STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CAHILL PINES & PALMS PROPERTY ) OWNERS ASSOCIATION, )

)

Petitioner, )

)

vs. ) CASE NO. 93-5916

) STATE OF FLORIDA DEPARTMENT ) OF ENVIRONMENTAL PROTECTION, )

)

Respondents. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was conducted in this case on March 3 and 4, 1994, in Key West, Florida, before Stuart M. Lerner, a duly designated Hearing Officer of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: David Paul Horan, Esquire

Horan, Horan & Esquinaldo 608 Whitehead Street

Key West, Florida 33040-6549

For Respondent: John L. Chaves, Esquire

Assistant General Counsel State of Florida Department of

Environmental Protection Office of the General Counsel Twin Towers Office Building 2600 Blair Stone Road

Tallahassee, Florida 32399-2400 STATEMENT OF THE ISSUE

Whether Petitioner should be granted the permit it has requested from the Department of Environmental Protection authorizing it to remove two plugs in the canal system that runs through the Cahill Pines and Palms subdivision in Monroe County, Florida, and if so, under what conditions, if any?

PRELIMINARY STATEMENT

On October 1 1993, Petitioner filed with the Department of Environmental Protection (hereinafter referred to as the "Department") a petition challenging the Department's determination, announced in its August 20, 1993, Notice of Permit Denial, to deny its application for a permit to remove two plugs in the canal system that runs through the Cahill Pines and Palms subdivision in Monroe County, Florida. /1

On October 14, 1993, the Department referred Petitioner's petition to the Division of Administrative Hearings (hereinafter referred to as the "Division") for the assignment of a Division Hearing Officer "to conduct all necessary proceedings required by law and to submit a recommended order to the Department." At the final hearing conducted by the Hearing Officer, the parties presented the testimony of a total of fourteen witnesses: John Larkin; William Gordon Hunt; Larry Waters; Joan Tucker; Glenn Tucker; Ross Tucker; Leo Suarez; Eric Knudson; Frank Fazzino; Greg O'Connell; Gustavo Rios; Kenneth Echternacht; Richard Hebling; and Dennis Horvath. In addition to the testimony of these witnesses, a total of 40 exhibits were offered and received into evidence.

At the close of the evidentiary portion of the hearing on March 4, 1994, the Hearing Officer advised the parties on the record that post-hearing submittals had to be filed no later than 35 days following the conclusion of the hearing. The Department and Petitioner filed proposed recommended orders on April 7, 1994, and April 11, 1994, respectively. The parties' proposed recommended orders contain, what are labelled as, "findings of fact" and "conclusions of law." These proposed "findings of fact" and "conclusions of law" have been carefully considered. The proposed "findings of fact" are specifically addressed in the Appendix to this Recommended Order.

FINDINGS OF FACT

Based upon the evidence adduced at hearing, and the record as a whole, the following Findings of Fact are made:

1. Petitioner is a property owners association.

   
   

2. Its members own property in the Cahill Pines and Palms subdivision (hereinafter referred to as "Cahill") located on Big Pine Key in township 66 south, range 29 east, in Monroe County, Florida.

   
   

3. Cahill is a primarily residential, waterfront subdivision with a man- made canal system.

   
   

4. It was platted in 1955.

   
   

5. Construction of the canal system began shortly thereafter and was completed in the early 1970's.

   
   

6. The Cahill canal system consists of six canals: a 2300 feet long and

   75 foot wide, east-west, main feeder canal that dead-ends at its eastern terminus and connects with Pine Channel at its western end /2 (hereinafter referred to as "Canal #1"); and four shorter, /3 but as wide, north-south canals which dead-end at their northern termini and either intersect with, or but for an obstruction would intersect with, Canal #1, at their southern ends (hereinafter referred to as, from west to east, "Canals #2, 3, 4, 5, and 6").

   
   

7. The approximate average water depths of the six canals are as follows: Canal #1, first 1500 feet, west to east: 17.1 feet; Canal #1, remaining 800 feet: 13.3 feet; Canal #2: 16.9 feet; Canal #3: 14.4 feet; Canal #4: 13.2 feet; Canal #5: 13.5 feet; and Canal #6: 15.3 feet.

   
   

8. At the northern end of Canal #2 is a full-service commercial marina which has been in operation for at least seven years.

9. The Cahill canal system is obstructed in two areas by earthen plugs: at the southern end of Canal #3 (hereinafter referred to as the "north plug"); and in Canal #1, approximately 1500 feet to the east of Pine Channel (hereinafter referred to as the "south plug").

   
   

10. The two plugs, which contain seagrasses, mangroves and other vegetation, are located on land that is privately owned and that has not been acquired by the federal government to be a part of the National Key Deer Refuge.

    
    

11. Because of the existence of the plugs, navigational access to the open waters of Pine Channel from the Cahill canal system is available only from Canal #2 and from that portion of Canal #1 that is to the west of the south plug (hereinafter referred to as the "open or unplugged canals"). The remainder of the canal system is closed off (hereinafter referred to as the "closed or plugged canals").

    
    

12. The open canals contain a total of 25.964 million gallons of water and the closed canals contain a total of 38.964 million gallons of water.

    
    

13. Neither the water in the open canals nor the water in the closed canals is presently of substandard quality.

    
    

14. Fish and mollusks of various types are in abundant supply in the closed canals.

    
    

15. There is a greater diversity and a larger number of living species in the open canals, however.

    
    

16. The vegetation on the lots surrounding the Cahill canal system consists primarily of Australian Pines. The lack of other vegetation has resulted in scarification and presents a problem in terms of stormwater runoff entering the canals. This is particularly true with respect to the undeveloped lots, which are unlandscaped /4 and do not have an artificial shoreline.

    
    

17. Of the 228 lots in the Cahill subdivision, approximately 73 are on the open canals (hereinafter referred to as the "open lots") and 155 are on the closed canals (hereinafter referred to as the "closed lots"). Approximately 44 of the open lots and approximately 75 of the closed lots are developed.

    
    

18. Undeveloped open lots, on the average, sell for approximately

    $50,000.00. The average selling price of undeveloped closed lots is approximately $14,000.00 or $15,000.00.

    
    

19. As a general rule, open lot residents of the Cahill subdivision, unlike their closed lot counterparts, have boats docked behind their homes.

    
    

20. There is, as might be expected, considerably more boat traffic on the open canals than on the closed canals.

21. The north and south plugs were the subject of a civil complaint filed in 1980 by the federal government in the United States District Court for the Southern District of Florida against Peace River Groveland, Inc., Charles Kinsell, Jr., and J.R. Shields. The matter was resolved by the entry of the following order by the judge assigned to the case:

    
    

    Whereas, the plaintiff, the United States of America, has filed a complaint in the

    above-styled matter, and the plaintiff and the defendant, by their respective attorneys, have each consented to the making and entry of this Final Judgment without further pleading or trial or adjudication of or finding on any issues of fact or law raised by the complaint.

