STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
BRENDA B. SHERIDAN, )
)
Petitioner, )
)
and )
)
SAVE THE MANATEE CLUB, )
)
Intervenor, )
)
vs. ) Case No. 98-3901
) DEEP LAGOON BOAT CLUB, LTD., )
d/b/a/ DEEP LAGOON MARINA and ) DEPARTMENT OF ENVIRONMENTAL ) PROTECTION, )
)
Respondents. )
) BRENDA B. SHERIDAN, )
)
Petitioner, )
)
vs. ) Case No. 98-5409
) DEEP LAGOON BOAT CLUB, LTD., ) and DEPARTMENTAL OF ) ENVIRONMENTAL PROTECTION, )
)
Respondents. )
)
RECOMMENDED ORDER
Robert E. Meale, Administrative Law Judge of the Division of Administrative Hearings, conducted the final hearing in Fort Myers, Florida, on February 11 and May 3-4, 1999.
APPEARANCES
For Petitioner: T. Elaine Holmes, Attorney
14502 North Dale Mabry, Suite 200
Tampa, Florida 33618
For Intervenor: David Gluckman
Gluckman and Gluckman
541 Old Magnolia Road Crawfordville, Florida 32327
For Respondent Deep Lagoon Boat Club, Ltd.:
Matthew D. Uhle Humphrey & Knott, P.A. 1625 Hendry Street
Fort Myers, Florida 33901
For Respondent Department of Environmental Protection: Francine M. Ffolkes
Senior Assistant General Counsel Department of Environmental Protection 3900 Commonwealth Boulevard
Mail Station 35
Tallahassee, Florida 32399-3000 STATEMENT OF THE ISSUES
The issue in DOAH Case No. 98-3901 is whether Respondent Deep Lagoon Boat Club, Ltd., is entitled to a maintenance dredging exemption from environmental resource permitting. The issue in DOAH Case No. 98-5409 is whether Respondent Deep Lagoon Boat Club, Ltd., is entitled to an environmental resource permit for the construction of a surface water management system.
PRELIMINARY STATEMENT
Petitioner commenced DOAH Case No. 98-3901 by filing on June 17, 1998, an Amended Petition to Intervene. The amended petition alleges that Deep Lagoon Boat Club, Ltd., notified Respondent Department of Environmental Protection of its intent
to maintenance dredge to -7 feet NGVD and fill internal canals of the Deep Lagoon Marina and to unload the spoil on adjacent uplands. The amended petition alleges that the proposed activity
does not comply with state water quality standards and that the water quality in the Deep Lagoon Marina is very poor due to runoff from adjacent highways and agricultural operations. The amended petition alleges that the affected waters support a large population of manatees.
The amended petition alleges that Respondent Deep Lagoon Boat Club, Ltd., is required to ensure a net improvement to water quality in the internal canals of the Deep Lagoon Marina in accordance with the original permit issued on October 9, 1995; the proposed activity is not exempt from meeting water quality standards and the requirements of the original permit; the proposed activity will lengthen the flushing time of internal canals and further degrade water quality; the proposed activity will impair, pollute, and injure the waters, manatee habitat, other natural resources in and surrounding the Deep Lagoon Marina, and other natural resources in the State of Florida, contrary to Section 372.072, et seq., Florida Statutes; Respondent Deep Lagoon Boat Club, Ltd., has not provided sufficient assurance that the spoil material will be removed and deposited on a self-contained upland spoil site that will prevent the escape of the spoil material into the waters of the State of Florida, as required by Section 403.813, Florida Statutes; Respondent Deep Lagoon Boat Club, Ltd., has not provided sufficient assurance that the proposed activity will not significantly impact previously undisturbed natural areas, as
required by Section 403.813, Florida Statutes; Respondent Department of Environmental Protection is not authorized to determine that the proposed activity is exempt from the need for an environmental resource permit because the proposed activity will not ensure net improvement to water quality in the Deep Lagoon Marina or the proposed activity will further impair and pollute Florida waters already known to violate applicable water quality standards; and the proposed activity is required, and fails, to meet the criteria for activities in surface waters and wetlands, as provided in Section 373.414, Florida Statutes.
By Petition to Intervene filed September 4, 1998, in DOAH Case No. 98-3901, Intervenor adopted the allegations of Petitioner and alleged additionally that the proposed activity is not exempt because it fails to meet the criteria of Section 403.813(2)(f), Florida Statutes. Intervenor alleged that the proposed activity fails to comply with Section 370.12(2)(d), Florida Statutes, as required by Section 403.813(2)(f), Florida Statutes, because the dredging will allow the marina to attract more and larger motorboats, which will endanger the manatees using the area.
Petitioner commenced DOAH Case No. 98-5409 by filing on December 8, 1998, a Petition to Intervene and Request for Formal Hearing. The petition alleges that Respondent Department of Environmental Protection proposes to issue a permit to Respondent
Deep Lagoon Boat Club, Ltd., for the construction of a surface water management system at a commercial marina.
The petition alleges that the proposed activity fails to provide for the disposal of sludge, waste, wastewater, and other materials to be produced by the system. The petition alleges that the proposed activity permits the discharge of contaminants and materials into the waters of the Deep Lagoon Marina, which do not meet Florida and federal water quality standards, and adjacent waters of the State of Florida. The petition alleges that the proposed activity must meet applicable water quality standards, as provided by Sections 373.413, et seq., Florida Statutes. The petition alleges that the affected waters support a large manatee population and constitute critical manatee habitat. The petition alleges that neither Respondent Department of Environmental Protection nor any federal agency has issued a certificate that the discharge from the proposed activity will comply with applicable Florida and federal laws.
The petition alleges that the proposed activity will cause or contribute to a violation, or the continuation of a violation, of EPA-approved state water quality standards; the construction and operation of the proposed surface water management system will impair, pollute, and injure the waters, critical manatee habitat, and other natural resources in and surrounding the Deep Lagoon Marina, the Caloosahatchee River, Deep Lagoon, and the State, in violation of Sections 373.413, et seq., Florida
Statutes; and Respondent Deep Lagoon Marina has not provided reasonable assurance that the proposed activity will not adversely impact public health, fish and wildlife, or adjacent waters, under Section 373.4142, Florida Statutes.
At the hearing, Petitioner called seven witnesses and offered into evidence 30 exhibits. Intervenor called one witness and offered into evidence six exhibits. Respondent Deep Lagoon Boat Club, Ltd., called five witnesses and offered into evidence
11 exhibits, including a late-filed copy of an Army Corps of Engineers permit modification, which is admitted. Respondent Department of Environmental Protection called three witnesses and offered into evidence nine exhibits. The Administrative Law Judge admitted one exhibit, the 1995 Basis of Review of the South Florida Water Management District. All exhibits were admitted except Petitioner Exhibits 25, 26, and 29; and Intervenor Exhibit
The parties proffered all but Petitioner Exhibits 25 and 26. The Administrative Law Judge also took official notice of all statutes, rules, court cases, and commonly used dictionaries.
The court reporter filed the Transcript on June 17, 1999.
FINDINGS OF FACT
The Parties
Respondent Deep Lagoon Boat Club, Ltd. (Applicant), owns and operates Deep Lagoon Marina. In DOAH Case No. 98-3901, Petitioner and Intervenor challenge Applicant's claim of an exemption to maintenance dredge three canals serving the marina.
In DOAH Case No. 98-5409, Petitioner challenges Applicant's request for an environmental resource permit to construct and operate a surface water management system on the uplands on which the marina is located.
By stipulation, Petitioner has standing.
Intervenor is a nonprofit organization of natural persons, hundreds of whom reside in Lee County. The primary purpose of Intervenor is to protect manatees and their habitat. Many of the members of Intervenor use and enjoy the waters of the State of Florida, in and about Deep Lagoon Marina, and would be substantially affected by an adverse impact to these waters or associated natural resources, including manatees and their habitat.
Deep Lagoon Marina is within the jurisdiction of the South Florida Water Management District (SFWMD). By agreement with SFWMD, Respondent Department of Environmental Protection (collectively, with the predecessor agency, DEP) is the agency with permitting jurisdiction in DOAH Case No. 98-5409.
The Marina
Deep Lagoon is a short, largely mangrove-lined waterway that runs north into the Caloosahatchee River. The Caloosahatchee River runs west from Lake Okeechobee past Fort Myers to the Gulf of Mexico.
Deep Lagoon Marina is on Deep Lagoon, less than one-half mile from the Caloosahatchee River. Deep Lagoon Marina comprises
uplands and three canals adjoining MacGregor Boulevard south of downtown Fort Myers. Deep Lagoon Marina presently consists of 61 wet slips, 200 dry slips, and other marina-related buildings.
One of Applicant's predecessors in interest dredged the three canals in the 1950s or 1960s, and a marina has existed at this location since that time. As a result of a purchase in 1997, Applicant owns the uplands and either owns the submerged bottoms of the canals or has a legitimate claim to such ownership.
The attorney who examined the title at the time of the 1997 conveyance testified that the canals are entirely landward of the original mean high water line, so that the then-owner excavated the canals out of privately owned upland. Thus, the attorney opined that the canal bottom is privately owned.
Some question may exist as to the delineation of the historic mean high water line, especially regarding its location relative to the waterward edge of the red mangrove fringe, which DEP would consider part of the historic natural waterbody. There may be some question specifically concerning title to the bottom of the northernmost canal where it joins Deep Lagoon. However, the proof required of Applicant for present purposes is considerably short of the proof required to prove title, and the attorney's testimony, absent proof to the contrary, is sufficient to demonstrate the requisite ownership interest to seek the exemption and permit that are the subject of these cases.
From north to south, Deep Lagoon Marina comprises the north canal, which is about 1200 feet long and bounded on the north by a red mangrove fringe 10-20 feet wide; a peninsula; the central canal, which is also known as the central or main basin and is roughly the same length as the north canal; a shorter peninsula; and the south canal, which is about half the length of the central canal and turns to the southeast at a 45-degree angle from the midway point of the central canal. The three canals are dead-end canals, terminating at their eastern ends a short distance from MacGregor Boulevard.
Manatees and Boating
The Caloosahatchee River is critical habitat for the endangered West Indian manatee. Up to 500 manatees use the river during the winter. When, during the winter, the water cools, the animals congregate in waters warmed by the thermal discharge from a power plant about 13 miles upstream of Deep Lagoon. When, during the winter, the water warms, the manatees swim downstream, past and into Deep Lagoon searching for food.
Manatees frequently visit Deep Lagoon. It is one of the few places between the power plant and the Gulf where manatees can find a quiet place, relatively free of human disturbance, to rest and feed.
Within Deep Lagoon, the Iona Drainage District ditch runs parallel to the north canal, separated from the canal by the previously described mangrove fringe. The Iona Drainage District
ditch empties into Deep Lagoon just north of the mouth of the north canal. Manatees frequently visit the ditch because it is a seasonal source of freshwater, which the manatees drink.
Manatees visit the north canal due to its moderate depths and proximity to the freshwater outfalls of the Iona Drainage District ditch.
Manatee mortality from watercraft is extremely high in the immediate vicinity of Deep Lagoon, and the mortality rate has increased in recent years. The rate of manatee deaths from collisions with watercraft has increased with the popularity of motorboating. Boat registrations in Lee County rose from 13,000 in 1974 to 36,000 in 1997. The potential for mitigation offered by the enactment of speed zones has been undermined by the fact that nearly half of the boaters fail to comply with the speed limits.
Water Quality
The Caloosahatchee River is laden with sediments, partly due to intermittent discharges from Lake Okeechobee. Seagrass in the riverbottom cannot grow in water much deeper than four feet. Some seagrass grows at the mouth of Deep Lagoon, but little seagrass extends into the lagoon itself.
The water quality in the canals is very poor for dissolved oxygen and copper. Applicant stipulated that the water quality in Deep Lagoon violates state standards for dissolved oxygen, copper, and coliform bacteria.
In 1997, the canals violated water quality standards for dissolved oxygen nearly each time sampled during the wet season and one-third of the times sampled during the dry season. The dissolved oxygen levels violated even the lower standards for Class IV agricultural waters two-thirds of the times sampled during the wet season.
In 1997, the canals violated water quality standards for copper in the water column each time sampled during the wet season and two-thirds of the times sampled during the dry season. During three of the dry season samplings, copper levels were 20 to 30 times lawful limits. The three lowest wet season copper levels were double lawful limits.
Copper is a heavy metal that is toxic to a wide range of marine organisms. Copper is applied to boat hulls to prevent marine life from attaching to the hulls.
In 1997, the canals violated water quality standards for total coliform bacteria (for any single reading) three of the
60 times sampled during the dry season and one of the 56 times sampled during the wet season. The canals violated the more relaxed, 20-percent standard (which is violated only if 20 percent of the readings exceed it) during the wet season, but not during the dry season.
