STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
PETER GOLDRING, )
)
Petitioner, )
)
vs. ) CASE NO. 82-748
) STATE OF FLORIDA DEPARTMENT OF ) ENVIRONMENTAL REGULATION, )
)
Respondent. )
)
RECOMMENDED ORDER
Pursuant to notice the Division of Administrative Hearings bay its designated Hearing Officer, Michael Pearce Dodson, held the final hearing in this case on January 10-11, 1983, in Coral Gables, Florida. The following appearances were entered:
APPEARANCES
For Petitioner: John G. Fletcher, Esquire
7600 Red Road, Suite 222
South Miami, Florida 33143-5484
For Respondent: Alfred J. Malefatto, Jr., Esquire
Assistant General Counsel Twin Towers Office Building 2600 Blair Store Road Tallahassee, Florida 32301
BACKGROUND
These proceedings began on March 3, 1902 when Petitioner E. Peter Goldring filed a Petition for Hearing with Respondent Department of Environmental Regulation to contest the Department's intent to deny him a dredge and fill water quality control permit. On March 16, 1982, the case was forwarded to the Division of Administrative Hearings for the assignment of a Hearing Officer and the scheduling of a final hearing. At the joint request of the parties the case was stayed on March 29, 1982 to allow settle'“tent discussions between the parties.
These discussions were not successful and a final hearing was initially scheduled for January 7, 1983.
On November 8, 1982 Petitioner filed a Motion for Summary Judgment in which be requested a default permit pursuant to Section 120.60(2), Florida Statutes. By correspondence dated November 24, 1982, Petitioner withdrew his Motion for Summary Judgment because be had discovered additional facts contrary to the position asserted in his Motion. Subsequently the parties agreed that two days would be required for the final hearing. It was therefore reset for January 10-11, 1983.
At the final hearing Petitioner presented testimony of witnesses and offered exhibits P-1 through P-24, P-26, P-27 and P-29, which were received into evidence. Respondent presented the testimony of witnesses and offered exhibits A-I which were received into evidence.
Both parties have filed Proposed Recommended Orders containing proposed findings of fact which have been given careful consideration here. To the extent that the proposed findings are not reflected in this Order, they are specifically rejected as being either not supported by the :eight of admissible evidence or as being irrelevant to the issued determined here. 1/
FINDINGS OF FACT
Petitioner has applied for a water quality control permit to authorize the mining of Miami oolite (limestone) on a site several miles south of Florida City in South Dade County, Florida. The specific location is in Section 18, Township 58 South, Range 39 East, immediately to the west of U.S. Highway One.
Petitioner's application was filed with the Department on June 15, 1981. The Department requested various kinds of additional information which were supplied. The application was complete on December 15, 1981. Subsequently a letter of intent to deny the requested permit was issued on February 19, 1982. The reasons for the denial were:
The project would destroy approxi- mately 70 acres of Everglades, saw- grass wetlands.
The resulting pit would provide a direct access to the Biscayne
Aquifer and permit the introductions of pollutants therein.
The water body which would be created in the pit would become "waters of
the state" and would not meet state
water quality standards.
The cumulative impact of "existing and proposed similar projects would result in a lowering of the water quality in the surface waters of the Everglades and the ground waters of
the Biscayne Aquifer.
The Applicant has not given reasonable assurances that the state standards
for Class III waters and Class I-B waters would not be violated. Speci- fically the standards for turbidity, biological integrity, dissolved oxygen, lead, and oils and greases would be contravened.
Two months later the Department amended its intent letter by adding specific conductance as one of the state standards which the project would violate.
Description of the Project
The applicant proposes excavating approximately 4,500,000 cubic yards of limestone from a 70-acre cut at the project site. At the conclusion of the mining, which is expected to last five to seven years, the cut will be 62 feet deep and filled with fresh water which will come from rain water and ground water seepage. At all times pertinent to the requested permit Mr. Goldring will own land completely surrounding the resulting artificial lake created by limerock removal.
The mined limerock will be crushed at the site and then sold for the construction of roads and production of concrete products.
During the period of excavation a "haul road" will be used to allow trucks entering the site from U.S. Highway One to approach the draglines performing the mining. During their operation the diesel pored draglines are expected to drip certain pollutants such as grease and diesel fuel which will enter the water on the site. These pollutants will be limited in their effect to the immediate pit area and while they will violate state standards for visible or undissolved oil, these violations will abate as soon as the mining stops.