    
    

    NOW, THEREFORE, without trial or adjudication of any issue of fact or law herein, and without this Final Judgment constituting

    evidence or admission by any party with respect to any issue in the pending action or in any other proceeding, and upon consent of the parties, it is hereby

    
    

    ORDERED, ADJUDGED AND DECREED as follows:

    I

    This Court has jurisdiction of the subject matter of this action and of the parties thereto.

    II

    The provisions of this Final Judgment shall be binding upon the parties jointly and severally, their successors and assigns; all directors, officers, agents, servants, and employees of the defendants.

    III

    For the purposes of this Order, all references to geographical locations shall be directed to the annotated Plat of the Cahill Pines and Palms Subdivision, Section 26 and 27, Township

    66 South, Range 29 East, Monroe County, Florida, attached to this Order as Exhibit "A".

    IV

    Plaintiff and Defendants agree that PEACE RIVER GROVELAND, INC., owned and developed Blocks 6, 7, 8, 9, 10 of Cahill Pines and Palms Subdivision, Big Pine Key, in Sections

    26 and 27, Township 66 South, range 29 East, Monroe County, Florida. During 1972 canals were excavated and plugs were left in at points "A" and "B". Between 1974 and 1979 the plugs (at Points "A" and "B") were breached two times by parties unknown. Both times the defendant, PEACE RIVER GROVELAND, INC., restored the plugs.

    V

    Defendants agree to maintain these canal plugs to the restored dimensions, unless and until an United States Army Corps of Engineers' permit to remove or otherwise alter these plugs has been granted.

    VI

    Plaintiff agrees to record this document in the official property records of Monroe County, Florida.

    VII

    Jurisdiction is retained for purpose of enabling the party to this Final Judgment to apply to this Court at any time for such further order and directions as may be necessary or appropriate for construction or carrying out of this Final Judgment, or for the modification or termination of any of the provisions thereof or for the enforcement or compliance thereof.

    
    

22. Petitioner, on several prior occasions, has unsuccessfully sought a permit from the Department to remove the plugs. Its most recent prior application was denied by final order issued March 24, 1981, which adopted "in toto" the Recommended Order that the Hearing Officer had issued following a February 6, 1981, hearing.

    
    

23. The permit application at issue in the instant case (hereinafter referred to as the "Application") was filed with the Department on July 19, 1991. It requests permission to permanently remove, to a depth of -5.5 feet N.G.V.D., the north and the south plugs, which, the Application accurately states, "are presently creating the blockages to property owners' access to Pine Channel and open water." The amount of material to be removed is considerably less than 10,000 cubic yards.

    
    

24. Accompanying the Application was a letter, dated February 9, 1991, from John Cahill to Petitioner's President, the body of which read, in pertinent part, as follows:

    
    

    In response to your letter of January 28, 1991, we have no objections to you (as President of Cahill's Pines & Palms Property Owners Association) establishing a class action to remove the two blockages of the canals in said property.

    
    

    However, some years ago we sold the parcel which includes the blockages (and the present canals). At hand I do not have the addresses of the individuals that purchased this parcel but I am sure that if you contact either:

    
    

    Eric Kip . . . .

    or

    William Bradley . . . .

    They will be able to lead you in contacting them.

    I do appreciate that if opened these canals will connect to the canals which the County of Monroe has listed as owned by the heirs

    of Agnes M. Cahill[. I]f this is the reason for contacting us, you do in fact have our permission to proceed at your expense.

    
    

    I have not written to the County regarding this matter for the above mentioned reasons.

    
    

25. The Department did not deem the Application complete until the spring of 1993, after it had received from Petitioner the results of a study of the Cahill canal system and its environs that had been done by John Larkin, an environmental consultant Petitioner had hired to perform the water quality sampling the Department required.

    
    

26. Representatives of the Department and Petitioner engaged in considerable debate regarding the methods to be employed in conducting such sampling.

    
    

27. A meeting on the matter was held on September 24, 1992, in the Department's Fort Myers office.

    
    

28. Following the meeting, Petitioner's President sent the following letter, dated November 2, 1992, to Greg O'Connell, an Environmental Supervisor II in the Department's Water Resource Regulation Section:

    
    

    In regards to our meeting on September 1992 at your office for the compliance hearing, we have concluded that D.E.R. has accepted and acknowledged the completion of the original information supplied with ou[r] application with the exception of a water sample and a hydrographic survey as outlined during our meeting.

    The test sample stations and completion with four sample stations to be submitted to Mr. Ken Echternacht, P.E. of D.E.R. in Tallahassee.

    To further update our efforts and for your benefit as Superintendent of our application file, we had a meeting of our association membership and all present unanimously agreed to continue with our application to remove two plugs in the Cahill Subdivision located in Big Pine Key, Florida.

    The financial expense of approximately

    $17,000.00 is presently being negotiated.

    Mr. John Larkin will head these two remaining items of the completeness study.

    Mr. David Horan will continue as our representative and consulting attorney and continue to handle any exceptional litigations required. We would appreciate a written response to this letter and a directive from your office to the U.S. Army

    Corps of Engineers, Miami and the Dept. of Environmental Regulation in Marathon, Florida that our processing is being continued and that our application is not suspended at this time, as directed in your letter to these offices at an early date.

    Thank you for your continued work on this case.

    
    

29. The Department responded to this November 2, 1992, letter, by sending the following letter to Petitioner's President:

    
    

    The Department received your letter on November 6, 1992 regarding the meeting held in the District's Fort Myers office on September 24, 1992. Water quality sampling and a hydrographic survey are the remaining items that prevent your application from being complete.

    As discussed in the September 24, 1992 meeting you are concerned about keeping costs down by sampling at a minimum number of stations and performing a minimum number of parameter analyses. Please be advised that the resultant data from four (4) sampling stations at unidentified locations must provide reasonable assurance that water quality will not be degraded by the proposed canal plug removal before a permit can be issued.

    All water quality sample results should be submitted to the Department's District Office at the above address.

    Application No. 441998285 remains incomplete as stated in the previous Department completeness summary letters. The Department is not pursuing denial of your application for failure to supply additional information since you have provided notification that progress is being made towards providing the remaining completeness items. Please provide the Department with an approximate date that

    the water quality data and hydrographic survey will be submitted. Until the completeness items are submitted, all processing of the application is suspended.

    If you have any questions concerning this matter, please contact Greg O'Connell at our Fort Myers office at the letterhead address or by telephone at (813) 332-6975.

    
    

30. Water column and sediment samples were collected by Larkin in or around January of 1993.

    
    

31. The samples were collected from four stations: two in the closed canals (one in Canal #3 and the other in Canal #5); one in the open canals, just to the south of the north plug; and one in Pine Channel.

32. Samples from all four stations were integrated or composited and the integrated/composited samples were then tested and analyzed.