In 1997, the canals violated water quality standards for lead in the water column in one sample (by 25 percent) out of 36, but did not violate water quality standards for oil and
grease or fecal coliform bacteria. Results of testing for mercury in the water column (as opposed to sediments) are not contained in the record.
As compared to 1987, the water quality in the canals has improved in all but one important respect. In 1987, the water column readings for copper were five to six times higher than the highest 1997 reading. In 1987, the total coliform bacteria were too numerous to count because the colonies had grown together in the sample.
However, comparing the April 1987 data with the May 1997 data for the same approximate times of day and the same locations, the dissolved oxygen levels in the three canals have declined dramatically in the last 10 years. Ten years ago, in a one-day sampling period, there were no reported violations; ten years later, in a one-day sampling period, there were four violations. Even worse, the amount of dissolved oxygen in the water during daylight hours has been halved in the last 10 years with a smaller decrease during nighttime hours.
Original Permit
There are three types of permits relevant to these cases. The first is a dredge and fill permit (sometimes referred to in the record as a wetland resource permit or water resource permit)(DAF permit). The second is a surface water management (sometimes referred to in the record as a management and storage of surface water (MSSW) permit or stormwater management
permit)(SWM permit). The third is an environmental resource permit (ERP).
Several years ago, responding to a mandate from the Legislature, DEP and the water management districts consolidated DAF permits, which historically were issued by DEP, and SWM permits, which historically were issued by the water management districts, into ERPs. At the time of this change, DEP adopted, within the jurisdictional areas of each water management district, certain of the rules of each district.
In 1988, DEP issued a DAF permit to Applicant's predecessor in title for additional wet slips (as modified, the Original Permit). Due partly to the likelihood of the replacement of some older, smaller slips with larger slips, there is some uncertainty as to the precise number of wet slips that Applicant would be able to construct under the Original Permit. However, Applicant would be able to construct approximately
89-113 new wet slips, with an additional 14,440 square feet of overwater decking, so as to raise its marina capacity to 150-174 wet slips. Applicant also plans to construct 227 dry slips, so as to raise its marina capacity to 427 dry slips, and add 115,000 square feet of buildings, including a restaurant.
In general, the Original Permit authorizes Applicant
to renovate and expand an existing marina from 61 wet slips to 174 wet slips by: excavating 0.358 ac of uplands to create a flushing canal, installing 375 linear feet of seawall along the sides of the flushing canal, excavating 2.43 ac of submerged bottom
to remove contaminated sediments, backfilling
2.41 acres of the dredged area (the main basin and south canal to -7 ft. MLW and the north canal to -6 ft. MLW) with clean sand, renovating the existing 61 slips, and constructing an additional 14,440 square feet of overwater decking for 113 new slips, providing after-the-fact authorization for construction of 2 finger piers, creating a
400 sq. ft. mangrove fringe, constructing 180 linear feet of seawall in the vicinity of the mangrove fringe, and relocating and upgrading fueling facilities.
The record contains various references to "MLW" or "mean low water," "MHW" or "mean high water," and "NGVD" or "National Geodetic Vertical Datum." The drawings attached to the Original Permit state that MHW equals 0.96 feet NGVD and MLW equals about 0.40 feet NGVD.
The Original Permit authorizes activities to proceed in three phases:
First, the majority of the water quality improvement measures will be implemented as required in Specific Condition 5. Second, the over water docking structures will be constructed and the fueling facilities will be upgraded and relocated as required in Specific Conditions 6 and 7. Third, the new slips will be occupied in accordance with the phasing plan in Specific Condition 9.
Specific Condition 5 imposes several requirements designed "to ensure a net improvement in water quality." Among these requirements is that Applicant must obtain the ERP that is the subject of DOAH Case No. 98-5409 (New Permit). Specific Condition 5 states:
In order to ensure a net improvement to water quality within the basin, the construction of
any new docking structures or installation of any new pilings shall not occur until the below-listed conditions (A-K) have been
met. . . .
A baseline water quality study . . ..
A stormwater treatment system providing treatment meeting the specifications of Florida Administrative Code 40E-4 for all discharges into the basins from the project site shall be constructed. . . .
The boat wash area shall be re-designed and constructed as shown on Sheets 23 and 23A. All water in the washdown area shall drain into the catch basin of the wastewater treatment system shown on Sheet 23. The water passing through the wastewater treatment system shall drain to the stormwater management system which was previously approved by the South Florida Water Management District. The filters of the wastewater treatment system shall be maintained in functional condition. Material cleaned from the filter shall be disposed of in receptacles maintained specifically for that purpose and taken to a sanitary landfill. This system shall be maintained in functional condition for the life of the facility. [As cited, this subparagraph contains modifications stated in a letter dated March 26, 1997, from DEP to Applicant's predecessor in interest.]
Contaminated sediments shall be dredged from the areas shown on Sheets 5 and 7 of 23. A closed-bucket clam shell dredge shall be used. The north canal shall be dredged to at least -9.9 feet MLW and backfilled with clean sand to -6 feet MLW. The [main] basin shall be dredged to at least -7.3 feet MLW and backfilled with clean sand to -7 feet MLW. The south canal shall be dredged to at least
-10.5 feet MLW and backfilled with clean sand to at least -7.0 feet MLW. Backfilling shall be completed within 120 days of completion of dredging. . . . The sediments shall be placed directly in sealed trucks, and removed to a self-contained upland disposal site
which does not have a point of discharge to waters of the state.
A channel, 260 ft. long, 60 ft. wide, with a bottom elevation of -4.5 ft. MLW shall be excavated between the north canal and the main basin to improve flushing.
* * *
K. Upon completion [of] conditions A-J above, renovation of the existing 61 wet slips and construction of the 113 additional wet slips may proceed with the understanding that construction of all 113 additional slips is at the risk of the permittee and that if the success criteria in the monitoring and occupancy program are not met, removal of all or part of the additional slips may be required by the Department.
Specific Condition 8 addresses the phasing of occupancy of the wet slips. Specific Condition 8 provides:
Occupancy of the additional 113 wet slips shall occur in two phases, described below. Permanent occupancy of the slips shall require [DEP] approval, contingent upon the water quality monitoring program demonstrating a statistically significant (Specific Condition 9) net improvement for those parameters which did not meet State Water Quality Standards in the baseline study. The permittee agrees that if [DEP] determines that net improvement has not occurred, or if violations of other standards occur, and if the corrective measures described in Specific Condition 10 are not successful, all of the additional slips occupied at that time shall be
removed. . . .
Phase I--Upon completion of the baseline water quality study and the work specified in Specific Condition No. 5, the existing 61 slips and an additional 56 slips, totalling
117 slips, may be occupied. . . . If at the end of one year of monitoring, the data generated from the water quality monitoring
program shows a statistically significant improvement over baseline conditions, for those parameters in violation of State Water Quality Standards, and no violations of additional parameters, . . . the new 56 slips which were occupied shall be considered permanent.
Phase II--Upon written notification from [DEP] that Phase I was successful, the remaining 57 additional slips may be occupied. Water and sediment quality monitoring shall continue for two years after the occupancy of 140 of the 174 slips. If a statistically significant net improvement to water quality over baseline conditions for those parameters in violation of State Water Quality Standards [sic] and no violation of additional parameters is shown by the monitoring data, and confirmed by [DEP] in writing, the additional slips shall be considered permanent.
* * *
Specific Condition 11 adds:
Implementation of the slip phasing plan described in Specific Condition 8 shall be contingent on compliance of boaters with existing speed zones in the Caloosahatchee River and trends in manatee and [sic] mortality. . . . Approval of additional slips will depend upon manatee mortality trends and boater compliance with speed zones in the Caloosahatchee River and additional slips may not be recommended. . . . Based on the results of the evaluations of Phases I and II, [DEP] may require that slips be removed to adequately protect manatees.
Specific Condition 12 requires the construction of a
400 square-foot intertidal area for the planting of mangroves to replace the mangroves lost in the construction of the flushing channel. Specific Condition 14 prohibits liveaboards at the
marina. Specific Condition 15 adds various manatee-protection provisions.
Plan Views C and D, which are part of the Original Permit, depict submerged bottom elevations for the north and central canals, as well as from the south canal at its intersection with the central canal. Dated August 30, 1995, these "existing" bottom elevations across the mouth of the north canal are about -7, -8, and -4 feet (presumably MLW; see second note to Plan View B). The western two-thirds of the north canal passes over bottoms of about -6 feet MLW. Proceeding east, the bottom deepens to -7 to -9 feet MLW before it tapers up to -7,
-6, and finally -3 feet MLW at the head; and the eastern third of the north canal passes over bottoms of about -7 feet MLW that tapers up to -6 feet and -3 feet MLW. The submerged bottom at the mouth of the central canal is about -8 to -9 feet MLW. The bottom drops to -6 to -10 feet MLW at the intersection with the south canal. Proceeding east, the bottom deepens slightly as it reaches the head, where it is -8 feet MLW. The submerged bottom of the south canal runs from -9 feet MLW at the intersection with the central canal and runs about 0.5 feet deeper at the head.
Petitioner and others challenged the issuance of the Original Permit in 1988. The permit challengers appealed a final order granting the Original Permit and certifying, under the federal Clean Water Act, that state water quality standards were met. DEP premised its certification on the concept that water
quality standards encompassed a net improvement in water quality of the poorly flushed canals.
In Sheridan v. Deep Lagoon Marina, 576 So. 2d 771, 772 (Fla. 1st DCA 1991), the court, relying on the above-described 1987 water quality data, noted the "very poor water quality" of Deep Lagoon, as reflected in part by the presence of oil and grease 20 times the Class III standard, copper 13 times the standard, lead 20 times the standard, mercury 1000 times the standard, and coliform bacteria "too numerous to count."
However, the court affirmed the issuance of the Original Permit under the statutory authorization of a permit where ambient water quality does not meet applicable standards, but the activity will provide a net improvement to the waters.
On the certification issue, though, the court reversed and remanded. The court held that the hearing officer erroneously excluded evidence on DEP's certification of the activity as in compliance the federal Clean Water Act.
Following remand, DEP issued a final order issuing the Original Permit. On the certification issue, the final order revoked the earlier certification of compliance and, citing 33 United States Code Section 1341 as authority, waived certification as a precondition to federal permitting.
Maintenance Dredging: DOAH Case No. 98-3901
Background
The contentions of Petitioner and Intervenor as to maintenance dredging are: the proposed dredging exceeded what was necessary to restore the canals to original design specifications or original configurations; the proposed dredging exceeded the maximum depth allowable for maintenance dredging of canals; the work was not conducted in compliance with Section 370.12(2)(d), Florida Statutes; the spoil was not deposited on a self-contained upland site to prevent the escape of the spoil into waters of the state; and the dredge contractor did not use control devices and best management practices for erosion and sediment control to prevent turbidity, dredged material, and toxic or deleterious substances from discharging into adjacent waters during maintenance dredging.
On March 3, 1998, Applicant's engineering consultant submitted drawings to DEP with notification that Applicant intended to "maintenance dredge the internal canals of Deep Lagoon Marina," in conformity with Rule 62-312.050(e), Florida Administrative Code. The letter describes the proposed dredging as mechanical "with no discharge back into Waters of the State." The letter assures that Applicant's contractor will use turbidity curtains "around the dredging and spoil unloading operation" and advises that the contractor will unload the spoil "to the north peninsula upland area." The letter states that the dredging "will be to the design depth/existing canal center line depth of
-7 NGVD," which was established by the Original Permit, and will
be "done in conjunction with the required dredging under [Original Permit] Condition 5(D)."
The consultant attached to the March 3 letter several drawings showing the dredging of all three canals. For each canal, the drawings divide the dredging into two areas. For 1.82 acres, the contractor would dredge contaminated materials from the dead-ends of the three canals (for the south canal, a portion running from the head along the northeast half of the canal) and then replace these materials with clean backfill material. This information is for background only, as the Original Permit authorized this contaminant dredging. For 4.84 acres, which run through the remainder of the three canals, the contractor would maintenance dredge in accordance with the cross-sections provided with the letter.
The cross-sections for the north canal reveal relatively extensive dredging beyond the vegetation lines on both sides of the canal bottom. The dredging would extend up to, but not beyond, the edges of the prop roots of the mangroves on both sides of the canal bottom. The contours reveal variable, proposed slope profiles for the submerged sides of the canals, but the dredging would substantially steepen the submerged slopes of the north canal.
It is difficult to estimate from the cross-sections the average depth and width to be dredged from the north canal, but it appears that the cross-sections proposed the removal of
substantial spoil (an average of 4-6 feet) from areas from 20-40 feet from each side of the deepest point in the north canal. The dredging would alter the two most affected cross-sections, which are just inside the mouth of the north canal, by widening the deepest part of the canal bottom by 85 feet--from about 15 feet to about 100 feet.
The drawings proposed much smaller alterations to the bottoms of the central and south canals: typically, spoil about
2 feet deep and 20 feet wide. All but one of the cross-sections revealed that spoil would be dredged only from one side of the deepest point. Additionally, the dredging in these canals would not involve any submerged vegetation; all but one of the canal sides was lined by existing seawalls.