Jurisdiction
The project site is in the middle of a vast sawgrass prairie which is part of the vast Everglades. The site is wet enough to support sawgrass as the dominant vegetation. For
approximately ten percent of the year the land is completely submerged but it is apparently dry enough for farming because in the recent past the area was rock plowed. Rock plowing is the removal of surface rocks in order to prepare land for cultivation.
The sole source of water on the site is rain water which either falls immediately on the site or to the northwest. During the rainy season there is a sheet flow of water from the northwest to the southeast across the site. This flow from the site is interrupted immediately to the east by U.S. Highway One and to the south by a road called Missile Road. At the intersection of Missile Road and U.S. Highway One there are two culverts several feet in diameter which allow water from the north to flow south into a vast area of more open sawgrass. That area of grass is hounded on the south by another road. As with the Missile Road, there is a culvert under the road. There is again a sawgrass marsh to the south which then abuts a levee constructed on the north of Canal C-111. There are breaks in the levee through which water can flow to reach the channel of C-111 and finally arrive in Florida Bay, a Class III water of the state. Except for the roads and the canal the land between the project site and Florida Bay is covered entirely by sawgrass.
Florida Bay which is salt water does not exchange water with the project site which is approximately 4 1/2 miles to the north of the Day. If it did, sawgrass which is a fresh water aquatic plant would not be growing on Mr. Goldring's property. Sawgrass is not present in the culvert which transverse Missile Road and the other east-west road to the south. Sawgrass is also not present on the levee or in the channel of Canal C-111.
Dissolved Oxygen
Whether or not the state standard 2/ for dissolved oxygen (DO) will be violated is an important issue here. Much of the DO in standing water, such as the lake which will result from the excavation, comes from wind work and photosny-thesis. Wind work is the movement of atmospheric oxygen into the surface of water through the mechanical action of wind flowing across the surface. The photosynthetic action of plants produces dissolved oxygen under water. This action is dependent upon sufficient light. It is a logical conclusion therefore that because more light and all wind work is available at the surface of a water body, as the depth of the water increases, the availability of dissolved oxygen decreases. This simple logic ignores the fact that water mixing can occur through thermal changes.
If the surface of a water body is cooled, the upper water layer becomes denser and sinks toward the bottom. This
movement has the potential to move dissolved oxygen-rich water down to depths below which dissolved oxygen is ordinarily generated. It is apparently thermal oxygenation which accounts for the presence of water meeting state DO standards being found as deep as 50 feet in limerock pits in Dade County.
In the recent study of "wilderness lakes" 3/ by the Department of Environmental Resources Management of Dade County the author concluded that water depth in such lakes is not a controlling factor for water quality parameters such as DO. That study plus data from an Army Corps of Engineers Technical Report "Excavation and Use of Limestone in South Florida" provides reasonable assurances that Mr. Goldring's project will not cause a violation of state dissolved oxygen standards in waters of the state. During sampling for the Corps studies, DO levels of 9.2 milligrams per liter were found as deep as 40 feet in the Florida Rock and Sand limestone pit located less' than one mile to the east of Mr. Goldring's property.
Biological Integrity and Turbidity
For Class III waters the state standard is that the Shannon-Weaver diversity index of benthic macroinvertebrates shall not be reduced below 75 percent of established background levels. Neither the Department nor the Petitioner has taken any samples to establish what the background levels are on the Goldring site. It is obvious that if large draglines begin excavating, the macroinvertebrates immediately underneath the draglines will be completely destroyed and tide state standard will be violated. This destruction however, is no different from that which occurs in any dredge and fill project and if the biological integrity standards were literally applied no such projects could be permitted. The Department therefore does not apply the standard immediately at the point of either active dredging or filling while such activities are in progress.
The same is true of the turbidity standard. A dredging operating in water is bound to violate the 50 Jackson units above background criterion during the actual removal of earth. The Department does not apply the standard at the point of the dredging cut. This interpretation of the rule has its historical origin in concerns expressed by the United States Army Corps of Engineers that if the rules were literally applied, the Corps could never do any work in Florida.