    
    

33. The sediment samples were tested and analyzed one day after the expiration of the maximum allowable "holding time."

    
    

34. With this one exception, the collection of the samples and their testing and analysis was accomplished in a scientifically sound manner designed to obtain accurate and reliable information regarding the composition and properties of these samples.

    
    

35. It was Larkin's intention, if the testing and analysis of the integrated/composite samples revealed any "spike" (i.e., the presence of any contaminant in excess of minimum detection limits), to collect additional samples from each of the four stations and have them tested separately so as to determine from which station or stations the detected contaminant or contaminants had come.

    
    

36. The testing and analysis of the integrated/composite water column samples failed to reveal the presence of any contaminants in excess of minimum detection levels, and the results of the testing and analysis of the sediment samples, considered in conjunction with the reported visual observations that had been made regarding the outstanding transparency of the water in the Cahill canal system, reflected no abnormalities of concern. Accordingly, no additional sampling, testing or analysis was done before this information was provided to the Department.

    
    

37. In or about late February of 1993, the Department received the initial results of Larkin's study.

    
    

38. By letter dated March 25, 1993, the Department notified Petitioner's President of what it considered to be the study's shortcomings. The body of the letter read as follows:

    
    

    The Department received your water quality sampling results on February 24 and 26, 1993. The sampling methodology used to collect the samples for the following parameters is not consistent with the Department and EPA procedures:

    
    

    WATER COLUMN

    
    

    Gasoline by-products Diesel by-products Pesticide scan

    Oils and grease SEDIMENT CHEMISTRY

    Aluminum Cadmium Copper lead Zinc Arsenic

    Diesel by-products

    Pesticide scan Herbicide scan

    Total organic carbon

    
    

    Specifically the background station was composited with potential impact stations (samples collected within the plugged canals) and a station located just outside of plugged canals. The data submitted does not provide representative water column and sediment quality in the plugged canals because it was mixed with the ambient station.

    The "integrated composites" collected and analyzed provide no means to compare the potential impact areas (plugged canals) with the ambient water quality. The purpose of collecting the water quality data is to determine if the proposed opening of the plugged canal system will have an [e]ffect on the adjacent Outstanding Florida Waters. The sampling methodology utilized is invalid and does not address the purpose of this investigation. The Department cannot make a determination of what potential impacts the

    opening of the plugged canal systems will have on the adjacent Outstanding Florida Waters.

    Reasonable assurances have not been provided that ambient water quality will not be degraded by the proposed canal plug removal. The total suspended solid samples were run after the expiration of the holding time and the resultant data is invalid. Water column total organic carbon samples were collected at depths and bottom, not mid-depth and 20 cm. above bottom as requested. Oxidation reduction potential data was collected at a sample depth of 2' and 10', not at 20 cm. above the bottom as requested.

    Please resample the above parameters using methodology consistent with the Department's request or request that the Department continue to process your application with the data submitted.

    The Department has not received the hydrographic survey requested in previous completeness summaries and discussed in the September 24, 1992 meeting held in the District's Fort Myers office.

    If you have any questions concerning this matter, please contact Greg O'Connell of our Fort Myers office at the letterhead address or by telephone at (813) 332-6975.

    
    

39. Larkin, on behalf of Petitioner, responded to the Department by letter dated March 27, 1993. In his letter, Larkin argued that the sampling, testing and analytical procedures and techniques that were employed in his study were those upon which the Department and Petitioner agreed at their September 24,

    1992, meeting in Fort Myers. Larkin asserted that "[t]his agreement was formed between the agency (FDER) and the Property Owners to save on exorbitant testing costs" and that the procedures and techniques agreed upon are "proven and accepted . . . throughout all agencies and . . . widely used to accomplish cost savings." Larkin then stated the following:

    
    

    The results were that there was no indication of any pollutant in the water column. The metals were all in normal range for any background comparison. The sediments showed counts in Fluoranthene (2700 ug/kg), Silvex (less than 0.75 ug/kg) and 2,4-D (less than

    7.5 ug/kg). All parameters in the composite water column samplings were below contamination levels, even at the multiplier of 4 and found in much greater quantities throughout the Florida Keys. Consequently, no additional testing would be necessary as

    per our agreement. As indicated by your March 25, 1993 letter, it seems that you (FDER) are ignoring our compliance meeting on September 24, 1992 in regard to this issue.

    As you have stated, "the integrated composites collected and analyzed, provide no means to compare the potential impact areas (plugged canals) with the ambient water quality" is partially true. What is not stated, is that the composite water column data- at "extremely low" limits of detection- show no indication of parameters that would effect the quality of any water- anywhere- at any time, even at 4 times the minimum detection limit. Therefore, the procedure has saved the property owners several dollars in testing costs and should [as]sure F.D.E.R. that there [are] no water

    column pollutants in the area of the 4 stations, including the ambient areas. Ergo, the ambient water quality will not be degraded by the proposed canal plug removal and is even more clear to that fact in the individual testing included at the individual stations.

    In regard to the suspended solids being tested after the expiration of the holding period, please forgive the lab on record. The samples and handling of the same were completed as noted in the enclosed chain of custody record. The lab apologizes and will re-run any more TSS samples free of charge, if necessary. However, the future sampling will most likely be of better quality. As

    stated in the data sent to F.D.E.R., there was a 3" rain event just before sampling.

    As stated in the study in regard to secchi

    disc readings, the water clarity was improving. Please advise me if you want repeated sampling of the parameter or if you will accept the long

    approved method of secchi reading in lieu of

    the fact the ambient water was less clear than the closed canals.

    Water column T.O.C. samples were collected as required. The lab report only typed out the last word of the sample description. Please refer to the sample data (samples run on sample points as calibrated insitu on Jan. 13, 1993 data sheet) and also on the enclosed chain of custody record. Oxidation redux potential was not only taken as required, but was included at many other depths and stations where it was not required by

    F.D.E.R. Please refer to Jan. 13 & Jan. 18, 1993 sample data insitu sheets. Also please read about the RPD (Redux Potential- Discontinuity layer) in the conclusion section of my report.

    In light of the above facts, I request that you read the Cahill Canal Study sent to you in depth and please note that the additional

    data included in the study paints a picture of un-requiredthe Cahill canal eco-system,[ a] holistic view that show[s] the plugged canals as no threat whatsoever to the ambient waters.

    
    

    With respect to the "hydrographic survey" the Department required, Larkin promised to provide a "complete study" sometime after April 8, 1993.

    
    

40. Following this exchange of letters in March of 1993, neither Petitioner nor anyone acting on its behalf conducted any further water column or sediment sampling, testing or analysis.

    
    

41. On or about May 20, 1993, the Department conducted a field survey and appraisal of the project site.

    
    

42. During its field survey and appraisal, the Department took approximately 56 dissolved oxygen readings at 19 different stations (18 in the Cahill canal system and one in Pine Channel). /5 The highest reading was 13.3 milligrams per liter, which was obtained at a station at the northern terminus of Canal #3. There were only two readings below 5.0 milligrams per liter (a 4.5 milligrams per liter reading obtained at a station in Canal #6 and a 4.6 milligrams per liter reading obtained at a station in Canal #5). The two readings obtained from the station in Pine Channel were both 9.3 milligrams per liter.