By letter dated March 13, 1998, DEP stated that it had determined that, pursuant to Rule 40E-4.051(2)(a), Florida Administrative Code, the proposed activity was exempt from the requirement that the Applicant obtain an ERP. The letter warns that, pursuant to Chapter 62-302, Florida Administrative Code, the construction and operation of the project must not cause water quality violations. The letter adds that DEP may revoke its determination of exemption if the "basis for the exemption is determined to be materially incorrect, or if the installation results in water quality violations." The letter provides a point of entry for persons whose substantial interests are affected by DEP's determination.
Following receipt of DEP's letter acknowledging the exemption, Applicant's contractor proceeded to maintenance dredge the three canals. The dredging of the north canal took eight weeks.
Applicant's contractor also performed the contaminant dredging and clean backfilling authorized by the Original Permit. As indicated in the March 3 letter and permitted in the Original Permit, the contaminant dredging took place at the dead-end heads of the north and central canals and along the northeast half of a slightly longer section of the south canal, starting from its dead-end head.
In maintenance dredging the canals, Applicant's contractor did not exceed the specifications regarding depth and width stated in its March 3 letter. To the contrary, the contractor sometimes dredged slightly narrower or slightly shallower profiles than stated in the March 3 letter. For example, the contractor dredged the north canal to -6 feet NGVD (or -5.6 feet MLW), rather than -7 feet NGVD, as shown in the March 3 letter.
The Depths, Widths, and Lengths of Dredging
The March 3 letter asserts that -7 feet NGVD is the permitted elevation of the canal bottoms, pursuant to the Original Permit. This is incorrect in two respects.
First, the assertion in the March 3 letter of a -7 foot permitted bottom elevation is incorrect for all but the
relatively small part of each canal that DEP has determined is contaminated. The Original Permit specifies design elevations for canal bottoms only in the contaminated area within each canal. Nothing in the Original Permit permits bottom elevations for any portion of the bottoms of the three canals outside of these three contaminated areas.
Second, the assertion in the March 3 letter of a -7 foot permitted bottom elevation is incorrect, even for the contaminated areas. The March 3 letter states -7 feet NGVD, but the Original Permit specifies bottom elevations, for contaminated areas only, of -7 feet MLW in the south and central canals and -6 feet MLW in the north canal. Thus, due to the differences between NGVD and MLW, the March 3 letter proposes dredging that would deepen the south and central canals by about five inches deeper than the depth permitted in the Original Permit and the north canal by one foot five inches deeper than the depth permitted in the Original Permit.
Moreover, nothing in the record clearly establishes all aspects of the original design specifications of the three canals, whether permitted or not, or even all aspects of their original dredged configurations, if not permitted.
There is no dispute concerning one aspect of the dredged configuration of the three canals: their lengths. Although there may be some dispute as to the original mean high water line near the mouths of the north and central canals, the
original length of the canals is evident from the uplands that presently define them.
As to the depth of the canals, although direct evidence is slight, Applicant has sufficiently proved indirectly the depths of the mouths of the canals pursuant to original design specifications or, if not designed, original configurations. The proved bottom elevations are -7 feet NGVD for each canal. Applicant proved these depths based on the prevailing elevations in Deep Lagoon in the vicinity of the mouths of the north and central canal and bottom elevations in areas of Deep Lagoon that are not prone to sedimentation. Additional proof of the bottom elevation of -7 feet NGVD at the mouths of the canals is present in the slightly higher permitted bottom elevations at the dead- ends of the north and central canals and landward portion of the south canal. There is some problem, though, with the proof of the depth of the canal bottoms between their mouths and heads (or, for the south canal, its landward portion of known contamination).
Although the problem of the depth of the canals between their heads and mouths might be resolved by inferring a constant bottom elevation change from the deeper mouth to the shallower head, an unresolveable issue remains: the width of this maximum depth. As already noted, without deepening the deepest part of either cross-section, the contractor widened the deepest points along two cross-sections by 85 feet each. In terms of
navigability and environmental impact, the width of the maximum depth of a canal is as important as its maximum depth.
As to the width of the lowest bottom elevations of the canals, Applicant has produced no proof of original design specifications or, if not designed, original configurations. Nor has Applicant produced indirect proof of historic widths.
Nothing in the record supports an inference that Applicant's predecessor in interest originally dredged the canal bottoms as wide as Applicant "maintenance" dredged them under the claimed exemption. Nothing in the record supports an inference that Applicant's predecessor geometrically dredged the canals so that their sides were perpendicular to their bottoms. Nothing in the record describes a sedimentation problem that might have narrowed the canals by such an extent that the dredging of the present widths, especially in the north canal, would be restorative.
Nothing in the record even suggests that the original motive in dredging was navigability, which might have yielded relatively wide canal bottoms, versus upland fill, which would yield canal bottoms as wide as needed, not for navigability, but for uplands- creation.
After consideration of all the evidence, no evidence supports a finding that the proposed dredging profiles, in terms of the widening of the areas of lowest elevation in each canal bottom, bear any resemblance whatsoever to the original canal profiles, as originally (or at any later point) designed or, if
not designed, as originally (or at any later point) configured. It is at least as likely as not that this is the first time that these canal bottoms, especially the north canal bottom, have ever been so wide at any bottom elevation approaching -7 feet NGVD. There is simply no notion of restoration or maintenance in the dredging that produced these new bottom profiles for these three canals.
Transforming MLW to NGVD, -5 feet MLW is -4.6 feet NGVD. All proposed and actual maintenance dredging in the three canals dredged the canal bottoms to elevations lower than -5 feet MLW (or -4.6 feet NGVD), despite the absence of any previous permit for construction or maintenance of the canal from the Trustees of the Internal Improvement Trust Fund or the United States Army Corps of Engineers.
Impact of Dredging on Manatees and Spoil Containment
Prior to dredging, Applicant deployed turbidity curtains around the mouths of the two canals that discharge directly into Deep Lagoon. In this case, the turbidity curtains performed two functions. They contained turbidity and resuspended bottom contaminants within the mixing zone behind (or landward of) the curtains, and they excluded manatees from the dangerous area behind the curtains where the dredging was taking place.
Petitioner and Intervenor object to the use of the turbidity curtains on two general grounds. First, they claim
that the curtains failed to contain turbidity and resuspended contaminants from escaping the mixing zone. Second, they claim that the curtains adversely affected manatees.
As executed, the maintenance dredging did not result in the release of turbidity or resuspended contaminants outside of the mixing zone due to the use of turbidity curtains. Applicant's contractor ensured that the curtains extended from the water surface to the canal bottom and sufficiently on the sides to prevent the escape of turbidity or resuspended
contaminants. Although the March 3 letter did not indicate where the contractor would deploy the turbidity curtains, the important point, in retrospect, is that the contractor properly deployed the curtains.
There is some question whether turbidity or resuspended contaminants flowed across the mangrove fringe and into the Iona Drainage District ditch. Applicant's witness testified that water flows across the fringe only during the highest three or four tides per month. Petitioner and Intervenor's witness testified that water flows across the fringe as often as twice per day. The actual frequency is likely somewhere between these two extremes, but, regardless of the frequency, there is insufficient evidence to find that any turbidity or resuspended contaminants flowed from the north canal into the Iona Drainage District ditch.
Nor did the deployment of the turbidity curtains injure, harm, possess, annoy, molest, harass, or disturb any manatees. Applicant and its contractor carefully checked each canal for manatees before raising the turbidity curtains at the mouth of each canal, so as not to trap any manatees in the area behind the curtains. By ensuring that the curtains extended to the canal bottom and extended fully from side to side, they ensured that the curtains excluded manatees during the dredging. There is no evidence that a manatee could have entered the north canal from the Iona Drainage District ditch by crossing the red mangrove fringe; any breaks in the fringe were obstructed by prop roots that prevented even a kayaker from crossing the fringe without portaging. Applicant and its contractor checked for manatees during dredging operations.
Petitioner and Intervenor contend that the mere presence of the turbidity curtains in an area frequented by manatees adversely affected the animals. However, this argument elevates a speculative concern with a manatee's response to encountering an obstruction in its normal path over the practical purpose of curtains in physically obstructing the animal so as to prevent it from entering the dangerous area in which the dredge is operating, as well as the unhealthy area of turbidity and resuspended contaminants in the mixing zone. Under the circumstances, the use of the turbidity curtains to obstruct the
manatees from visiting the dredging site or mixing zone did not adversely affect the manatees.
In general, there is no evidence of any actual injury or harm to any manatees in the course of the dredging or the preparation for the dredging, including the deployment of the turbidity curtains. Petitioner and Intervenor offered evidence that maintenance dredging would result in more and larger boats and deterioration of water quality, which would both injure the manatees. However, as noted in the conclusions of law, the Administrative Law Judge excluded from DOAH Case No. 98-3901 such evidence concerning long-term impacts upon the manatees following the dredging.
As for spoil containment, Applicant's contractor segregated the contaminated spoil from noncontaminated spoil by placing the contaminated spoil in a lined pit in the uplands. The contractor also brought onto the uplands clean fill mined from a sand quarry for backfilling into the dredged contaminated areas.
There is evidence of the clean fill subsiding from its upland storage site and entering the canal waters in the mixing zone. Partly, this occurred during the loading of the barge, which transported the clean fill to the dead-end heads of the canals where the fill was placed over the newly dredged bottoms. The fill escaped into the water at a location about 100 feet long along the north seawall of the central canal, but the evidence
does not establish whether this location was within the contaminated area at the head of the canal or whether the maintenance or contaminant dredging had already taken place.
If the fill subsided into the water inside of the contaminated head of the south canal and the subsidence occurred prior to the contaminant dredging, the subsidence was harmless because the contractor would remove the fill during the dredging. If the fill subsided into the water inside the contaminated head of the south canal and the subsidence occurred after the contaminant dredging, the subsidence was harmless because the contractor intended to add the fill at this location. If the fill subsided into the water outside of the contaminated head of the south canal and the subsidence occurred prior to maintenance dredging, the subsidence was harmless because the contractor would remove the fill during the dredging. If the fill subsided into the water outside the contaminated head of the south canal and the subsidence occurred after the maintenance dredging, the subsidence was harmless because it restored the canal bottom to a higher elevation following the dredging to an excessively low elevation.
The subsidence of the clean fill into the water along the north side of the central canal is the only material that entered the water from the uplands during the dredging. Specifically, there is no evidence of dredged spoil entering the water from the uplands during or after the dredging.
There is also no evidence that the maintenance dredging significantly impacted previously undisturbed natural areas. There is no evidence of such areas within the vicinity of Deep Lagoon Marina.
New Permit: DOAH Case No. 98-5409
New Permit
Seeking to satisfy certain of the requirements of Original Permit Specific Condition 5, Applicant filed with DEP, on December 10, 1997, an application for an ERP and water quality certification to construct a surface water management system to serve 15.4 acres of its 24-acre marina. Prior to its reformulation as an ERP, the New Permit sought by Applicant would have been a SWM permit. The application notes that the general upland elevation is 5 feet NGVD and that stormwater runoff presently sheetflows directly to adjacent waterways without any treatment.
During the application process, Applicant's engineer Christopher Wright, submitted a letter dated February 27, 1998, to Jack Myers, who is a Professional Engineer II for DEP. In response to a request from DEP for a "written procedure . . . to assure the proper functioning of the proposed . . . system," the letter states:
Since the system is not designed as a retention system and does not rely upon infiltration to operate properly[,] operation and maintenance is minimal. Items that will need regular maintenance are limited to removal of silt and debris from the bottom of
the drainage structures and the bleed down orifice of the control structure. A maintenance and inspection schedule has been included in this re-submittal as part of Exhibit 14.
In relevant part, Exhibit 14 consists of a document provided Mr. Wright from the manufacturer of the components of the surface water management system. The document states that the manufacturer "recommends that the landowner use this schedule for periodic system maintenance . . .." The document lists 16 sediment-control items, but it is unclear whether all of them are incorporated into the proposed system. Four items, including sediment basins, require inspections quarterly or after "large storm events" and maintenance consisting of the removal of sediment; the "water quality inlet" requires inspections quarterly and maintenance consisting of "pump[ing] or vacuum[ing]"; the "maximizer settling chamber" requires inspection biannually and maintenance consisting of "vacuum[ing] or inject[ing] water, suspend silt and pump chamber"; and the "chamber" requires inspection annually and the same maintenance as the maximizer settling chamber. The proposed system includes the water quality inlet and one of the two types of chambers.
By Notice of Intent to Issue dated November 5, 1998, DEP provided notice of its intent to issue the New Permit and certification of compliance with state water quality standards, pursuant to Section 401 of the Clean Water Act, 33 United States Code Section 1341.