Under the Department's present interpretation of its rules that biological integrity and turbidity are to be measured immediately outside the dredging cut, Mr. Goldring has been giving reasonable assurances that those state standards will not be violated here if turbidity curtains are used along the edge of
the excavation during periods of high water when the turbidity in the pit could flow out of the pit and onto the surrounding sawgrass plains.
Upon its initial review of Mr. Goldring's permit application the Department was concerned about the possibility that lead from gasoline fueled trucks and draglines may be introduced into state waters. This fear has now been alleviated somewhat by the knowledge that diesel fuel will be used for the equipment operating on the site. The Department also expressed concern about the potential for runoff from U.S. Highway One immediately to the east of the site containing lead and entering waters of the state from that sours There is however, no showing that the project will in any way increase the runoff which already exists from U.S. Highway One. Petitioner has given reasonable assurances that the state standard for lead in Class III waters will not be violated by the project.
Specific Conductance
The standard for specific conductance in state fresh surface waters is for the increase to be not more than 100 percent above background or to a maximum of 500 micromhos per cubic centimeter. The natural background level in the area of the site is less than 100 micromhos. The earlier mentioned Army Corps study shows readings ranging between 270-110 micromhos in limestone pits in South Florida. 4/ From these readings it is reasonable to conclude that there is a substantial possibility that Petitioner's project will cause conductance violations in the pit. Petitioner has not provided any data of sufficient weight to indicate that such violations will not occur.
Cumulative Impact
The excavation contemplated by the Applicant will result in the destruction of 70 acres of Everglades wetlands and will leave in their place a water-filled limestone pit. The loss of the wetlands will eliminate the cleansing effect which the sawgrass has on water flowing through it. In the instant case however, it does not appear that the waters of Florida Bay where C-111 enters will have Its quality in any way affected' by destruction of sawgrass on Mr. Goldring's property. Also it does not appear that the water in the area immediately surrounding the project site is in need of any cleansing from the sawgrass which may be removed. Except for the Florida Rock and Sand operation to the east of the site, the area is relatively undisturbed and the water quality is not stressed.
Since 1979 the Department has processed 35 applications for rock mines in Dade County. The land area involved in those
applications is an estimated total of 29 square miles. According to the Corps of Engineers study there are at least ten limestone pits, active or inactive, in Dade County. The limestone reserves remaining in Dade County, though not accurately estimated, are considered extensive. Limerock is the primary mineral resource of any economic value in the Dade County area.
The operation of the existing limestone pits has necessarily caused the destruction of wetland vegetation, and thereby eliminated the cleansing of surface waters which the vegetation provides,
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties and the subject matter of this case. Section 120.57(1), Florida Statutes.
Mr. Goldring's project is a stationary installation which is reasonably expected to be a source of water pollution. Section 403.087, Florida Statutes (1981).
Petitioner contests the Department's jurisdiction over the location of his proposed mining. While conceding that sawgrass is the dominant vegetation on the location of his proposed mining, be argues that the presence of an index species 5/ is not the sine qua non of the landward extent of state waters and there must be some connection to a river, stream, or other natural water body, such as Florida Bay. Section 17-4.28, Florida Administrative Code requires:
(2) Pursuant to Sections 403.061,
403.087 or 403.088, F.S., those dredging or filling activities which are to be conducted in, or connected directly or via an excavated water body or series of excavated water bodies to, the fol-
lowing categories of waters of the state to their land-ward extent as defined by Section 17-4.02(17), F.A.C. require per- mit from the department prior to being undertaken:
rivers and natural tributaries thereto; --
streams and natural tributaries thereto;
bays, bayous, sounds, estuaries and natural tribtitaries thereto;
natural lakes, except those owned entirely by one person. ...
Atlantic Ocean out to the sea- ward limit of the State's territorial boundaries;
Gulf of Mexico out to the sea- ward limit of the State's territorial boundaries;
natural tributaries to not in- clude intermittent natural water courses which act as tributaries only following the occurrence of rainfall and which
normally do not contain contiguous areas of standing water.
The Department recognizes that the natural border of certain water bodies listed in this section may be difficult to establish because of seasonal fluc- tuations in water levels and other
characteristics unique to a given terrain. The intent of the vegetation indices in Section 17-4.02(17), F.A.C., is to guide in the establishment of the border of the water bodies listed in this section. It is the intent of this rule to include in the boundaries of such water bodies areas which are customarily submerged and ex- change waters with a recognizable water body (i.e. , areas within the landward extent of waters of the state as defined in Section 17-4.02(17)). Isolated areas which infrequently exchange water with
a described water body or provide only
insignificant benefit to the water quality of a water body are intended to have 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.