    
    

43. The hydrographic information that Petitioner provided the Department was reviewed by Kenneth Echternacht, a hydrologist employed by the Department. After reviewing the information, Echternacht reached the following scientifically sound and credible conclusions, which he reduced to writing in a memorandum, dated June 25, 1993, that he sent to O'Connell:

    
    

    The estimated flushing for the presently open portion of the waterway was calculated to be

    14.5 days. The flushing for the open section exceeds the 4 day flushing criterion by approximately 3.6 times. Clearly, the open portion poses a potential problem to the maintenance of acceptable water quality.

    For the presently closed sections of the waterway, the calculated flushing time was found to be 38.6 days. Again, this system would pose a significant potential for contamination to adjacent open waters if opened for use. The waters behind the barrier that presently appear to pose no problem

    would clearly become a repository for contaminants associated with boat usage. Because of the exceptionally long flushing time, contaminants would build up over time. Below standard water quality throughout the waterway would be expected and, associated with this, below standard water would be exported into adjacent clean water on each ebbing tide.

    
    

    Recommendation

    
    

    Based on hydrographic considerations, the project is not permittable.

    
    

44. On August 20, 1993, the Department issued a notice of its intent to deny Petitioner's application for a permit for its plug removal project. In its notice the Department listed six proposed "changes to the project [that] may make the project permittable."

    
    

45. Removal of the plugs as proposed will result, at least temporarily, in the elimination of the vegetation presently found on the plugs. Any regrowth would take six months to a year and be in the form of seagrasses or algae.

    
    

46. Petitioner's plug removal project will also spur development in the Cahill subdivision and lead to an increase in boat traffic in the Cahill canal system, as well as in the adjacent waters of Pine Channel.

    
    

47. Such activity will result in the discharge of additional contaminants in these waterways. As Echternacht stated in his June 25, 1993, memorandum that he sent to O'Connell, "[b]ecause of the [canal system's] exceptionally long flushing time, [these] contaminants would build up over time" and result in a significant degradation of the water quality of not only the Cahill canals, but also of Pine Channel, into which Cahill canals flow.

    
    

48. This degradation of water quality will have an adverse effect on marine productivity and the conservation of fish and wildlife that now inhabit these waterways. Consequently, in the long run, the removal of the plugs will negatively impact fishing opportunities in the area.

    
    

49. On the other hand, the project will have a beneficial effect on navigation and recreational boating and related activities. It will have no impact on historical and archaeological resources.

    
    

50. Backfilling the canals to a depth of -6.0 MLW in conjunction with plug removal, as the Department suggested in its August 20, 1993, Notice of Permit Denial, would result in less deterioration of water quality than would otherwise be the case, but it would not completely solve the water quality problems caused by plug removal. Moreover, such backfilling would create an ideal habitat for the upside-down stinging jellyfish, whose presence would discourage people from using the canals for swimming and similar recreational activities. In any

    event, Petitioner has indicated that this proposed mitigative measure is unacceptable to it. Petitioner has proposed no mitigative measures of its own, although it has suggested that "future monitoring could be set up to determine any possible water quality deterioration" and if "there was any 'significant' water quality deterioration . . . the plugs could be reconstructed in their present location."

    
    

    CONCLUSIONS OF LAW

    
    

51. Before determining whether, and under what conditions, if any, it should grant an application for a dredge and fill permit, such as the one at issue in the instant case, the Department must evaluate the application in light of the provisions of Section 373.414, Florida Statutes, which provides in pertinent part as follows:

    
    

    1. [T]he department shall require the applicant to provide reasonable assurance that water quality standards applicable to waters as defined in s. 403.031(13) /6 will not be violated and reasonable assurance that such activity in, on, or over surface waters

       or wetlands, as delineated in s. 373.421(1) is not contrary to the public interest. However, if such an activity significantly degrades or is within an Outstanding Florida Water, as provided by department rule, the applicant must provide reasonable assurance that the proposed

       activity will be clearly in the public interest.

       1. In determining whether an activity, which is in, on, or over surface waters or wetlands, as delineated in s. 373.421(1), and is regulated under this part, is not contrary to the public interest or is clearly in the public interest, . . . the department shall consider and balance the following criteria:

          1. Whether the activity will adversely affect the public health, safety, or welfare or the property of others;

          2. Whether the activity will adversely affect the conservation of fish and wildlife, including endangered or threatened species,

             or their habitats;

          3. Whether the activity will adversely affect navigation or the flow of water or cause harmful erosion or shoaling;

          4. Whether the activity will adversely affect the fishing or recreational values or marine productivity in the vicinity of the activity;

          5. Whether the activity will be of a temporary or permanent nature;

          6. Whether the activity will adversely affect or will enhance historical and archaeological resources under the provisions of s. 267.061; and

          7. The current condition and relative value of functions being performed by areas affected by the proposed activity.

       2. If the applicant is unable to otherwise meet the criteria set forth in this subsection, . . . the department, in deciding to grant or deny a permit, shall consider measures proposed by or acceptable to the applicant to mitigate adverse effects which may be caused by the activity. . . .

          1. The . . . department, in deciding whether to grant or deny a permit for an activity regulated under this part shall consider

             the cumulative impacts upon surface water

             and wetlands, as delineated in s. 373.421(1), within the same drainage basin as defined in s. 373.403(9), of:

             1. The activity for which the permit is sought.

             2. Projects which are existing or

          activities regulated under this part which are under construction or projects for which permits or determinations pursuant to

          s. 373.421 or s. 403.914 have been sought.

          
          

52. The term "reasonable assurance," as used in the statute, "contemplates

    . . . a substantial likelihood that the project will be successfully implemented." Metropolitan Dade County v. Coscan Florida, Inc., 609 So.2d 644, 648 (Fla. 3d DCA 1992). The "reasonable assurances" that the statute requires must be given "before the project is started" and it is not within the Department's "province to allow a[n applicant] to proceed with a project . . .

    with no idea as to what the effect on water quality [and the public interest] will be." Id.

    
    

53. Where an application for a dredge and fill permit is contested, the burden is on the applicant to prove by a preponderance of the evidence at the administrative hearing on the matter that it is entitled to the requested permit pursuant to the foregoing statutory criteria. See Metropolitan Dade County v. Coscan Florida, Inc., 609 So.2d at 646. In determining whether the applicant has met its burden, the Department should take into consideration not only the direct impacts of the activity, but also the "'secondary'" impacts caused or enabled by the [activity]." The Conservancy, Inc. v. A. Vernon Allen Builder, 580 So.2d 772, 779 (Fla. 1st DCA 1991).