On February 6, 1999, DEP revised the notice of intent by withdrawing its certification of state water quality compliance. As it did with the Original Permit, DEP again waived state water quality certification. This waiver is consistent with a letter dated February 2, 1998, in which then-DEP Secretary Virginia Wetherell announced that DEP would waive state water quality certification for all activities in which the agency issues an ERP based on the "net improvement" provisions of Section 373.414(1)(b), Florida Statutes.
The notices of intent (collectively, NOI) recite the recent permitting history of the marina. This history includes the Original Permit, a since-expired MSSW permit issued in 1988 by SFWMD, and then-pending requests--apparently all since granted--to revise the Original Permit by replacing the flushing
canal with culverts, relocating a travel lift from the main canal to the north canal, and adding liveaboards to the marina. (Although mentioned below, these revisions, in and of themselves, do not determine the outcome of DOAH Case No. 98-5409.)
Reviewing the proposed development for the site, the NOI states that the northerly part of the project would contain an indoor dry boat storage barn, a marina service operation consisting of a ship store and miscellaneous buildings, a harbor master building, an upgraded fueling facility, a parts and service center, a restaurant, retail and commercial facilities, and paved parking areas. The southerly part of the project would
contain a new indoor dry boat storage barn, a boat dealership building, and paved parking areas in place of the existing buildings.
The NOI states that the proposed water quality treatment system would comprise dry detention systems of several underground vaults with an overall capacity based on the total impervious area, including roofs, receiving 2.5 inches of rain times the percentage of imperviousness. Given the relatively high imperviousness of the finished development, this recommended order considers the percentage of imperviousness to be 100, but ignores the extent to which the post-development pervious surfaces would absorb any rainfall. For storms producing up to
2.5 inches of runoff, the proposed surface water management system, of which the underground vaults are a part, would trap the runoff and provide treatment, as sufficiently sized contaminants settled into the bottom of the vaults.
Because the vaults have unenclosed bottoms, the proposed system would provide incidental additional treatment by allowing stormwater to percolate through the ground and into the water table. However, the system is essentially a dry detention system, and volumetric calculations of system capacity properly ignored the incidental treatment available through percolation into the water table.
The New Permit notes that the wet season water table is
1.2 feet NGVD, and the bottom of the dry detention system is 2.5
feet NGVD. This relatively thin layer of soil probably explains why DEP's volumetric calculations ignored the treatment potential offered by percolation. The relatively high water table raises the possibility, especially if Applicant does not frequently remove the settled contaminants, that the proposed system could cause groundwater contamination after the thin layer of soil is saturated with contaminants. In any event, the system is not designed for the elimination of the settled contaminants through percolation.
The treatment system for the boat wash areas would be self-contained, loop-recycle systems that would permit the separation of oil and free-settling solids prior to reuse. However, the NOI warns that, "during heavy storm events"-- probably again referring to more than 2.5 inches of runoff--the loop-recycle systems would release untreated water to one of the underground vaults, which would, in turn, release the untreated water into the canals.
Due to the location of the boat wash areas, the receiving waters would probably be the north canal. As reflected in the drawings and the testimony of Mr. Wright, the surface water management system would discharge at three points: two in the north canal and one in the south canal. (Vol. I, p. 206; future references to the Transcript shall cite only the volume and page as, for example, Vol. I, p. 206).
67. The NOI concludes that Applicant has provided affirmative reasonable assurance that the construction and operation of the activity, considering the direct, secondary and cumulative impacts, will comply with the provisions of Part IV of Chapter 373, F.S., and the rules adopted thereunder, including the Conditions for Issuance or Additional Conditions for Issuance of an environmental resource permit, pursuant to Part IV of Chapter 373, F.S., Chapter 62-330, and Sections SFWMD--40E-4.301 and 40E-4.302,
F.A.C. The construction and operation of the activity will not result in violations of water quality standards and will not degrade ambient water quality in Outstanding Florida Waters pursuant to Section 62-4.242, F.A.C. The Applicant has also demonstrated that the construction of the activity, including a consideration of the direct, secondary, and cumulative impacts, is clearly in the public interest, pursuant to Section 373.414(1)(a), F.S.
However, the design capacity of the proposed surface water management system raises serious questions concerning the water quality of the discharges into the canals. Mr. Wright initially testified that the surface water management system would be over-taxed by "an extreme storm event, probably a 25- year storm event . . .." (Vol. I, pp. 208-09). The record contains no evidence of the frequency of the storm event that produces 2.5 inches of runoff for the relatively impervious post- development uplands; the record contains no evidence even of the frequency of the storm event that produces 2.5 inches of rainfall. According to Mr. Wright, the 25-year storm would typically produce 8-10 inches of rain. (Vol. I, pp. 223 and 233). As already noted, the relatively large area of
imperviousness following upland development and the relative imperviousness of the upland soils present at the site suggest that the runoff will be a relatively large percentage of the rainfall produced by any given storm event. It thus appears that the design capacity of the system is for a storm substantially smaller and substantially more frequent than the 25-year storm.
Attached to the NOI is a draft of the New Permit, which contains numerous specific conditions and conforms in all respects with the NOI. Omitting any mention of SFWMD's Basis of Review, the New Permit addresses, among other things, the operation, inspection, and maintenance of the components of the proposed system.
As set forth in the testimony of Michael Bateman, who is a Professional Engineer III and statewide stormwater coordinator for DEP, the surface water management system's operation depends on periodic pumping of the "thick, fine sediment," which appears to be a "cross between mud and sand" and will be laden with oil, grease, metals, and other contaminants. (Vol. II, p. 66). However, contrary to Mr. Bateman's assurance that the New Permit requires the periodic pumping or removal of contaminants that have precipitated out of the runoff in the dry detention system and dropped to the bottom sediment (Vol. II, p. 20), neither the NOI nor the New Permit requires, in clear and enforceable language, the periodic removal of settled solids from the underground vaults or their manner of disposal.
New Permit Specific Condition 8 requires that Applicant maintain the boat wash area in "functioning condition," although specific inspection and maintenance requirements are omitted from the New Permit. New Permit Specific Condition 7 requires that Applicant "inspect and clean" all stormwater inlets "as necessary, at least once a month and after all large storm events," although the New Permit fails to specify that cleaning shall be by either pumping or vacuuming.
By contrast to the marginally adequate inspection and maintenance provisions applicable to the boat wash area (inspections are required in Specific Condition 6, cited below) and stormwater inlets, the New Permit completely fails to specify enforceable inspection and maintenance requirements for the underground vaults.
New Permit Specific Condition 6 addresses the operation of the vault as follows:
Upon completion of the construction of the stormwater collection and underground vault (Infiltrator) systems and on an annual basis thereafter by September 30 of each year, the Permittee shall submit reports to the Department as to the storage/treatment volume adequacy of the permitted system. The reports shall also include, but not be limited to, the condition of stormwater inlets and control structures as to silt and debris removal and the condition of the inlet wire mesh screens to function properly. The boat wash down areas shall be inspected for proper operation, i.e., no signs of wash water overflows from the containment area, condition of the containment area curbing, etc. Such reports shall include proposal of technique and schedule for the maintenance
and/or repair of any deficiencies noted and shall be signed and sealed by a Florida registered Professional Engineer. A report of compliance with the aforementioned proposal shall be submitted by the Professional Engineer to the Department upon completion of the proposed work which shall be accomplished within three months of the initial report for each year.
New Permit Specific Condition 6 requires annual reports concerning the sufficiency of the capacity of the underground vaults (first sentence), annual reports of the status of silt- and debris-removal from the inlets and control structures and the condition of the inlet wire mesh screens (second sentence), inspection at no stated intervals of the boat wash area (third sentence), and annual reports with suggestions of maintenance schedules and repairs for the items mentioned in the first two sentences (fourth sentence).
New Permit Specific Condition 6 promises only the preparation of a maintenance schedule at some point in the future. Failing to supply an enforceable inspection and maintenance program, Specific Condition 6 indicates that Applicant shall consider in the future techniques and scheduling of maintenance, presumably based on the report concerning system capacity. Such a requirement may or may not impose upon Applicant an enforceable obligation to adopt an enforceable inspection and maintenance program in the future, but it does not do so now.
There is no reason why the New Permit should not impose upon Applicant an initial, enforceable inspection and maintenance program incorporating, for example, the clear and enforceable requirements that Applicant inspect all of the underground vaults no less frequently that once (or twice, if this is the applicable recommendation of the manufacturer) annually and, at clearly specified intervals, remove the sediments by resuspending the sediments in the water, pumping out the water, and disposing of the effluent and sediments so they do not reenter waters of the state. Although the record does not disclose such requirements, Applicant could possibly find manufacturer's recommendations for the boat wash components and incorporate them into an enforceable inspection and maintenance program more detailed than that contained in Specific Condition 8. However, for the reasons noted below, water quality considerations require a substantial strengthening of such a program beyond what is set forth in this paragraph as otherwise acceptable.
At present, the bottom line on inspection and maintenance is simple: the New Permit does not even incorporate by reference the manufacturer's recommended inspection and maintenance schedule, which Mr. Wright provided to Mr. Myers. Nor was this shortcoming of the New Permit in its treatment of inspection and maintenance necessarily missed by Mr. Wright. He
testified that he submitted to DEP the manufacturer's maintenance program (Vol. I, p. 205), but when asked, on direct, if the
"permit in any way incorporate[s] the commitment in your application to this maintenance?" Mr. Wright candidly replied, "That I don't know." (Vol. I, p. 206).
Satisfaction of Basis of Review Section 5
Basis of Review Section 5--specifically Section 5.2.1(a)--imposes the "volumetric" requirement of 2.5 inches times the percentage of imperviousness, as discussed above and in the conclusions of law. Petitioner does not dispute Applicant's compliance with this volumetric requirement, and the record amply demonstrates such compliance.
Applicability of Basis of Review Section 4
The main issues in this case are whether the environmental and water quality requirements of Basis of Review Section 4 apply to the direct, secondary, and cumulative impacts of the proposed activity. Because the record lacks any indication of other relevant pending or vested permits, without which, as noted in the conclusions of law, one cannot assess cumulative impacts, the remainder of the findings of fact will not discuss cumulative impacts, although, to some extent, increased boating pressure constitutes a secondary impact and a cumulative impact.
Without regard to the differences between direct and secondary impacts, DEP has taken the position in this case that it could lawfully issue the New Permit upon satisfaction of the volumetric requirements of Basis of Review Section 5 and without
consideration of the requirements of Basis of Review Section 4. In large part, DEP's witnesses justify this position by reliance on the historic differences between DAF permits and SWM permits and the fact that the New Permit is a former-SWM ERP.
As discussed in detail in the conclusions of law, the Basis of Review imposes different requirements upon former-DAF and former-SWM ERPs, although the Basis of Review does not refer to DAF or SWM permits by their former names. The identifying language used in the Basis of Review for former-DAF ERPs is "regulated activity" "located in, on, or over surface waters or wetlands." References to "regulated activity" without the qualifying clause indicate that the following requirement applies to former-DAF ERPs and former-SWM ERPs.
Several witnesses for DEP and Applicant testified that Applicant was entitled to the New Permit upon satisfaction of the volumetric requirements of Basis of Review Section 5. For example, Mr. Wright testified that the water quality requirements for the New Permit required only a "cookbook calculation" to determine volume. (Vol. I, p. 204). Agreeing with a question that analysis of the water quality portion of the system requires "simply a straightforward mathematical calculation," Mr. Wright testified that the quality of discharged water, following treatment, will comply with state water quality standards in storms producing no more than 2.5 inches of runoff. (Vol. I, pp. 210-11). When asked to explain his answer, Mr. Wright testified,
"It's kind of an implied situation, in that if you follow the guidelines that you are required to follow with respect to the calculations of water quality, that the end product is going to be in compliance with state standards." (Vol. I, p. 211).
DEP witnesses agreed with Mr. Wright's analysis. For instance, Mr. Bateman testified, "The stormwater portion of the Basis of Review gets at that question [meeting water quality standards] by stating, 'if you follow the design criteria in the basis, you are presumed to meet water quality standards.'" (Vol. II, p. 40).
Mr. John Iglehart, the program administrator for DEP's South District Office in Fort Myers, testified on the same point: "if . . . you meet the criteria, the engineering criteria, than you have met the presumption that you meet the rule." (Vol. III, p. 52).
Mr. Myers also agreed, testifying, "with the stormwater management system, it's for the most part, let's say, fairly cut and dried as far as meeting criteria that is established within these rules and Basis of Review." (Vol. III,
p. 144). He added: "Since the criteria for reviewing stormwater management systems and the discharge is based upon a presumed compliance with stormwater criteria and with state water quality, it is presumed it [the proposed system] does meet it." (Vol. III, p. 148).
Mr. Bateman explained the historic basis for the water quality presumption given surface water management systems that meet the volumetric requirements:
the ERP is a combination of the surface water management rules and the environmental . . ., the dredge-and-fill, and they didn't merge, they didn't marry very well in certain areas.