There is no question that Florida Bay which directly connects to the Atlantic Ocean is a state water. The question is just how far north across the land of South Florida does Florida Bay extend in its landward extent. Water bodies are dynamic. Their levels change, they create and destroy shorelines, and they even disappear suddenly. These dynamic features are recognized in Section 403.817, Florida Statutes (1981), where the Legislature stated:
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 determi- nations, based upon ecological factors which represent these fluctuations in water levels.
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....
Since the Department's rules which define the landward extent of state waters have as their authority, Section 403.817, it is important to divine the purpose of the vegetative indices established by the statute. Paragraph (1) recognizes ". that the levels of the waters of the state naturally rise and fail, depending upon tides and other hydrological, meteorological, and geological circumstances and features." The purpose of Section 403.817 is to determine the scope of the land over which the waters rise and fall. In paragraph (2) the statute further envisions that the defined area will be subject to regular and periodic inundation.
The simplest model which illustrates the operation of Section 403.817 is a tidal bay. As the tides regularly and periodically rise and fall the amount of the area covered by the bay increases at high tide and decreases at low tide. The land above the low tide mark and below the high tide mark is the "landward extent" of the bay. Because the high tide mark on one day is not always the same as on the next day due to those circumstances mentioned in paragraph (1), the Legislature chose to enlist a convenient natural instrument for determining the landward extent of state water bodies. This instrument is the vegetative index.
It is scientifically known that certain plants like to have their "feet wet" on a periodic basis. The Department of Environmental Regulation was therefore authorized to define the landward extent of state waters by using those species of plants which are characteristic to lands regularly flooded by waters of the state. The use of this instrument obviated the need for keeping impossibly detailed records on high tide marks or river flood lines.
The most important point from Section 403.817 for this case is that the landward extent of a state water is that portion of land covered by water as the result of dynamic, regular, and periodic action from the state water body itself. The river must flood, the tide must rise, or the stream must meander in order to create the landward extent of each water body.
The foregoing concept is embodied in Section 17- 4.28(2), Florida Administrative Code where it states:
"The department recognizes that the natural border of certain water bodies listed in this section may be difficult to establish because of seasonal fluctuations in water levels and other characteristics unique to a given terrain... It is the intent of this rule to include in the boundaries of such water bodies areas which are customarily submerged and exchange waters with a recognizable water body. Isolated
areas which infrequently exchange water with a described water body or provide only insignificant benefit to water quality of the water body are intended to be designated as uplands. The
vegetative indices In Section 17-4.02(17), F.A.C., [are] presumed to accurately delineate the landward extent of such water bodies."
I conclude from the foregoing that Mr. Goldring's project site is not within the landward extent of Florida Bay.
The site is four and one-half miles north of the recognizable edge of Florida Bay as shown on maps of the area. There is no exchange of water between the site location and the Bay. The concept of exchange does not include a oneway flow, but denotes a give and take. The dynamic action of Florida Bay has no direct effect on the water at the site. The sole source of water for the site is rainfall which either directly falls there,
or flows from the northeast in a sheet flow onto the property. The water which flows off of the site is fresh water, yet Florida Bay is salt water. The sawgrass which is on Mr. Goldring's land could not very well be an index of the landward extent of Florida Bay because sawgrass is one of the fresh water species. Section 17-4.02(17), Florida Administrative Code.
Careful consideration has been given to the Department's Final Order in Florida Mining and Minerals Corporation v. Department of Environmental Regulation, 4 FALR 2230-A (Florida Department of Environmental Regulation, August 5, 1982). To the extent that the order can be read to suggest that the existence of an index plant, without more, automaticaly establishes as a matter of law the landward extent of a water body of the state, the Hearing Officer must respectfully disagree with the conclusions therein. It would be ludicrous to believe that the growing of water lilies in an suburban goldfish pond automatically makes the pond part, of the landward extent of a water of the state.
Cumulative Impact
The question of whether a particular project will have a "cumulative impact" 7/ on water quality has been mentioned in numerous DER cases. Rossetter v. Department of Environmental Regulation, 5 FALR 1195-A (Florida Department of Environmental Regulation, May 19, 1983), and the cases cited therein at 1195-A; Langford v. Boynton, 5 FALR 296-A (Florida Department of Environmental Regulation, January 7, 1983).