    
    

54. In the instant case, the activity for which Petitioner is seeking a permit is the removal of the two plugs that currently separate the open and closed residential canals in the Cahill subdivision. The proposed plug removal will connect the entire Cahill canal system with the open waters of Pine Channel, which connection was shown on a plat recorded prior to April 3, 1970.

    
    

55. Contrary to the argument advanced by Petitioner, however, its Application is not entitled to the "special consideration" provided in Rule 17- 312.150(5), Florida Administrative Code, "for the construction of residential canals and their connection to the categories of waters listed in [Rule] 17- 312.150(2) where such canals and connections were shown on a plat recorded prior to April 3, 1970, and where such canals and connections constitute a part of the contractual obligations of the applicant incurred pursuant to land sales contracts executed prior to April 3, 1970, and where there has been a continuing, bona fide effort by the applicant since the date of the recording of said plat to fulfill the plan of development set forth in the plat and

    undertaken by the terms of said contractual obligations." Even if the application otherwise qualified for such "special consideration," it would not be entitled to receive this "special consideration" because Petitioner has not demonstrated that it complied with the requirements of subsection (5)(d) of Rule 17-312.150, Florida Administrative Code, which provides in pertinent part as follows:

    
    

    Any person who seeks the special consideration provided in this subsection shall register with the Department within one hundred twenty

    (120) days of the effective date of this

    rule. . . . Persons not registering pursuant to this subsection shall not receive the special consideration provided herein.

    
    

    The record is devoid of any evidence that Petitioner registered for "special consideration" within the 120-day period prescribed by subsection (5)(d) of Rule 17-312.150, Florida Administrative Code; nor is there any apparent reason why Petitioner's failure to meet this registration requirement should be excused.

    
    

56. The plugs which Petitioner seeks to remove are located in man-made canals that have not been designated by Department rule as Outstanding Florida Waters. Because they are artificial waterbodies, these canals are not included in the "special waters" of the Florida Keys that the Department has designated as Outstanding Florida Waters in Rule 17-302.700(9)(i), Florida Administrative Code. Neither are they among the waters that lie within the National Key Deer Refuge, which the Department has designated as Outstanding Florida Waters in Rule 17-302.700(9)(a), Florida Administrative Code. The National Key Dear Refuge includes only those lands in townships 65 and 66 south, ranges 28, 29, and 30 east, in Monroe County that have been acquired by the federal government to be a part of the refuge. The canals in the Cahill subdivision are privately owned and therefore not a part of the National Key Deer Refuge.

    
    

57. Although none of the canals in the Cahill canal system are Outstanding Florida Waters, as designated by Department rule, the system does connect directly to one of the "special waters" of the Florida Keys that the Department has designated as an Outstanding Florida Water in Rule 17-302.700(9)(i), Florida Administrative Code, to wit: Pine Channel.

    
    

58. If the north and south plug are removed, as proposed by Petitioner, a significant degradation of this Outstanding Florida Water will result over time due to the increase in development and boating activities "caused or enabled" by the removal of the plugs. Because of the slow flushing action in the canals, the additional contaminants discharged in the canal waters as a result of these activities will accumulate and significantly degrade the quality of the water in the canals and in Pine Channel.

    
    

59. Petitioner has failed to provide reasonable assurance that state water quality standards will not be violated as a result of the removal of the north and south plugs. Proof that the closed and open portions of the Cahill canal system presently meet water quality standards does not constitute such reasonable assurance. That the canal waters are not now of substandard quality does not mean that they, and the receiving waters of Pine Channel, will not become so as a result of the increase in development and boating activities "caused or enabled" by the removal of the plugs.

60. Petitioner has also failed to provide reasonable assurance that the removal of plugs is not contrary to the public interest, much less shown that such activity is clearly in the public interest. Viewing the facts of the instant case in light of criteria set forth in Section 373.414, Florida Statutes, it appears that, on balance, the removal of the plugs will have a negative impact on the public interest.

    
    

61. Petitioner has not proposed, nor deemed acceptable, any measures that would mitigate the adverse effects of the removal of the plugs.

    
    

62. In light of the foregoing, the removal of the plugs should not be permitted.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby

RECOMMENDED that the Department of Environmental Protection enter a final order denying Petitioner's application for a dredge and fill permit to remove the north and south plugs separating the open and closed canals in the Cahill canal system.

DONE AND ENTERED in Tallahassee, Leon County, Florida, this 9th day of May, 1994.

STUART M. LERNER

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 9th day of May, 1994.

ENDNOTES

1/ Petitioner had previously requested and received from the Department an extension of time to file its petition.

2/ Pine Channel, in turn, connects with Newfound Harbor Channel.

3/ The three westernmost canals are each approximately 1175 feet long. The easternmost canal is 750 feet long. The remaining north-south canal is 1000 feet long.

4/ Landscaping with pearock is more effective than sodding as a means of combatting water quality problems associated with stormwater runoff because sodding is often accompanied by the use of pesticides and herbicides, contaminants the presence of which in the water column lowers water quality.

5/ As a part of his study, Larkin had also taken dissolved oxygen readings at different stations in the Cahill canal system and Pine Channel. Larkin's readings in the Cahill canal system ranged from a high of 10.68 milligrams per liter at a station in Canal #2 to a low of 4.80 milligrams per liter in the open portion of Canal #1. The highest Pine Channel reading he obtained was 13.70 milligrams per liter. His lowest Pine Channel reading was 4.00 milligrams per liter. In an earlier study conducted on behalf of the Florida Keys Land and Sea Trust in 1989 and 1990, the mean dissolved oxygen readings for Pine Channel in the summer and winter months were 3.87 milligrams per liter and 4.86 milligrams per liter, respectively.

6/ "Waters," as defined in Section 403.031(13), Florida Statutes, "include, but are not limited to, rivers, lakes, streams, springs, impoundments, and all other waters or bodies of water, including fresh, brackish, saline, tidal, surface, or underground waters. Waters owned entirely by one person other than the state are included only in regard to possible discharge on other property or water."

APPENDIX TO RECOMMENDED ORDER IN CASE NO. 93-5916

The following are the Hearing Officer's specific rulings on, what are labelled as, "findings of facts" in the parties' proposed recommended orders:

Petitioner's Proposed "Findings of Fact"

1. Accepted and incorporated in substance, although not necessarily repeated verbatim, in this Recommended Order.

2. First sentence: Accepted and incorporated in substance; Second sentence: Not incorporated in this Recommended Order because, even if supported by persuasive competent substantial evidence, it would add only unnecessary detail to the factual findings made by the Hearing Officer; Third sentence: Rejected as a finding of fact because it is more in the nature legal argument than a finding of fact. Moreover, it has no bearing on the outcome of the instant case.

3. Not incorporated in this Recommended Order because, even if supported by persuasive competent substantial evidence, it would have no bearing on the outcome of the instant case.

4. Rejected as a finding of fact because it is more in the nature legal argument than a finding of fact. Moreover, it has no bearing on the outcome of the instant case.