In stormwater we look at--it's a technology- based criteria. We say, "If you build it this way, treat 80 percent of the average annual pollutant load, we're going to give you the permit on the presumption that you're doing the best you can. You're going to meet standards.
Once you get into the wetlands, we take--we put on whole new sets of glasses.
ALJ: Are you saying that the old dredge-and- fill is more performance-based, and the old MSSW is more technology-based, in that if you've put in the required technology, you've done your job?
WITNESS: That is--yes. Dredge-and-fill is a more case by case. We look at the water quality. We look at ambient conditions. We look at hydrographics [here, largely tidal flushing]. It's more like a waste load allocation in that we're very specific. In stormwater, we can't afford to be.
MS. HOLMES: So what you're saying is you can't point to the specific rule provision or regulation that excludes these criteria from surface water management systems?
WITNESS: Well, you have to read [Basis of Review] Section 4 as a whole. 4.1 is specific to wetlands and other surface waters. 4.2 is environmental review.
I mean, if you look at the thing in total, and the--and I realize it's confusing. But these rules are exactly the same in all the water management districts. They were
developed together as the wetland criteria, the new dredge-and-fill criteria. They're exactly the same.
The stormwater rules of all the [water management districts] is all different. That is for another day, making those all consistent. So these environmental wetland- type dredge-and-fill criteria are all the same, and they refer to in-water impact.
[All references in the transcript to "end water" should have been "in-water."]
ALJ: What do you mean by that term, "in- water impact?"
WITNESS: In other words, dredge-and-fill impact. Construct and--I can't--
MS. HOLMES: May I continue, then?
ALJ: Let him answer. What were you going to say?
WITNESS: I think it takes a little knowledge of how these [rules] developed to know how they're applied, unfortunately. In other water management districts, it's clearer that these are in-water impacts.
(Vol. II, pp. 57-59).
In testifying to the exclusivity of the volumetric requirements in Basis of Review Section 5, with respect to former-SWM ERPs, these witnesses likewise opined that the secondary-impact analysis required in Basis of Review Section 4 also was inapplicable to the New Permit.
For example, after testifying both ways on the necessity of considering secondary impacts in issuing former-SWM ERPs, Mr. Bateman concluded, "I'm not sure that [the requirement of considering secondary impacts] applies in this case.
Certainty the rules apply, I mean, the rules apply. But certain rules are not applicable in this particular instance. I mean, I'm trying to think of a secondary impact associated with stormwater system, and it's difficult for me to do so." (Vol.
II, p. 45). Mr. Bateman then testified that DEP did not consider such secondary impacts, as additional boat traffic, and probably did not consider cumulative impacts, such as other marinas.
(Vol. II, pp. 51-52).
In response to a question asking to what extent DEP considered post-development inputs of contaminants, such as heavy metals, when issuing a former-SWM ERP, Mr. Bateman testified:
I have to tell you, very little. I mean, we--stormwater is pretty black and white.
The link to secondary and cumulative impact is generally associated with in-water impact. And I realize the line is a little grey here.
When we build a Wal-Mart, we don't think about how many cars it's going to put on [U.S. Route] 41 and what the impact might be to an adjacent lake. We just don't. It would be a little burdensome. In this case, I mean, it's a little greyer.
(Vol. II, p. 47).
Mr. Bateman was then asked to compare the relative impacts from a vacant, but developed, upland without a surface water management system with a proposed activity that would add a surface water management system to facilitate an intensification of land uses on the site so as to add new contaminants to the runoff. Mr. Bateman testified that DEP would apply only the volumetric requirement and not address the complex issue of
weighing the potential environmental benefit of a new surface water system against the potential environmental detriment of contaminant loading (at least in storm events greater than the design storm event). Mr. Bateman explained: "The way it works, it is not a water quality-based standard. In other words, we don't go in and say it's so many pounds [of contaminants] per acre per year now. We're going to make it this many pounds per acre per year, and look at it in a detailed fashion. We do the [Best Management Practices], retain an inch and you're there." (Vol. II, p. 49).
Agreeing with Mr. Bateman that DEP was not required to consider secondary impacts resulting from the regulated activity, Mr. Iglehart testified: "It's our thought that we don't really look at secondary and cumulative impacts for the stormwater permit. . . . If it [the former-SWM ERP application] meets the criteria, it gets the permit. That--in the ERP, the previous dredge-and-fill side looks at the secondary and cumulative. The stormwater just--like Mr. Bateman testified." (Vol. III, p. 52).
After some ambivalence, Mr. Myers also testified that DEP was not required to consider secondary impacts for the New Permit:
WITNESS: . . . I did not or I do not consider secondary impacts for the stormwater management system.
MS. HOLMES: So, what about cumulative impacts?
WITNESS: No.
MS. HOLMES: So it's your testimony that you did not review secondary and cumulative impacts--
WITNESS: That's correct.
MS. HOLMES: --of this system?
WITNESS: What I can say is that the existing system out there, from what I can tell, does not have any stormwater treatment.
Basically, it's running off into the canals.
The proposed project will provide stormwater treatment for, not only the new construction, which is proposed mainly on the northern peninsula, but it is also provided for that area which is now existing, it will provide stormwater treatment for that area also. And I consider that--I don't consider that to be a secondary impact. I see it as an offsetting improvement to potential as far as the water quality.
(Vol. III, pp. 144-45).
As discussed in detail in the conclusions of law, these witnesses have misread the provisions of the Basis of Review applicable to the New Permit. As noted in the conclusions of law, the requirements in the Basis of Review of analysis of secondary and cumulative impacts upon water quality and manatees are not limited to in-water or former-DAF activities.
Satisfaction of Basis of Review Section 4
Direct vs. Secondary Impacts
In terms of construction, the direct impacts of the proposed surface water management system are negligible. Nothing in the record suggests that the construction of the proposed
system will violate any of the requirements of Basis of Review Section 4.
In terms of maintenance, the direct impacts of the proposed surface water management system are negligible, except for the omission from the New Permit of any provision for the safe disposition of the contaminant removed from the underground vaults. However, the maintenance issues are better treated with the operation issues.
In terms of operation, the direct impacts of the proposed surface water management system are substantial. As discussed in the conclusions of law, the analysis of the direct impacts of the operation of the proposed system is limited to the current level of uplands and marine activity at the marina.
These direct impacts involve two aspects of the operation of the proposed system: the design capacity and the inspection and maintenance (including disposal of sediment) of the system components.
As discussed in the conclusions of law, the secondary impacts involve the intended and reasonably expected uses of the proposed system. These impacts consist of the increased uplands and marine uses associated with the addition of 100 new wet slips, 227 new dry slips, and 115,000 square feet of building space with a restaurant.
Apart from their contention that Applicant is required only to satisfy the volumetric requirements of Basis of Review
Section 5, Applicant and DEP have contended that Petitioner is estopped from raising direct and secondary impacts because DEP considered these impacts when issuing the Original Permit four years ago.
Perhaps the most obvious factual problem with this contention is that it ignores that the New Permit authorizes, for the first time, the construction of the 227 new dry slips and 115,000 square feet of buildings. As counsel for DEP pointed out during the hearing, the Original Permit was a DAF permit and did not extend to these upland uses. The contention that DEP considered these developments as secondary impacts because they were shown on drawings attached to the Original Permit gives too much significance to nonjurisdictional background items shown in drawings without corresponding textual analysis.
More generally, the efforts of DEP and Applicant to restrict the scope of this case rely on a misreading of Original Permit Specific Condition 5. The purpose of Original Permit Specific Condition 5 is to "ensure a net improvement to water quality." The purpose of each of the requirements under Specific Condition 5 is to achieve an actual, not presumptive, improvement in water quality. Prohibiting the issuing agency from fully analyzing the direct and secondary impacts of the proposed surface water management system reduces the likelihood that the ensuing New Permit will perform its role, as envisioned in the
Original Permit, of helping to achieve an actual, net improvement in water quality.
The concept of a "net" improvement is exactly what DEP's witnesses disclaim having done in this case--balancing the potential environmental benefits to the water resources from the proposed surface water management system against the potential environmental detriments to the water resources from the development and land uses that are intended or reasonably expected to result from the construction of the proposed system. The failure to analyze the net gain or loss inherent in this important provision of Specific Condition 5.B undermines the likelihood that the effect of Specific Condition 5.B--a net improvement in water quality--will be achieved. It is therefore illogical to rely on Specific Condition 5.B, as DEP does, as authority for an artificially constrained analysis of the eligibility of the proposed system for a former-SWM ERP.
The estoppel argument also ignores that Original Permit Specific Condition 5.B anticipated that the issuing agency would be SFWMD. It is unclear how the parties to the Original Permit, including DEP, would bind what appeared at the time to have to be SFWMD in the exercise of its lawful authority in issuing SWMs or former-SWM ERPs.
The attempt of Applicant and DEP trying to limit the scope of this case also overlooks numerous changed circumstances since the issuance of the Original Permit. Changed circumstances
militating in favor of the comprehensive analysis mandated for former-SWM ERPs include: increased trends in manatee mortality; increased boating pressure; persistent water quality violations in terms of dissolved oxygen, copper, and total coliform bacteria; a dramatic deterioration in dissolved oxygen levels; the initial presentation for environmental permitting of the previously unpermitted 227 additional dry slips and the 115,000 square feet of buildings; the current canal bottom profiles resulting from excessively deep maintenance dredging; the absence of an updated flushing study; and the failure to dredge the flushing canal required by the Original Permit.
Disregarding the environmental and water quality requirements of Basis of Review Section 4 in this case would thus repudiate Specific Condition 5.B, especially when, among other things, the water quality of the canals has deteriorated dramatically with respect to dissolved oxygen, the canals continue to suffer from serious copper violations, the canals were recently maintenance dredged to excessive depths, no flushing study has examined these subsequent developments, and the intended uses to be facilitated by the New Permit more than double the capacity of the existing marina.
2. Water Quality
The direct impacts of the proposed surface water management system, based on current levels of uplands and marine use at the marina, would adversely affect the quality of the
receiving waters, in violation of Basis of Review Section 4.1.1(c).
The excessively increased depths of the canals, especially with respect to the substantially widened depths of the north canal, raise the potential of water quality violations, especially given the history of this site. Potential sources of contaminants exist today in the canal bottoms, uplands, and marine activity associated with the marina. The potential for water quality violations, especially with respect to dissolved oxygen, increases in the absence of an updated flushing study. The potential also increases with the introduction of liveaboards and failure to dredge the flushing canal (or its replacement with culverts).
In the face of these current threats to water quality, the New Permit fails to require a system with adequate capacity to accommodate fairly frequent storm events and fails to impose clear and enforceable inspection, maintenance, and disposal requirements for the underground vaults. Although better, the inspection and maintenance requirements for the stormwater inlets and boat wash area unnecessarily present enforcement problems.
The effect of these failures in design capacity and inspection and maintenance is synergistic. Deficiencies in vault capacity mean that storms will more frequently resuspend the settled contaminants in the vaults and flush them out into the canal waters. Excessively long maintenance intervals and poor
maintenance procedures will increase the volume of contaminants available to be flushed out into the canal waters. Improper disposition of removed contaminants endangers other water resources.
The introduction of untreated or inadequately treated water into the canals means the introduction of two substances that will contribute to the current water quality violations. Organics, such as from the boat wash operations and other uplands uses, will raise biochemical oxygen demand, which will accelerate the deterioration in dissolved oxygen levels. Copper removed during boat wash operations, leaching from painted hulls, or remaining in the uplands from past marina operations will also enter the canals in this fashion.
On these facts, Applicant has failed to provide reasonable assurance that the operation of the proposed surface water management system will not result, in the long-term, in water quality violations. Applicant has failed to demonstrate that the operation of the proposed system, even as limited to existing levels of use of the uplands and marine waters, will not contribute to existing violations of dissolved oxygen and copper levels.
Obviously, the situation is exacerbated by consideration of the uses intended and reasonably expected to follow the construction of the proposed system. With the growing popularity of boating in Lee County over the past 20 years, it is
reasonably likely that an expanded marina operation, located close to downtown Fort Myers, will successfully market itself. Thus, many more boats will use the marina because it will offer more wet and dry slips and new buildings, including a restaurant, and the pressure on water quality will intensify with the intensification of these uses.
The added intensity of upland and marine uses will contribute to the above-described violations of water quality standards for dissolved oxygen and copper, probably will contribute to the above-described violations of water quality standards for total coliform bacteria and lead, and may contribute to the recurrence of water quality violations for other parameters for which the canals were previously in violation.
On these facts, Applicant has failed to provide reasonable assurance that the direct and secondary impacts of the proposed system will not adversely affect the water quality of the canals.
3. Manatees and Manatee Habitat
By letter dated June 26, 1998, from a DEP Environmental Specialist to a DEP permitting employee, the Environmental Specialist provided an initial opinion concerning the revisions that Applicant sought to the Original Permit so as to allow liveaboards, replace the flushing canal with culverts, and relocate the travel lift to the north canal. The letter
accompanies a Manatee Impact Review Report, also dated June 26, 1998.