A review of these cases fails to reveal a definitive statement of what, in the Department's opinion, constitutes cumulative impact. The cases merely mention the concept. For instance in the decision of Florida Mining and Materials Corporation v. Department of Environmental Regulation, supra, the Secretary in her Final Order stated:
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 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 Co., Inc. v. DER, 4 FALR 832-A; Baker Cut Point Co., 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 of the re- cord 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. 4 FALR at 2232-A.
Is cumulative impact a consideration of all activities, man-made or natural, which may affect the water quality of a particular water body? Does the term encompass only impact from similar projects? For instance should consideration be given here to rock plowing or highway construction in the area or be limited only to other rock mines? What is the time period to be considered in aggregating impacts? What part does the concept of stare decisis play in the Department's consideration of impacts? For instance does cumulative impact mean that once the first activity of a particular kind is permitted that all subsequent similar activities must automatically be permitted without regard to an increasing degradation of the water body in question?
The case law of the Administrative Procedure Act recognizes that state agencies may articulate and employ "incipient policy." MacDonald v. Department of Banking and Finance, 346 So.2d 569, (Fla. 1st DCA 1977). Before they may do so however, they must prove in the record of each case a factual foundation for such policy and then must explicate the basis for the policy. Department of Education v. Attwater, 417 So.2d 749, 751 (Fla. 1st DCA 1972). Once the agency "...solidifies its position on policy in a particular area, ... such established policy should be codified by rule." City of Tallahassee v. Florida Public Service Commission, 433 So.2d 505, 507 (Fla. 1983).
No policy on cumulative impact has been proven here. Neither the Department's witnesses nor its documentary evidence explicates a sufficiently coherent policy on which a recommendation to either grant or deny a dredge and fill permit can be based. I therefore conclude that Mr. Goldring does not have to give reasonable assurances that his project will not have a cumulative impact on the water quality of Florida Bay until such time as the Department has stated a coherent policy with criteria against which his project may be measured.
Class III Water Criteria
The standards of Class III surface waters are found in Sections 17-3.061 and 17-3.121, Florida Administrative Code. The Department's Notice of Intent, as amended, refers to violations of the standards for turbidity, biological integrity, dissolved oxygen, lead, oils and greases, and specific conductance. Petitioner has provided reasonable assurances pursuant to Section 17.407, Florida Administrative Code, that the project as planned will not cause long term pollution in violation of the foregoing criteria except for specific conductance. During the period of excavation, from five to seven years, there will be short term violations of the oil and grease standard. The overall impact of these violations on the water quality of Florida Bay will not by themselves be significant. As the Army Corps of Engineers study concluded, limestone mining generally has little, if any influence on water quality. 8/
Based on the foregoing Findings of Fact and Conclusions of Law, it is
RECOMMENDED:
That the Department of Environmental Regulation enter a Final Order determining that it is without jurisdiction over the activity for which the Petitioner has sought a permit.
DONE and RECOMMENDED this 26th day of September, 1983, in Tallahassee, Florida.
MICHAEL P. DODSON
Hearing Officer
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 26th day of September, 1983.
ENDNOTES
1/ Sonny's Italian Restaurant v. Department of Business Regulation, 414 So.2d 1156, 1157 (Fla. 3d DCA 1982); Sierra Club
v. Orlando Utilities Commission So.2d , 8 FLW 2077,2079 (Fla. 5th DCA August 18, 1983).
2/ 5.0 milligrams per liter or more
3/ As defined in the study, wilderness lakes are man-made or naturally located in nonurban areas.
4/ Readings from Monroe County pits are not considered here because of their high salinity content.
5/ Section 17-4.02(17), Florida Administrative Code.
6/ One of the fresh water submerged index species. Section 17- 4.02(17), Florida Administrative Code.
7/ In this Order cumulative impact is distinguished from "secondary impact", that is, results which may indirectly flow from granting a permit. An example would be the impact on water quality which would come from new residential septic tanks if a canal were permitted to be excavated. Digging the canal itself would not directly cause the anticipated septic tanks to pollute the water, but the construction of the canal might be a sufficient impetus for new residential development which would result in bringing in the septic tanks See Kyle Brothers Land Company, Inc. v. Department of Environmental Regulation, 4 FALR 832-A (Florida Department of Environmental Regulation, March 5, 1982).
