are not violated. The permit shall

be screened to the maximum practicable extent, both technically and economically, so as to minimize biochemical oxygen demand and turbidity

with the conditions attached to the zoning variance granted by Dade County as directed by the hearing officer in Conclusion of Law Number 3.

August, 1982.

Secretary

State of Florida Department of Environmental Regulation Twin Towers Office Building

Tallahassee, Florida 32301

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that true and correct copies of the foregoing Final Order have been furnished by hand delivery to WADE HOPPING, ESQ. and FRANK E. MATTHEWS, ESQ., Hopping, Boyd, Green & Sams, Suite 420, Lewis State Bank Building, Tallahassee, Florida 32301; RAY PEARSON, ESQ. and BRUCE CHRISTENSEN, ESQ., Floyd, Pearson, Stewart, Richman, Greer & Weil, P. A., One Biscayne Tower, Twenty-Fifth Floor, Miami, Florida 33137 on this day of August, 1982.

PAUL R. EZATOFF, JR.

Assistant General Counsel

Docket for Case No: 81-001961

Orders for Case No: 81-001961