The Manatee Impact Review Report notes the pending application for the New Permit. The report considers at length the extent of manatee use of Deep Lagoon and the nearby portions of the Caloosahatchee River.
The Manatee Impact Review Report states:
This project [i.e., the relocation of the boat lift to the north canal, addition of liveaboards, and conversion of the flushing canal to flushing culverts] is expected to add a significant number of boats to this system, significantly increase the level of boat traffic, and change boat traffic patterns in the study area. The vessels from this project are expected to produce significant adverse impacts to manatees that use the Deep Lagoon in the immediate vicinity of the project, as well as in the boater's sphere of influence of the project.
Secondary adverse impacts include lethal and
sublethal watercraft-related injuries, disturbance contributing to stress, and alteration of natural behaviors. The secondary impacts expected with this project are compounded by the cumulative secondary effects from other facilities in this system. Just south of this project site, another marina was recently constructed (Sun City Corporation aka Gulf Harbor Marina aka River's Edge), which has approximately 190 wet slips. Since October 1995, there have been seven watercraft-related deaths within five miles of this project location. The Gulf Harbor Marina was constructed in late 1995, and was almost fully occupied during 1996. Watercraft-related manatee deaths increased significantly during this time, with one in December 1995, two in 1996 and four in 1997. Additional on-water enforcement by the City of Cape Coral was considered part of the offsetting measures to address the expected impacts to manatees from
increases in boat density. This offsetting measure, however, appears to be ineffectual at this time.
The Manatee Impact Review Report concludes that the north canal and its mouth are "particularly important" for manatee because of the availability of freshwater from the adjoining Iona Drainage District ditch immediately north of the north canal and "historical use indicates that this area appears to be the most frequently used area in the Deep Lagoon system." The report cautions that the relocated travel lift may significantly increase the number of boats in the little-used north canal, whose narrowness, coupled with moored, large boats on the one side, "would produce significant, adverse impacts to the endangered manatee."
The Manatee Impact Review Report finds that Applicant failed to provide reasonable assurance regarding the conservation of fish and wildlife, unless several new conditions were added. These conditions include prohibitions against boat launching along the shoreline of the north canal and the addition of manatee-exclusion grating to any culverts that may be approved.
As defined in this recommended order, the direct impacts upon manatees from the proposed surface water management system would be moderate. As defined in this recommended order, direct impacts would not involve any increase in boating pressure. The greater impacts would be in the deterioration of
two measures of water quality that are crucial to manatees: dissolved oxygen and copper.
However, the secondary impacts are dramatic, not
de minimis, and arise from the intended and reasonably expected uses to follow from the construction of the proposed surface water management system. The increased boat traffic intended and reasonably expected from more than doubling the marina capacity, through the addition of 100 wet slips and 227 dry slips, and the addition of 115,000 square feet of buildings, including a restaurant, would adversely impact the value of functions provided to manatees by the affected surface waters.
Manatee mortality has increased as boat traffic has increased. Substantial numbers of boaters have ignored speed limits. Quality manatee habitat in this critical area along the Caloosahatchee River is not plentiful.
On these facts, Applicant has failed to provide reasonable assurance that the secondary impacts of the proposed system will not adversely impact the abundance and diversity of wildlife and listed species, of which manatees are one, and the habitat of wildlife and listed species.
4. Minimization and Mitigation
Due to their contention that Basis of Review Section 4 does not apply to this case, DEP and Applicant did not demonstrate compliance with the minimization and mitigation sections of Basis of Review Section 4. However, the record
supports the possibility of design alternatives for water quality impacts, if not manatee impacts, that DEP and Applicant must consider before reanalyzing the direct, secondary, and cumulative impacts of the proposed system on the water resources and, if appropriate, potential mitigation options.
Mr. Bateman testified that SFWMD is the only district that permits surface water management systems relying on the settling out of sediments in the bottom of a storage-type detention system. (Vol. II, p. 18). He explained that other districts rely on systems that, taking advantage of the three to four feet typically minimally available between ground surface and the top of the water table, retain the runoff and allow it to percolate into the ground. (Vol. II, p. 19).
One relatively straightforward design alternative, which would address water quality issues, would be to perform a flushing study; analyze applicable drainage level of service standards imposed by state, regional, and local authorities; and increase the capacity of the surface water management system to accommodate the runoff from storms of sufficient size and frequency that would be accommodated by the proposed system.
Another feature of this design alternative would be to impose for each component of the system a detailed, enforceable program of inspection, maintenance, and contaminant-disposal. This program would incorporate the manufacturer's recommendations for the manner and minimum frequency of inspection and
maintenance, but would require more frequent removal of contaminated sediments during periods when larger storms are more numerous (e.g., a specified wet season) or more intense (e.g., a specified hurricane season), as well as any periods of the year when the marine and upland uses are greatest (e.g., during the winter season, if this is the period of greatest use).
As testified by Mr. Bateman, the proximity of the water table to the surface, as well as South Florida land costs, discourage reliance upon a conventional percolation-treatment system, even though the site's uplands are 5 feet NGVD and the water table is 1.2 feet NGVD. The bottom of the proposed system is 2.5 feet NGVD, which leaves little soil for absorption. If the nature of the contaminants, such as copper, does not preclude reliance upon a percolation-treatment system, DEP and Applicant could explore design alternatives that incorporate more, shallower vaults, which would increase the soil layer between the bottom of the vaults and the top of the water table. If the technology or contaminants preclude reliance upon such an alternative, the parties could consider the relatively costly alternative, described by Mr. Bateman, of pool-like filters with an "actual filtration device." (Vol. II, pp. 19-20).
The preceding design alternatives would address water quality concerns, including as they apply to manatees, but would not address the impact of increased boating upon manatees. The record is not well developed in this regard, but DEP and
Intervenor have considerable experience in this area, and it is premature to find no suitable means of eliminating or at least adequately reducing the secondary impacts of the proposed system in this crucial regard as well.
In any event, Applicant has failed to consider any design alternatives to eliminate or adequately reduce the direct and secondary impacts of the proposed surface water management system.
Having failed to consider minimization, DEP and Applicant have failed to identify the residual direct and secondary impacts that might be offset by mitigation. Applicant has thus failed to mitigate the direct and secondary impacts of the proposed surface water management system.
CONCLUSIONS OF LAW
Jurisdiction and Burden of Proof
The Division of Administrative Hearings has jurisdiction over the subject matter. Section 120.57(1), Florida Statutes. (Unless preceded by "Basis of Review," all references to Sections are to Florida Statutes. All references to Rules are to the Florida Administrative Code.)
Applicant has the burden of showing its entitlement to the maintenance dredging exemption and the New Permit. Department of Transportation v. J. W. C. Company, Inc., 396 So. 2d 778 (Fla. 1st DCA 1981).
Maintenance Dredging
Section 403.813(2)(f) exempts maintenance dredging from ERP permitting. Section 403.813(2)(f) provides that no permit is required for:
The performance of maintenance dredging of existing manmade canals, channels, intake and discharge structures and previously dredged portions of natural water bodies within drainage rights-of-way or drainage easements which have been recorded in the public records of the county, where the spoil material is to be removed and deposited on a self-contained, upland spoil site which will prevent the escape of the spoil material into the waters of the state, provided that no more dredging is to be performed than is necessary to restore the canals, channels, intake and discharge structures, and previously dredged portions of natural water bodies, to original design specifications or configurations, provided that the work is conducted in compliance with s. 370.12(2)(d), provided that no significant impacts occur to previously undisturbed natural areas, and provided that control devices and best management practices for erosion and sediment control are utilized to prevent bank erosion and scouring and to prevent turbidity, dredged material, and toxic or deleterious substances from discharging into adjacent waters during maintenance dredging. . . .
This exemption applies to all canals and
previously dredged portions of natural water bodies within recorded drainage rights-of-way or drainage easements constructed prior to April 3, 1970. . . . When no previous permit has been issued by the Board of Trustees of the Internal Improvement Trust Fund or the United States Army Corps of Engineers for construction or maintenance dredging of the existing manmade canal or intake or discharge structure, such maintenance dredging shall be limited to a depth of no more than 5 feet below mean low water. . . .
As stated above, the statutory maintenance dredging exemption contains seven requirements. To be eligible for the
exemption, the proposed activity must satisfy all seven requirements. As proposed and executed, the maintenance dredging in this case failed to satisfy two of these requirements.
First, the waterway must be an existing, manmade canal and, if unpermitted, constructed prior to April 3, 1970. The canals meet these requirements.
Intervenor focused on the 1997 Legislative addition, "and previously dredged portions of natural water bodies within drainage rights-of-way or drainage easements which have been recorded in the public records of the county." Intervenor argued that the mention of "natural water bodies" in this statutory addition withdrew the maintenance dredging exemption from canals excavated in natural water bodies, unless the canals were within recorded rights-of-way or easements. The Administrative Law Judge rejected this argument, in part reasoning that "channels," which are treated like "canals," may typically occupy natural water bodies. If the Legislature intended dramatically to restrict the scope of maintenance dredging, which would follow from Intervenor's argument, it would have done so much more clearly.
Second, the spoil material must be removed and deposited on a self-contained upland spoil site that will prevent the escape of the spoil material into the waters of the state.
As proposed and executed, the maintenance dredging met this requirement.
Third, no more dredging may take place than is necessary to "restore" the canals to their "original design specifications or configurations." As proposed and executed, the maintenance dredging failed to meet this requirement.
"Design specifications" implies either a DAF permit, which would specify the profile of the canal to be dredged, or at least a plan, which would specify the profile of the canal to be dredged. In either case, the profile of the canal in terms of its length, depth, and width would be known prior to the commencement of dredging. The 1997 Legislative additions to Section 408.813(2)(d) added, "configurations" to "design specifications." The configuration, or profile, of the canals emerges after the dredging. Thus, "configuration" covers the situation where the contractor excavates the canal differently from its specifications or where the contractor excavates a canal without permitted or actual specifications.
Applicant and its contractor exceeded the scope of maintenance dredging because nothing in the record established the original specification or configuration of the canals, so as to establish a profile, which the dredging could "restore." In particular, nothing in the record discloses the width of the canal bottoms at their greatest depths, either originally (as required) or even at any point prior to their maintenance dredging. As proposed and executed, the maintenance dredging did not meet this requirement.
Fourth, absent a previous permit from the Trustees of the Internal Improvement Trust Fund or the United States Army Corps of Engineers, maintenance dredging cannot extend deeper than -5 feet MLW. The record contains no such permits, and, as proposed and executed, the maintenance dredging did not meet this requirement.
Fifth, maintenance dredging must comply with Section 370.12(2)(d). Section 370.12(2) is the Florida Manatee Sanctuary Act. Section 370.12(2)(d) prohibits "any person at any time, by any means, or in any manner intentionally or negligently to annoy, molest, harass, or disturb or attempt to molest, harass, or disturb any manatee; injure or harm or attempt to injure or harm any manatee; . . . or possess, literally or constructively, any manatee or any part of any manatee."
The purpose of the turbidity curtains was to prevent manatees from entering the area behind the curtains and either being injured by the dredge machine or suffering harm from the resuspended contaminants and turbidity.
The plain purpose of the curtains is to obstruct the manatees on their normal routes. Intervenor argues that this obstruction constitutes a violation of the Florida Manatee Sanctuary Act. Perhaps this obstruction is a technical violation, but it is insubstantial when measured against the intent and effect of protecting the manatees from two real risks. In this context, the use of the curtains no more violates the
statute than would a person trying to push a manatee out of the path of an oncoming motorboat.
The Administrative Law Judge excluded evidence offered by Petitioner and Intervenor concerning what could be regarded as secondary or cumulative impacts of maintenance dredging upon manatees. The Administrative Law Judge ruled that the focus of the maintenance dredging statute, although not necessarily the Florida Manatee Sanctuary Act, was limited to conditions in existence during construction and for a reasonable period after construction, but not to the ultimate impact upon manatees of the presence of more and larger boats in the canals and Deep Lagoon following the maintenance dredging.
As proposed and executed, the maintenance dredging met the substance of this requirement.
Sixth, maintenance dredging cannot disturb previously undisturbed areas. The record does not identify any undisturbed areas affected directly or indirectly by the maintenance dredging. As proposed and executed, the maintenance dredging met this requirement.
Seventh, the contractor must use control devices and best management practices for erosion and sediment control to prevent bank erosion and scouring and to prevent turbidity, dredged material, and toxic or deleterious substances from discharging into adjacent waters during maintenance dredging.
The failure of the March 3 letter to state where Applicant's contractor intended to place turbidity curtains raises a question as to the satisfaction of this requirement by the proposed activity. However, the absence of a finding of turbidity or other contaminants crossing the mangrove fringe to the north of the north canal renders this deficiency immaterial.