8/ Excavation and Use of Limestone in South Florida, Technical Report and Environmental Investigation at page 1-90.
COPIES FURNISHED:
John G. Fletcher, Esquire Suite 222
7600 Red Road
South Miami, Florida 33143-5484
Alfred J. Malefatto, Jr., Esquire Assistant General Counsel Department of Environmental
Regulation
2600 Blair Stone Road Tallahassee, Florida 32301
Victoria Tschinkel, Secretary Department of Environmental
Regulation
Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32301
================================================================= AGENCY FINAL ORDER
=================================================================
STATE OF FLORIDA
DEPARTMENT OF ENVIRONMENTAL REGULATION
E. PETER GOLDRING, Petitioner,
vs. CASE NO. 82-748
OGC FILE NO. 82-0190
STATE OF FLORIDA, DEPARTMENT OF ENVIRONMENTAL REGULATION,
Respondent.
/
FINAL ORDER
On September 26, 1983, the Division of Administrative Hearings' hearing officer in the above-styled case submitted his Recommended Order to me. A copy of that order is attached as Exhibit A. Pursuant to Florida Administrative Code Rule 17- 1.68(1), all parties to the proceeding were allowed ten (10) days within which to submit exceptions to the Recommended Order. Both Petitioner E. Peter Goldring (the "Petitioner") and Respondent Department of Environmental Regulation (the "department") filed exceptions. Copies of those exceptions are attached as Exhibits Bland C, respectively.
RULINGS ON EXCEPTIONS
Petitioner's Exceptions - Petitioner takes exception to both the hearing officer's finding of fact and conclusion of law relating to specific conductance. Specifically, the hearing
officer found that there was a "substantial possibility" that Petitioner's limestone mining operation would result in violations of the department's specific conductance standard. He based that finding on an Army Corps of Engineers technical report on limestone mining in south Florida.
Petitioner objects to this finding on the grounds that the testimony of the department witness on this point was not competent to support the finding. It appears from the record, however, that the hearing officer reached his conclusion on a basis other than the testimony to which Petitioner takes exception. A review of the entire record supports the hearing officer's finding on this point. Petitioner's exceptions are rejected.
Department's Exceptions - Counsel for the department takes exception to numerous findings of fact and conclusions of law which will be dealt with individually.
First, the department objects to the hearing officer's characterization of the permit as a "water quality control permit". While this characterization does not appear to have any impact on the ultimate recommendation by the hearing officer, I would note that the permit sought by the Petitioner is more accurately described in the department's exceptions as a dredge and fill permit.
The department next takes exception to the hearing officer's finding of facts that there cannot be an exchange between the waters of Florida Bay and the project site since the site is dominated by sawgrass (a freshwater species) and Florida Bay is saltwater. The department also takes exception to the conclusions of law that the concept of exchange does not include a one-way flow and that the site cannot be within the landward extent of Florida Bay since it is dominated by a freshwater species.
There is no question that Florida Bay is a body of saltwater and that the water at the proposed mining site i freshwater.
Likewise, it is uncontroverted that the ultimate source of water at the site is rainwater either in the form of rainwater falling directly on the site or sheet flow from property northeast of the site. Finally, it is agreed that the dominant vegetation at the site is sawgrass, a species listed in Florida Administrative Code Rule 17-4.02(17).
Based on these facts, the hearing officer concludes that the department does not have jurisdiction because there is no "exchange" between the waters of a named water body (Florida Bay) and the waters on the site. In reaching that conclusion, the
hearing officer cites the following language from Section 403.817, Florida Statutes.
(1). It is recognized that the levels of the waters of the state naturally rise and fall, de- pending upon tides and other hydrological, meterolo- gical, 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 Legis- lature that the Department of Environmental Regula-
tion 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 land- ward extent of the waters of the state for regula- tory purposes. Such extent shall be defined by
species of plants or soils which are characteristic of those areas subject to regular and periodic inun- dation by the waters of the state. The application of plant indicators to any areas shall be by dominant species .
The hearing officer interprets this language, to limit the department's jurisdiction to those areas "covered by water as the result of dynamic, regular, and periodic action from the state water body itself". In other words, only those areas which are subject to tidal action or flooding would be within the department's jurisdiction.