5-6. Not incorporated in this Recommended Order because, even if supported by persuasive competent substantial evidence, they would have no bearing on the outcome of the instant case.

1. Accepted and incorporated in substance.

2. First and third sentences: Rejected as findings of fact because they are more in the nature of statements of the law than findings of fact; Second sentence: Rejected because it is not supported by persuasive competent substantial evidence.

9-10. Not incorporated in this Recommended Order because, even if supported by persuasive competent substantial evidence, they would have no bearing on the outcome of the instant case.

11-14. Accepted and incorporated in substance.

1. First sentence: Accepted and incorporated in substance; Second sentence: Rejected as a finding of fact because it is more in the nature of a statement of the law than a finding of fact.

2. Accepted and incorporated in substance.

3. First through sixth sentences: Not incorporated in this Recommended Order because they would add only unnecessary detail to the factual findings made by the Hearing Officer; Remaining sentences: Rejected because they constitute unpersuasive argument. The "fears" to which Petitioner refers have not "come to pass in the subsequent twenty (20) years" because the plugs have not been removed.

4. First, second and third sentences: Not incorporated in this Recommended Order because they would add only unnecessary detail to the factual findings made by the Hearing Officer; Fourth sentence: Not incorporated in this Recommended Order because, even if true, it would have no bearing on the outcome of the instant case. Moreover, while Petitioner now claims that "the second [1980] permit denial was based on assumptions and a total lack of scientific data," there is no indication in the record that it sought judicial review of this final agency action taken by the Department in 1980.

5. To the extent that this proposed finding asserts that the Outstanding Florida Water with which the Cahill canal system directly connects is Pine Channel and not, as stated in the Department's August 20, 1993, Notice of Permit Denial, Newfound Harbor Channel, it has been accepted and incorporated in substance. To the extent that this proposed finding suggests that the Department has made a "deliberate and unconscionable attempt" to mislead the Hearing Officer regarding this matter, it has been rejected as unpersuasive argument concerning an issue having no bearing on Petitioner's entitlement to the permit it is seeking from the Department.

20-22. Accepted and incorporated in substance.

23. Not incorporated in this Recommended Order because it would add only unnecessary detail to the factual findings made by the Hearing Officer. The 1980 dissolved oxygen readings of which Petitioner is critical in this proposed finding have not been relied upon by the Hearing Officer.

24-26. Accepted and incorporated in substance.

1. To the extent that this proposed finding states that "the use of integrated composite samples is, in fact, an approved sampling technique," it has been accepted and incorporated in substance. Otherwise, it has not been incorporated in this Recommended Order because it would add only unnecessary detail to the factual findings made by the Hearing Officer.

2. First sentence: Not incorporated in this Recommended Order because it would add only unnecessary detail to the factual findings made by the Hearing Officer; Second sentence: Rejected as a finding of fact because it is more in the nature of a statement of the law than a finding of fact.

3. Rejected as unpersuasive argument.

4. Not incorporated in this Recommended Order because it would add only unnecessary detail to the factual findings made by the Hearing Officer.

5. First sentence: Accepted and incorporated in substance; Remaining sentences: Rejected because, in rendering the opinion which is the subject of these proposed findings, Hunt apparently did not take into consideration, or failed to sufficiently consider, the impact of the increased development and boating activities "caused or enabled" by the removal of the plugs.

6. Accepted and incorporated in substance.

7. Rejected because it is contrary to the greater weight of the evidence. In rendering the opinions referenced in this proposed finding, Hunt and Larkin apparently did not take into consideration, or failed to sufficiently consider, the impact of the increased development and boating activities "caused or enabled" by the removal of the plugs.

8. Accepted and incorporated in substance.

9. Rejected as unpersuasive argument. Petitioner is not seeking permission to construct another man-made canal. It is simply requesting a permit authorizing it to remove the plugs that separate existing canals. Therefore, that man-made canals may "be considered a biological improvement"

   because "the same environment would be lifeless without [them]," as stated in the Chesher Canal Survey (hereinafter referred to as the "Survey"), is of no significance to the instant case. In any event, it would be inappropriate to base a finding of fact exclusively upon this statement from the Survey inasmuch as the Survey constitutes hearsay evidence. See Green v. Goldberg, 630 So.2d 606, 609 (Fla. 4th DCA 1993)("[u]nder section 90.706, Florida Statutes (1991), authoritative publications can only be used during the cross-examination of an expert and not to bolster the credibility of an expert or to supplement an opinion of the doctor which has already been formed;" "Section 90.706 does not allow statements in a learned treatise to be used as substantive evidence since the treatise is hearsay if it is offered as substantive evidence").

10. Rejected as unpersuasive argument. That the canal waters are not now of substandard quality does not mean that they, and the receiving waters of Pine Channel, will not become so as a result of the increase in development and boating activities "caused or enabled" by the removal of the plugs.

37-38. Not incorporated in this Recommended Order because they would add only unnecessary detail to the factual findings made by the Hearing Officer.

1. Accepted and incorporated in substance.

2. Rejected as unpersuasive argument. The Hearing Officer cannot rely upon the statement from the Survey to which Petitioner refers and recites in this proposed finding as substantive evidence. See Green v. Goldberg, 630 So.2d at 609.

3. First and second sentences: Rejected because it would be inappropriate to base a finding of fact exclusively upon the statement from the Nature Conservancy report referenced in this proposed finding inasmuch as the report constitutes hearsay evidence. See Green v. Goldberg, 630 So.2d at 609; Third sentence: Not incorporated in this Recommended Order because it would add only unnecessary detail to the factual findings made by the Hearing Officer; Fourth sentence: Not incorporated in this Recommended Order because, even if true, it would not alter the outcome of the instant case.

4. First and second sentences: Rejected because they are contrary to the greater weight of the evidence. Although the "four-day flushing criterion" may not be codified in Florida Statutes or the Department's rules, it is, as Echternacht testified, a "scientific fact;" Third sentence: Accepted and incorporated in substance; Remaining sentences: Not incorporated in this Recommended Order because, even if true, they would not alter the outcome of the instant case. Even assuming, as Petitioner asserts, that "if the canal plugs are removed, the entire canal would flush in 14.5 days," reasonable assurance has not been given that, in this time, the additional contaminants discharged in the canal waters as a result of the increase in development and boating activities attributable to the removal of the plugs will not accumulate and significantly degrade the quality of the water in the canals and in Pine Channel to substandard levels.

5. Not incorporated in this Recommended Order because, even if true, it would not alter the outcome of the instant case. Even assuming, as Petitioner asserts, that "if the canal plugs are removed, the entire canal system would have a 14.5 day flushing cycle," reasonable assurance has not been given that, in this time, the additional contaminants discharged in the canal waters as a result of the increase in development and boating activities attributable to the removal of the plugs will not accumulate and significantly degrade the quality of the water in the canals and in Pine Channel to substandard levels. That a "14.5 day flushing cycle" apparently has been sufficient to maintain the water quality in the open canals to date does not constitute such reasonable assurance.