Petitioner and Intervenor argue that the clean fill that subsided or eroded into the central canal constituted a violation of this requirement. This argument is incorrect for two reasons. First, the clean fill had nothing to do with the maintenance dredging; it was present pursuant to the Original Permit and the contaminant dredging. There is no reason why activity in connection with the contaminant dredging should affect Applicant's eligibility for the maintenance dredging exemption. Second, the clean fill that subsided or eroded into the central canal was immaterial. The record does not demonstrate that a substantial amount entered the water, and the findings of fact demonstrate the immateriality of the subsidence of insubstantial amounts of fill under all circumstances.
As proposed and executed, the maintenance dredging met the substance of this requirement.
Thus, the depths and widths of the maintenance dredging, as proposed and executed, violated two of the requirements of the statutory maintenance dredging exemption. Even though Applicant has completed the maintenance dredging,
administrative jurisdiction remains under Friends of the Hatchineha, Inc. v. Department of Environmental Regulation, 580 So. 2d 267 (Fla. 1st DCA 1991).
In Hatchineha, the agency denied a request for a hearing to challenge the agency's decision, under an agricultural exemption to the DAF permitting process, to allow a person to construct a driveway through one mile of undisturbed wetlands. The court reversed and remanded, holding that the agency's recognition of an exemption constituted proposed agency action as to which the challenger was entitled to a hearing. Recognizing that the challenger could seek injunctive relief in court, the court held that the challenger could still pursue the alternative of an administrative proceeding, even though the driveway had already been constructed. The opinion is silent as to the remedies available following such an administrative determination, but DEP's March 13 letter warns of the revocation of the exemption if it later determines that the basis for the exemption is materially incorrect.
New Permit
Permitting Jurisdiction and Adoption of SFWMD Rules
Sections 373.413(1) and 373.416(1) generally authorize DEP and the water management districts to adopt rules and impose permit conditions to ensure that the construction, alteration, operation, or maintenance of stormwater management systems complies with applicable statutes and rules and does not harm the
water resources. Section 373.413(2) requires that a person seeking to perform a regulated activity must obtain a permit before commencing work.
Section 373.046 authorizes DEP and the water management districts to enter into interagency agreements for the delegation of permitting responsibilities. Section 373.414(9) requires DEP and the water management districts to consolidate their ERP rules to the extent possible.
By Rule 62-330.200(4), DEP has adopted various rules of SFWMD. Rule 62-330.200(4) states:
The following rules are adopted by reference for application by the Department within the geographical jurisdiction of the South Florida Water Management District as set forth in Section 373.069, F.S.:
(a) Sections 40E-1.107, 40E-1.601, 40E- 1.602(4), 40E-1.604, 40E-1.611, and 40E-
1.615, F.A.C.;
Chapter 40E-4, F.A.C., except Sections 40E-4.031, 40E-4.0515, 40E-4.052, 40E-4.054, 40E-4.061, 40E-4.091, 40E-4.101, 40E- 4.201, 40E-4.205, 40E-4.303, 40E-4.305, 40E-4.321, 40E-4.331, 40E-4.341, 40E-4.351, 40E-4.361, and 40E-4.371, F.A.C., and including the document entitled "Basis of Review . . ." dated 1995, except sections 1.0 through 3.1.2.9, 4.4 and 4.5, and except as provided in subparagraphs 1. through 2.
Subsection 4.2.2: The second paragraph is amended to read "In evaluating whether an applicant has provided reasonable assurances under subsection 4.2.2, de minimis effects shall not be considered adverse for the purposes of this subsection."
Subsection 4.2.2: The last paragraph is amended to read: "The need for a wildlife survey will depend upon the likelihood that the site is used by listed species, considering site characteristics and the range and habitat needs of such species,
and whether the proposed system will impact that use such that the criteria in subsection 4.2.2-4.2.2.3 and subsection 4.2.7 will not be met. In assessing the likelihood of use of a site by listed species, the Department will consult scientific literature, such as 'Closing the Gaps in Florida's Wildlife Conservation System' (Florida Game and Fresh Water Fish Commission, 1994) and the Florida Natural Areas Inventory Survey methodologies employed to inventory the site must provide reasonable assurances regarding the presence or absence of the subject listed species."
Chapter 40E-40, F.A.C., except
Sections 40E-40.031, 40E-40.051, 40E-40.061, 40E-40.091, 40E-40.321, 40E-40.331, 40E-
40.341 and 40E-40.351, F.A.C.; and
Chapter 40E-41, F.A.C.
The Department will conduct a study of the implementation of Sections 4.2.1 and 4.2.7(b) of the Basis of Review and report to the Environmental Regulation Commission by July 1, 1996, recommending to the Commission whether amendments to these rules should be proposed.
The Basis of Review applies to "regulated activit[ies]." According to Basis of Review Section 2.28, a "regulated activity" is the "construction, alteration operation, maintenance, abandonment or removal of a surface water management system, including dredging and filling, regulated pursuant to Part IV, Chapter 373, F.S." As noted above, DEP did not adopt this section of the Basis of Review.
However, DEP adopted Rule 40E-4.301(1), which requires that an applicant seeking an ERP shall provide "reasonable assurance" that the "construction, operation, maintenance, removal or abandonment or a surface water management" satisfies various requirements.
SFWMD Rule 40E-4.301, which DEP adopted, provides at subsection (1) that the reasonable assurance concerning system construction, operation, and maintenance is an assurance that the system:
will not adversely impact the value of functions provided to fish and wildlife and listed species by wetlands and other surface waters;
will not adversely affect the quality of receiving waters such that the water quality standards . . . will be violated;
will not cause adverse secondary impacts to the water resources; [and]
(j) will be conducted by an entity with the sufficient financial, legal and administrative capability to ensure that the activity will be undertaken in accordance with the terms and conditions of the permit, if issued[.]
Rule 40E-4.301(2) provides:
If the applicant is unable to meet water quality standards because existing ambient water quality does not meet standards, the applicant must comply with the requirements set forth in subsection 4.2.4.5 of the Basis of Review . . ..
177. Rule 40E-4.301(3) states:
The standards and criteria, including the mitigation provisions, and the provisions for elimination or reduction of impacts, contained in the Basis of Review shall
determine whether the reasonable assurances required by subsection 40E-4.301(1) and section 40E-4.302, F.A.C., have been provided.
Rule 40E-4.302, which DEP adopted, requires "reasonable assurance" that the "construction, alteration,
operation, maintenance, removal, and abandonment" of a "system" will not cause unacceptable cumulative impacts upon wetlands and other surface waters.
Applicable Provisions of Basis of Review
Subject to a few exceptions not relevant to this case, Basis of Review Section 4 generally identifies two types of regulated activities: former-DAF (or in-water) activities and former-SWM activities. Basis of Review Section 4 refers to former-DAF activities by describing the regulated activity as "located in, on, or over wetlands or other surface waters." For example, Basis of Review Section 4.2.3 imposes the seven public- interest requirements only upon former-DAF ERPs. When this qualifying clause is omitted, the following provisions in Basis of Review Section 4 typically apply to both former-DAF activities and former-SWM activities.
The basic contention among Petitioner, Applicant, and DEP is the extent, if any, to which the Basis of Review requires DEP to consider, in granting a former-SWM permit, water quality issues apart from the volumetric water quality requirements contained in Basis of Review Section 5. Applicant and DEP contend that the New Permit, as a former-SWM ERP, requires compliance only with the Basis of Review Section 5, which is entitled, "Water Quality Criteria." Petitioner contends that the New Permit, even though a former-SWM ERP, must also comply with
Basis of Review Section 4, which is entitled, "Environmental Criteria."
The New Permit complies with Basis of Review Section 5.2.1, which is entitled, "Volumetric Requirements." Basis of Review Section 5.2.1(a)1 provides that wet detention volume shall be the greater of the first inch of runoff or 2.5 inches of runoff times the percentage of imperviousness. Basis of Review Section 5.2.1(a)2 provides that dry detention volume shall be only 75 percent of wet detention volume. The proposed system, which is a dry detention system, meets the higher standard imposed upon wet detention systems.
However, the Basis of Review clearly warns that the volumetric requirements of Basis of Review Section 5 are minimum requirements whose satisfaction does not assure an ERP or even satisfaction of all water quality standards contained in the Basis of Review. Basis of Review Section 4.2.4 cautions that the short-term and long-term water quality requirements set forth in Basis of Review Section 4.2.4 "are in addition to the water quality requirements found in section five of this Basis of Review." Additionally, other provisions of Basis of Review Section 4, besides Basis of Review Section 4.2.4, also apply to the New Permit.
Setting more comprehensive objectives than would ordinarily be served by a quantitatively driven, volumetric approach to assessing the water quality performance of a surface
water management system, Basis of Review Section 4.0 declares the "project permitting goal" of "no net loss in wetland and other surface water functions." Basis of Review Section 4.1 recognizes that "[m]aintenance of water quality standards in applicable wetlands and other surface waters is critical to their ability to provide many of these functions."
In achieving these more ambitious objectives, Basis of Review Section 4 harmonizes the differences between the former- DAF ERPs and former-SWM ERPs, on the one hand, and the Legislative mandate to consolidate these two permitting regimes, on the other hand. Through careful consideration of the different effects of in-water and upland activities and thoughtful use of language, the Basis of Review contains a comprehensive and comprehensible permitting scheme to cover all regulated activities.
In terms of language, as noted in the findings of fact, Basis of Review Section 4 invariably describes former-DAF (or in-water) regulated activities as "located in, on, or over wetlands or other surface waters." When this limiting, introductory language is absent, the ensuing regulatory provision applies to both kinds of ERPs: former-SWM permits and former-DAF permits.
The first nonintroductory section of Basis of Review Section 4.0 identifies which Basis of Review provisions apply to which kinds of proposed activities. Basis of Review Section
4.1.1(a) requires applicants to provide reasonable assurance that a "regulated activity will not adversely impact the value of functions provided to fish and wildlife and listed species by wetlands and other surface waters" and refers the reader to Basis of Review Section 4.2.2. This provision applies to all regulated activities--former-DAF ERPs and former-SWM ERPs. Basis of Review Section 4.1.1(b) requires applicants to provide reasonable assurance that a "regulated activity located in, on, or over wetlands or other surface waters" will not be "contrary to the public interest . . ." and refers the reader to Basis of Review Sections 4.2.3 through 4.2.3.7. This provision applies only to former-DAF ERPs.
Referring without qualification to a "regulated activity," Basis of Review Section 4.1.1(c) prohibits any regulated activity from "adversely affect[ing] the quality of receiving waters" so as to violate applicable water quality standards. Referring without qualification to a "regulated activity," Basis of Review Section 4.1.1(f) prohibits any regulated activity from causing "adverse secondary impacts to the water resources" and refers the reader to Basis of Review Section
4.2.7. Referring without qualification to a "regulated activity," Basis of Review Section 4.1.1(g) prohibits any regulated activity from causing "unacceptable cumulative impacts upon wetlands and other surface waters" and refers the reader to
Basis of Review Sections 4.2.8 through 4.2.8.2. These provisions clearly apply to former-SWM and former-DAF activities.
Basis of Review Section 4.2.1 provides for the minimization of activities and mitigation of impacts. Applying to any regulated activity, this section requires the issuing agency, "in determining whether an application will be approved," to consider the practicability of design modifications to reduce or eliminate impacts, as well as mitigation. This section states in part: "To receive District approval, a system cannot cause a net adverse impact on wetland functions and other surface water functions which is not offset by mitigation." Basis of Review Section 4.2.1.1 adds that an applicant that declines to minimize its project, when minimization is practicable, may not obtain a permit by mitigation alone. Although DEP's adoption of Section
4.2.1 is conditioned upon a study with possible recommendations of amendments (by July 1, 1996), DEP appears to have made no changes to SFWMD's minimization and mitigation rule.
Also applying to any regulated activity, Basis of Review Section 4.2.2 requires an applicant to provide "reasonable assurance that a regulated activity will not impact the values of wetland and other surface water functions so as to cause adverse impacts to: (a) the abundance and diversity of fish, wildlife and listed species; and (b) the habitat of fish, wildlife and listed species." As clarified by DEP in its adoption of Basis of Review Section 4.2.2, de minimis effects are not adverse.
As already noted, the public-interest criteria of Basis of Review Section 4.2.3 do not apply to the New Permit.
Applying to any regulated activity, Basis of Review Section 4.2.4 requires an applicant to provide "reasonable assurance that the regulated activity will not violate water quality standards . . .." These assurances apply to long-term and short-term effects.
Under long-term considerations, Basis of Review Section 4.2.4.2(a) requires that an applicant address, among other things, the following:
the potential of a constructed or altered water body to violate water quality standards due to its depth or configuration. For example, the depth of water bodies must be designed to insure proper mixing so that the water quality standard for dissolved oxygen will not be violated in the lower levels of the water body, but the depth should not be so shallow that the bottom sediments are frequently resuspended by boat activity. Water bodies must be configured to prevent the creation of debris traps or stagnant areas which could result in violations of state water quality standards.
long term erosion, siltation or propeller dredging that will cause turbidity violations.
prevention of any discharge or release of pollutants from the system that will cause water quality standards to be violated.