In reaching this conclusion, the hearing officer misconstrues Chapter 403, Florida Statutes. Section 403.817 does not establish the test for determining the department's jurisdiction -- it simply states the legislature's intent that such jurisdiction be based on a list of plant species or soil indicators. The test of jurisdiction is contained in Florida Administrative Code Rule 17-4.28(2) which provides:
(2) Pursuant to Sections 403.061, 403.087,
or 403.088, F.S., those dredging or filling acti- vities which are to be conducted in, or connected directly or via an excavated water body, or series
of excavated water bodies to, the following categories of waters of the state to their landward extent as
defined by Section 17-4.02(17), F.A.C. require a permit from the department prior to being under- taken.
(c) bays, bayous, sounds, estuaries, and natural tributaries thereto . . .
Thus, the appropriate test of jurisdiction is whether the proposed activity is connected to a listed water body (such as Florida Bay), and, if so, whether the activity is within the landward extent of the water body, i.e., whether the site is dominated by species on the list contained in Florida Administrative Code Rule 17-4.02(17). See Occidental Chemical Co. v. Department of Environmental Regulation, DOAH Case No. 77- 2051, affirmed per curiam at 411 So. 2d 388 (Fla. 1st DCA 1981). The test is not whether the site is tidally inundated.
The hearing officer's narrow interpretation ignores the ultimate purpose of Chapter 49,3, Florida Statutes, and Rule 17-
4.28 -- the protection and enhancement of water quality. The fact that the exchange of waters in this case is one-way, from the site to the Bay, is irrelevant to the water quality benefit provided by the waters at the site. As pointed out in the exceptions filed by the department, the hearing officer's interpretation of exchange as necessarily being two-directional has been rejected in Occidental Chemical Co. v. Department of Environmental Regulation, supra.
To the extent, then, that the hearing officer's conclusions of law contained in paragraphs 8, 9 and 10 of the Recommended Order are contrary to or inconsistent with this order, they are specifically rejected. The hearing officer's finding of fact relating to the existence of an exchange of waters between Florida Bay and the site is also rejected.
In reaching this conclusion, I take note of the hearing officer's Conclusion of Law number 11 which purports to disagree with the department's Final Order in Florida Mining and Minerals Corp. v. Department of Environmental Regulation, 4 FALR 2230-A (final order issued August 5, 1982). That order is entirely consistent with my final order in this case, and cannot be read to give the department jurisdiction over isolated areas dominated by indicator species. Any suggestion that the department would assert jurisdiction over a "suburban goldfish pond" is simply hyperbole intended to cloud the real issues.
The exceptions filed by the department note that the hearing officer failed to make any conclusion of law with respect to whether the site is within the landward extent of the waters of the C-111 canal. The hearing officer specifically found that the waters on the site will flow into the C-111. Therefore, I
conclude that the department has jurisdiction over the site because it is within the landward extent of the canal.
The department also takes exception to the findings of fact related to levels of dissolved oxygen to be expected in the excavated limestone pit. The hearing officer found that the Petitioner had provided reasonable assurances that the department's standard for dissolved oxygen, (DO) would not be violated. Exceptions filed by the department point to the existence of testimony by Petitioner's own witness recognizing violations of the DO standard in existing pits in South Florida. A review of the complete record indicates that there is conflicting evidence on this point. While the hearing officer might well have found that reasonable assurances had not been provided, he chose to accept Petitioner's evidence on this point. Since there is competent substantial evidence in the record to support the hearing officer's finding of `fact on this point, I may not overturn it. Section 120.57(1)(b)9., Florida Statutes.
Next, the department takes exception to the hearing officer's conclusion of law number 6 to the extent that it suggests that the landward extent of waters of the state is related to establishment of a high or low water mark. On that point, the recommended order states that "[t]he land above the low tide mark and below the high tide mark is the 'landward extent' of the bay." As noted previously, the landward extent of waters of the state is defined in Florida Administrative Code Rule 17-4.02(17) in terms of the dominance of plant species listed in that rule. The high and low water marks are irrelevant for purposes of determining the landward extent. The hearing officer's conclusion of law on this point is rejected.