6. First through fourth sentences: Accepted and incorporated in substance; Fifth and sixth sentences: Rejected because the Hearing Officer cannot rely upon the statement from the Survey to which Petitioner refers and

   recites in this proposed finding as substantive evidence. See Green v. Goldberg, 630 So.2d at 609.

7. First, second and third sentences: Rejected because the Hearing Officer cannot rely upon the statement from the Survey to which Petitioner refers and recites in this proposed finding as substantive evidence. See Green

   v. Goldberg, 630 So.2d at 609; Fourth sentence: Accepted and incorporated in substance.

8. Accepted and incorporated in substance.

9. First and second sentences: Rejected as findings of fact because they are more in the nature of legal argument than findings of fact; Third sentence: Rejected as unpersuasive argument.

48-49. Rejected as findings of fact because they are more in the nature of legal argument than findings of fact.

1. First sentence: Rejected as a finding of fact because it is more in the nature of legal argument than a finding of fact; Second sentence: Rejected because it is contrary to the greater weight of the evidence.

2. First sentence: Rejected as a finding of fact because it is more in the nature of legal argument than a finding of fact; Second and third sentences: Accepted and incorporated in substance.

3. First, third and fourth sentences: Rejected as findings of fact because they are more in the nature of legal argument than findings of fact; Second sentence: Rejected because it is contrary to the greater weight of the evidence.

4. First sentence: Rejected as a finding of fact because it is more in the nature of legal argument than a finding of fact; Second sentence: To the extent that this proposed finding states that the plug removal is permanent in nature, it is accepted and incorporated in substance. To the extent that it states that the plug removal, on balance, constitutes an enhancement, it has been rejected because it is contrary to the greater weight of the evidence.

5. Before semi-colon: Rejected as a finding of fact because it is more in the nature of legal argument than a finding of fact; After semi-colon: Accepted and incorporated in substance.

6. To the extent that this proposed finding states that "[t]he seventh and (final) criteria to balance is Section 373.415(1)(a)(7)," it has been rejected as a finding of fact because it is more in the nature of legal argument than a finding of fact. Otherwise, it has been rejected because it is contrary to the greater weight of the evidence.

56-57. Rejected as findings of fact because they are more in the nature of legal argument than findings of fact.

1. Rejected as unpersuasive argument. The "fears" to which Petitioner refers "have not been realized in over a quarter of a century of occupation and use of the open portion of the Cahill canal subdivision" because the plugs have not been removed.

2. To the extent that this proposed finding states that "in the open and closed canals turbidity is better than ambient and bacteriological quality is better than ambient," it has not been incorporated in this Recommended Order because, even if true, it would not alter the outcome of the instant case. To the extent that this proposed finding states that "opening the presently closed canals would store and breed more species and greater species diversity than now exists," it has been rejected because it is contrary to the greater weight of the evidence.

3. Before first semicolon: Accepted and incorporated in substance; After first semicolon, to second semicolon: Not incorporated in this

   Recommended Order because, even if supported by persuasive competent substantial evidence, it would not alter the outcome of the instant case; After second semicolon: To the extent that this proposed finding states that "the transparency measured by secchi disc is better than ambient," it has not been

   incorporated in this Recommended Order because, even if supported by persuasive competent substantial evidence, it would not alter the outcome of the instant case. To the extent that this proposed finding states that "transparency could be expected to improve upon removal of the plugs," it has been rejected because it is contrary to the greater weight of the evidence.

4. Rejected because it is contrary to the greater weight of the evidence.

5. First sentence: Accepted and incorporated in substance; Second sentence: Rejected because it is contrary to the greater weight of the evidence; Third sentence: Rejected as a finding of fact because it is more in the nature of legal argument than a finding of fact.

6. First sentence: Rejected because it is contrary to the greater weight of the evidence; Second and third sentences: Accepted and incorporated in substance.

7. Rejected as a finding of fact because it is more in the nature of legal argument than a finding of fact.

8. First and fourth sentences: Accepted and incorporated in substance; Second sentence: Not incorporated in this Recommended Order because, even if supported by the greater weight of the evidence, it would have no bearing on the outcome of the instant case; Third and fifth sentences: Rejected because they are contrary to the greater weight of the evidence.

9. To the extent that this proposed finding suggests that Petitioner deems unacceptable the changes proposed by the Department, it has been accepted and incorporated in substance. To the extent that it goes beyond this suggestion, it has not been incorporated in this Recommended Order because it would add only unnecessary detail to the factual findings made by the Hearing Officer.

10. First sentence: Not incorporated in this Recommended Order because, even if supported by persuasive competent substantial evidence, it would have no bearing on the outcome of the instant case; Second and third sentences: Rejected as findings of fact because they are more in the nature of legal argument than findings of fact.

68-69. Not incorporated in this Recommended Order because, even if supported by persuasive competent substantial evidence, they would have no bearing on the outcome of the instant case.

The Department's Proposed "Findings of Fact"

1. To the extent that this proposed finding suggests that the Cahill canal system connects directly to Newfound Harbor Channel and that Newfound Harbor Channel is within the National Key Deer Refuge, it has been rejected because it is not supported by persuasive competent substantial evidence. Otherwise, it has been accepted and incorporated in substance.

2. Rejected as a finding of fact because it is more in the nature of a statement of the law than a finding of fact.

3. Before comma: Accepted and incorporated in substance; After comma:

To the extent that this proposed finding suggests that the Cahill canal system connects directly to Newfound Harbor Channel, it has been rejected because it is not supported by persuasive competent substantial evidence. To the extent that this proposed finding states that the waters of "Newfound Harbor (Pine) Channel [are among the] special waters of the state," it has been rejected as a finding of fact because it is more in the nature of legal argument than a finding of fact.

4-5. Rejected as findings of fact because they are more in the nature of legal argument than findings of fact.

1. First sentence: Accepted and incorporated in substance; Second sentence: Rejected as a finding of fact because it is more in the nature of legal argument than a finding of fact.

2. Accepted and incorporated in substance.

3. Rejected as a finding of fact because it is more in the nature of legal argument than a finding of fact.

4. First sentence: To the extent that this proposed finding suggests that the "main feeder canal" connects directly to Newfound Harbor Channel, rather than Pine Channel, it has been rejected because it is not supported by persuasive competent substantial evidence; Second sentence: Rejected as a finding of fact because it is more in the nature of legal argument than a finding of fact.

10-11. Accepted and incorporated in substance.

12-13. Not incorporated in this Recommended Order because they would add only unnecessary detail to the factual findings made by the Hearing Officer.

1. Accepted and incorporated in substance.

2. Not incorporated in this Recommended Order because, even if supported by persuasive competent substantial evidence, it would not alter the outcome of the instant case.