The department's remaining exceptions to conclusions of law relate to the hearing officer's holding that the Petitioner did not have to provide reasonable assurances that the cumulative impacts of his project in conjunction with other activities will not result in a violation of department rules. The hearing officer's ultimate holding is based on his conclusion that the department has stated no clear policy on cumulative impacts.
The Recommended Order does not suggest that the department lacks the statutory authority to consider cumulative impacts; and numerous final orders have recognized that such authority does exist. See Rossetter v. Department of Environmental Regulation,
5 FALR 1195-A (final order issued May 19, 1983). It has been established that the existence of a cumulative impact sufficient to require denial of a permit is a factual matter to be determined by the hearing officer. See, Rossetter v. Department of Environmental Regulation, supra.
While the hearing officer in this case raises numerous questions about the way in which the cumulative impact doctrine is to be applied, he fails to recognize that those questions are best answered in the context of the facts surrounding a particular case.
I must reject the hearing officer's conclusion that no policy statement exists sufficient to support the use of the cumulative impact doctrine to deny a permit application. I reaffirm my holding in Rossetter, supra, that cumulative impacts, where based on factual evidence as opposed to speculation, may be a basis for denial of a permit. In this particular case, the hearing officer failed to make any findings of fact with respect to cumulative impact that would justify either Issuance or denial. Generally, such a situation would require that the case be remanded to the hearing officer for additional proceedings.
In this case, however, there are independent reasons for denying the permit; thus, remand is unnecessary.
After carefully considering the record and pleadings in this case, I must conclude that the department has jurisdiction over the site of the proposed limestone mining operation. The hearing officer's findings of fact establish that the site is connected to Florida Bay and is within the landward extent of waters of the state. The hearing officer has specifically found that the Petitioner failed to provide reasonable assurances that the standard for specific conductance would be met.
Accordingly, it is ORDERED that:
The hearing officer's findings of fact and conclusions of law are adopted only to the extent that they are consistent with this order.
The Petitioner's application for a permit to conduct a limestone mining operation within waters of the state is hereby denied.
DONE AND ENTERED this 10th day of November, 1983.
STATE OF FLORIDA DEPARTMENT OF ENVIRONMENTAL REGULATION
VICTORIA J. TSCHINKEL
Secretary
Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32399-2400
Telephone: (904) 488-4805
FILING AND ACKNOWLEDGMENT
FILED, on this date, pursuant to S. 120.52 Florida States, with the designated Department clerk, receipt of which is hereby acknowledged.
Patti Mullinax 11-10-83
Clerk Date
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that two true and correct copies of the foregoing Final Order have been furnished by U.S. Mail to the Honorable Michael Pearce Dodson, Hearing Officer, Division of Administrative Hearings, The Oakland Building, 2009 Apalachee Parkway, Tallahassee, Florida 32301; and a true copy of same to John G. Fletcher,' Esquire, Suite 222, 7600 Red Road, South Miami, Florida 33143-5484, this 10th day of November, 1983.
STATE OF FLORIDA DEPARTMENT OF ENVIRONMENTAL REGULATION
MARY F. SMALLWOOD
General Counsel
Twin Towers Office Building 2600 Blair Stone Road
Tallahassee, Florida 32399-2400
Telephone: (904) 488-9730
| Issue Date | Proceedings |
|---|---|
| Nov. 16, 1983 | Final Order filed. |
| Sep. 26, 1983 | Recommended Order sent out. CASE CLOSED. |
| Issue Date | Document | Summary |
|---|---|---|
| Nov. 10, 1983 | Agency Final Order | |
| Sep. 26, 1983 | Recommended Order | Respondent denied jurisdiction over Petitioner's activities in sawgrass area because sawgrass is a freshwater plant. No saltwater exchange takes place. |
JAMES C. DOUGHERTY vs. DEPARTMENT OF ENVIRONMENTAL REGULATION, 82-000748 (1982)
AHMAD THALJI vs SOUTHWEST FLORIDA WATER MANAGEMENT DISTRICT AND H.B.J. INVESTMENTS, 82-000748 (1982)
ARMAND J. HOULE vs. DEPARTMENT OF ENVIRONMENTAL REGULATION, 82-000748 (1982)
BAKER CUT POINT COMPANY vs. DEPARTMENT OF ENVIRONMENTAL REGULATION, 82-000748 (1982)
THE DELTONA CORPORATION vs. DEPARTMENT OF ENVIRONMENTAL REGULATION, 82-000748 (1982)