3. Rejected because it is not supported by persuasive competent substantial evidence.

4. First sentence: Accepted and incorporated in substance; Second sentence: To the extent that this proposed finding asserts that the "main feeder canal" and "Newfound Harbor (Pine) Channel" are Outstanding Florida Waters, they have been rejected as findings of fact because they are more in the nature of legal argument than findings of fact. To the extent that this proposed finding suggests that the "main feeder canal" connects directly to Newfound Harbor Channel, rather than Pine Channel, it has been rejected because it is not supported by persuasive competent substantial evidence. Otherwise, it has been accepted and incorporated in substance.

5. Accepted and incorporated in substance.

6. To the extent that this proposed finding states that the closed canals in the Cahill canal system contain 38,964, as opposed to 38.964, million gallons of water, it has been rejected because it is not supported by persuasive competent substantial evidence. To the extent that this proposed finding asserts that the waters to which the Cahill canal system connects are Outstanding Florida Waters, it has been rejected as a finding of fact because it is more in the nature of legal argument than a finding of fact. Otherwise, it has been accepted and incorporated in substance.

7. First sentence: Rejected as a finding of fact because it is more in the nature of legal argument than a finding of fact; Second sentence: To the extent that this proposed finding asserts that "Newfound Harbor (Pine) Channel .

. is designated as Florida Keys Special Waters under rule 17-302.700(9)(i)," it has been rejected as a finding of fact because it is more in the nature of legal argument than a finding of fact. To the extent that it asserts that the unplugging of the canals will impact Pine Channel, it has been accepted and incorporated in substance.

21-23. Accepted and incorporated in substance.

1. First sentence: Accepted and incorporated in substance; Second sentence: Not incorporated in this Recommended Order because, even if supported by persuasive competent substantial evidence, it would not alter the outcome of the instant case.

2. Accepted and incorporated in substance.

3. Rejected because it is contrary to the greater weight of the evidence.

4. Accepted and incorporated in substance.

5. Not incorporated in this Recommended Order because, even if supported by persuasive competent substantial evidence, it would not alter the outcome of the instant case.

29-31. Accepted and incorporated in substance.

1. First sentence: Accepted and incorporated in substance; Second sentence: To the extent that this proposed finding suggests that the sediment samples were tested and analyzed one day after the expiration of the maximum allowable holding time, it has been accepted and incorporated in substance. Otherwise, it has been rejected because it is contrary to the greater weight of the evidence.

2. Accepted and incorporated in substance.

3. First sentence: Accepted and incorporated in substance; Second sentence: Rejected because it would add only unnecessary detail to the factual findings made by the Hearing Officer.

4. Accepted and incorporated in substance.

5. First and second sentences: Rejected because they are contrary to the greater weight of the evidence; Third sentence: Accepted and incorporated in substance.

37-41. Accepted and incorporated in substance.

42-43. Not incorporated in this Recommended Order because they would add only unnecessary detail to the factual findings made by the Hearing Officer.

1. Rejected as a finding of fact because it is more in the nature of legal argument than a finding of fact.

2. Accepted and incorporated in substance.

3. Not incorporated in this Recommended Order because they would add only unnecessary detail to the factual findings made by the Hearing Officer.

4. Rejected as a finding of fact because it is more in the nature of a statement of the law than a finding of fact.

5. To the extent that this proposed finding suggests that the Cahill canal system connects directly to Newfound Harbor Channel and that Newfound Harbor Channel is within the National Key Deer Refuge, it has been rejected because it is not supported by persuasive competent substantial evidence. Otherwise, it has been accepted and incorporated in substance.

49-53. Accepted and incorporated in substance.

54. Not incorporated in this Recommended Order because they would add only unnecessary detail to the factual findings made by the Hearing Officer.

55-56. Accepted and incorporated in substance.

57. Not incorporated in this Recommended Order because it would add only unnecessary detail to the factual findings made by the Hearing Officer.

58-60. Rejected as findings of fact because they are more in the nature of legal argument than findings of fact.

1. Accepted and incorporated in substance.

2. To the extent that this proposed finding states that the waters of "Newfound Harbor (Pine) Channel" are among the waters of the state designated as "Outstanding Florida waters (Special Waters of the State,)" it has been rejected as a finding of fact because it is more in the nature of legal argument than a finding of fact. Otherwise, it has been accepted and incorporated in substance.

3. Accepted and incorporated in substance.

4. Rejected because it is contrary to the greater weight of the evidence.

5. To the extent that this proposed finding states that "Newfound Harbor (Pine) Channel" has been designated by the Department as an "Outstanding Florida Water and Special Waters of the State," it has been rejected as a finding of fact because it is more in the nature of legal argument than a finding of fact. To the extent that this proposed finding asserts that the removal of the plugs will not have a beneficial effect on recreational boating and related activities, it has been rejected because it is contrary to the greater weight of the evidence. Otherwise, it has been accepted and incorporated in substance.

6. To the extent that this proposed finding suggests that the Cahill canal system connects directly to Newfound Harbor Channel, it has been rejected because it is not supported by persuasive competent substantial evidence. To the extent that this proposed finding states that "Newfound Harbor (Pine)

Channel" has been designated by the Department as an "Outstanding Florida Water and Special Waters of the State," it has been rejected as a finding of fact because it is more in the nature of legal argument than a finding of fact.

Otherwise, it has been accepted and incorporated in substance.

67-68. Accepted and incorporated in substance.

COPIES FURNISHED:

David Paul Horan, Esquire Horan, Horan & Esquinaldo 608 Whitehead Street

Key West, Florida 33040-6549

John L. Chaves, Esquire

Department of Environmental Protection Office of the General Counsel

Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32399-2400

Virginia B. Wetherell, Secretary Department of Environmental Protection Twin Towers Office Building

2600 Blair Stone Road Tallahassee, Florida 32399-2400

Kenneth Plante, General Counsel Department of Environmental Protection Office of the General Counsel

Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32399-2400

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

ALL PARTIES HAVE THE RIGHT TO SUBMIT WRITTEN EXCEPTIONS TO THIS RECOMMENDED ORDER. ALL AGENCIES ALLOW EACH PARTY AT LEAST 10 DAYS IN WHICH TO SUBMIT WRITTEN EXCEPTIONS. SOME AGENCIES ALLOW A LARGER PERIOD OF TIME WITHIN WHICH TO SUBMIT WRITTEN EXCEPTIONS. YOU SHOULD CONTACT THE AGENCY THAT WILL ISSUE THE FINAL ORDER IN THIS CASE CONCERNING AGENCY RULES ON THE DEADLINE FOR FILING EXCEPTIONS TO THIS RECOMMENDED ORDER. ANY EXCEPTIONS TO THIS RECOMMENDED ORDER SHOULD BE FILED WITH THE AGENCY THAT WILL ISSUE THE FINAL ORDER IN THIS CASE.

Docket for Case No: 93-005916

Orders for Case No: 93-005916