Basis of Review Section 4.2.4.3 addresses docking facilities. Although the New Permit is for a surface water management system, prominent among the secondary effects of the New Permit, given Original Permit Specific Condition 5.B, is the
addition of 14,440 square feet of overwater decking through the addition of new wet slips. Basis of Review Section 4.2.4.3 thus guides consideration of this particular secondary impact.
Basis of Review Section 4.2.4.3 requires hydrographic information or studies if more than 10 wet slips are involved. The proposed activity is intended and reasonably expected to permit ten times this threshold. The purpose of the hydrographic information is to document the flushing time of the water at the docking facility.
Basis of Review Section 4.2.4.5 applies to all "proposed activities" and requires that, if the site of the activity does not meet state water quality standards, the applicant "must demonstrate compliance with the water quality standards by meeting the provisions in 4.2.4.1, 4.2.4.2, and 4.2.4.3, as applicable, and for the parameters which do not meet water quality standards, the applicant must demonstrate that the proposed activity will not contribute to the existing violation." If the proposed activity contributes to existing violations, the applicant must propose mitigation.
Applying to any regulated activity, Basis of Review Section 4.2.7 requires that an applicant provide reasonable assurance that the activity will not cause "adverse secondary impacts to the water resource . . .." The section explains that "[a]quatic or wetland dependent fish and wildlife are an integral part of the water resources which the District is authorized to
protection under Part IV, Chapter 373, F.S." The section adds that listed species, of which the manatee is one, "are particularly in need of protection."
Basis of Review Section 4.2.7 states that the District will review a proposed system by evaluating its impacts to, among other things, water quality and wetland and surface water functions identified in Basis of Review Section 4.2.2.
Basis of Review Section 4.2.7(a) requires the applicant to provide reasonable assurance that the secondary impacts from the "intended or reasonably expected uses of a proposed system" will not cause violations of water quality standards or adverse impacts to the functions of wetlands or other surface waters.
Basis of Review Section 4.2.7(a) notes that secondary impacts may include "[i]mpacts such as boat traffic generated by a proposed dock, boat ramp or dry dock facility, which causes an increased threat of collision with manatees" and "impacts associated with docking facilities as described in paragraphs 4.2.4.3(f) and (h) [fueling and disposal of solid waste, such as fish remnants]." For such impacts, the issuing agency must consider the "specific activities proposed and the potential for such impacts."
Section 4.2.7(d) elaborates:
An applicant shall provide reasonable assurance that the following future activities will not result in water quality violations or adverse impacts to the
functions of wetlands and other surface waters . . .:
2. On-site and off-site activities regulated under Part IV, Chapter 373, F.S., or activities described in section 403.813(2), F.S., that are very closely linked and causally related to the proposed system.
This section adds: "As part of this review, the District will also consider the impacts of the intended or reasonably expected uses of the future activities on water quality and wetland and other surface water functions." The analysis under Section 4.2.7(d)2 will include consideration "of those future projects or activities which would not occur but for the proposed system
. . .."
However, Basis of Review Section 4.2.7 states that the District will not consider "remotely related secondary impacts" or de minimis impacts. A cited example of a de minimis or remotely related secondary impact is the deterioration in air quality caused by increased vehicular traffic facilitated by road construction.
The distinction between direct and secondary impacts can be difficult to draw. Traditionally, secondary impacts were all of noncumulative impacts caused not by the construction of the permitted project, but by the development facilitated by the construction of the permitted project. See, e.g., The Conservancy, Inc. v. A. Vernon Allen Builder, Inc., 580 So. 2d 772 (Fla. 1st DCA), rev. denied 591 So. 2d 631 (Fla. 1991) and
Florida Power Corporation, Inc. v. Department of Environmental Regulation, 605 So. 2d 149 (Fla. 1st DCA 1992), rev. denied 650
So. 2d 989 (Fla. 1994).
As already noted, an unadopted Basis of Review definition and an adopted SFWMD rule define a regulated activity to include the operation of a system, not merely the construction, alteration, or maintenance of a system. It is impossible to assess the operation of a surface water management system without considering the input of surface water, and it is impossible to consider the input of surface water without considering the upland uses that will affect the rate, quantity, and quality of surface water entering the system.
As noted above, Basis of Review Section 4.2.7(a) defines secondary impacts in terms of potential impacts from uses intended or reasonably expected to be facilitated by the proposed system. Therefore, the direct impacts of the operation of a proposed system require consideration of the uses already in existence, and the secondary impacts of the operation of a proposed system require consideration of the uses intended or reasonably expected to be facilitated by the proposed system.
In this case, direct impacts of the operation of the system include the existing marine and upland uses associated with the marina, including 61 wet slips, 200 dry slips, and the present buildings. Secondary impacts of the operation of the system include the marine and upland uses that would be
facilitated by the New Permit, such as 100 new wet slips, 227 new dry slips, and 115,000 square feet of buildings.
Applying to all regulated activities, Basis of Review Section 4.2.8 requires an applicant to provide "reasonable assurances that a regulated activity will not cause unacceptable cumulative impacts upon wetlands and other surface waters within the same drainage basin . . .." However, the rule limits the analysis to certain activities for which permits have been sought or approval has been secured or is vested. In the absence of evidence of such permits and given the outcome of the analysis of direct and secondary impacts, this recommended order does not consider which party had the burden of proof or the burden of going forward with the evidence concerning the presence of other permits or approvals.
Application of Basis of Review
In its proposed recommended order, DEP argues in the alternative that, instead of determining that former-SWM ERPs must satisfy the requirements of Basis of Review Section 4, the Administrative Law Judge rule that Petitioner is estopped from litigating Applicant's entitlement to the New Permit. DEP contends that all of the Section 4 issues were resolved in the case that culminated in the Original Permit.
This argument ignores the fact that the Original Permit, as a DAF permit, did not permit the upland improvements, such as the buildings and dry slips. This argument also attempts
to read the Original Permit, which was issued by DEP, as somehow limiting the permitting jurisdiction of SFWMD, which, at the time of the Original Permit, was the permitting agency for the New Permit.
Original Permit Specific Condition 5.B does not vest in Applicant a right to an artificially constrained review of its application to construct a surface water management system on the uplands of its marina. As found in the findings of fact, DEP's argument overlooks the purpose of Specific Condition 5.B to achieve a net improvement in water quality and the adverse changing circumstances in the past four years; these factors alone necessitate consideration whether Applicant's proposed system meets the Basis of Review Section 4 requirements in terms of water quality and surface water functions.
In terms of direct impacts, the construction of the system will not violate any provisions of Basis of Review Section 4. Applicant has proposed adequate construction-period provisions to protect the waters from construction-related impacts.
In terms of direct impacts, the maintenance of the system violates provisions of Basis of Review Section 4 for the failure of the New Permit to ensure the safe disposition of the contaminants pumped from the underground vaults.
In terms of direct impacts, the operation of the system will not violate any provisions of Basis of Review
Section 4. No system presently exists at the marina, and the proposed system will operate to remove some contaminants from runoff generated by the existing uses at the marina. A contrary finding would require a finding that, for existing uses, the existing perviousness of the uplands provides more stormwater treatment than would the proposed system. This unlikely proposition is rendered even more unlikely by the relative imperviousness of the prevailing soils at the site, although three and one-half feet separate the ground surface from the top of the wet season water table. It is more likely that the treatment of even 2.5 inches of runoff better protects water quality than the treatment presently offered by the relatively impervious uplands, although deficiencies in the maintenance program make this an even closer question.
The secondary impacts in this case are the increased boat traffic and intensification of land uses associated with the development of 100 new wet slips, 227 new dry slips, and 115,000 square feet of buildings, including a restaurant. Unless the New Permit is issued, the new slips and buildings will not be built; the purpose of the New Permit is to facilitate this marine and upland development. The record provides no basis for finding that marketing challenges reduce the likelihood of full utilization of these developments. The popularity of boating in Lee County and the proximity of this marina to downtown Fort
Myers preclude a finding that the marketing of the new marina capacity will be a problem.
Secondary impacts too remote for consideration include boating traffic associated only with the restaurant (i.e., trailer-boaters or boaters who dock their boats elsewhere entering the canals to eat at the restaurant) and, contrary to Petitioner's contention, intoxicated boaters leaving the restaurant and operating their boats so as to endanger manatees. The record fails to demonstrate the likelihood of these seemingly speculative relationships. The question is closer as to upland traffic associated only with the restaurant (i.e., persons not associated with the marina visiting the restaurant by means other than boat). However, the record also fails to demonstrate the likelihood of this relationship.
In terms of secondary impacts, Applicant has failed to provide reasonable assurance that the operation of the proposed system will not adversely impact the value of functions provided to fish and wildlife, including listed species, by wetlands and other surface waters. (Rule 68A-27.003(1)(a)31 classifies the West Indian manatee as an endangered species.) In this regard, Applicant has failed to provide reasonable assurance that the proposed system will not adversely impact the abundance and diversity and habitat of fish and wildlife, including listed species.
Increased boating traffic will present an unreasonable risk of collision with the manatee, given the poor compliance of boaters with speed limits and the increasing rate of manatee mortality in this area. Water quality violations in terms of copper, dissolved oxygen, and total coliform bacteria will also adversely affect the manatees.
In terms of secondary impacts, Applicant has failed to provide reasonable assurance that the operation of the proposed system will not adversely impact the quality of receiving waters so as to violate applicable water quality standards.
Water quality concerns arise from issues concerning the capacity of the proposed system (especially given its proximity to the canals) and the lack of an enforceable maintenance program; dissolved oxygen, copper, and total coliform violations, one lead violation; dramatically deteriorating levels of dissolved oxygen; the presence of dead-end canals; contamination already present at the marina site; recent excessive maintenance dredging; replacement of the flushing canal with culverts; allowance of liveaboards; relocation of the boat lift to the north canal; and failure to supply a new flushing study.
Applicant has also failed to show that it has designed the proposed system to eliminate or reduce the secondary impacts listed above, or that such design modifications are
impracticable. Given these failures, consideration of mitigation is premature.
DEP witnesses repeatedly expressed concern with the burden of supplementing the volumetric approach in issuing
former-SWM ERPs with the case-by-case approach in issuing former- DAP ERPs. As supplemented by the specific provisions of the Basis of Review, the objectives of the Basis of Review serve not only to establish the necessity for a fact-driven, case-by-case approach to former-SWM ERP permitting, but also to suggest that the burden of such an approach often may not be as great as the burden of former-DAF permitting. The intensity of analysis of each proposed system--whether a former-DAF or a former-SWM--is driven by the facts of each proposed system and its direct, secondary, and cumulative impacts on the water resources. In- water systems may, but do not always, involve more immediate direct and secondary impacts to the water resources, but this case, involving an upland system immediately adjacent to stressed waters of the state that host manatees, illustrates an example of a former-SWM activity that also presents immediate direct and secondary impacts to the water resources.
The hypotheticals considered at the hearing of a Wal- Mart or boat barn on U.S. Route 41 (presumably on relatively high, well-drained land a considerable distance from the Caloosahatchee River or a high-functioning waterbody, or other unique natural resource) are intended to illustrate examples of
former-SWM activities that present less immediate, if any, direct and secondary impacts to the water resources. The Basis of Review prohibits the consideration of secondary impacts that are remotely related or de minimis. These provisions should considerably allay DEP concerns as to the burden of the necessary analysis.
The rule of reason introduced by the prohibitions against considering secondary impacts that may be speculative or negligible is supplemented by the recurring standard of "reasonable" assurance, which addresses not only the likelihood of an adverse impact, but also, even if likely, the significance or materiality of such an impact.
As contemplated by the Basis of Review, facts drive the intensity, as well as the outcome, of the analysis of ERP permitting. The above-described rules of reason guide the factual analysis of each application; proposed activity; proposed system; and the direct, secondary, and cumulative impacts resulting from the proposed activity. But DEP witnesses must accept the burden of detailed analysis where, as here, an applicant proposes, as an intended consequence of a former-SWM ERP, to more than double the capacity of a marina that adjoins waters with serious water quality violations and that frequently host manatees, and to serve the facilitated development with a proposed system raises serious capacity and maintenance questions.
It is
RECOMMENDED that the Department of Environmental Protection enter a final order revoking its determination of an exemption for maintenance dredging in DOAH Case No. 98-3901 and denying the application for an environmental resource permit in DOAH Case No. 98-5409.
DONE AND ENTERED this 24th day of November, 1999, in Tallahassee, Leon County, Florida.
ROBERT E. MEALE
Administrative Law Judge
Division of Administrative Hearings The DeSoto Building
1230 Apalachee Parkway
Tallahassee, Florida 32399-3060
(850) 488-9675 SUNCOM 278-9675
Fax Filing (850) 921-6847 www.doah.state.fl.us
Filed with the Clerk of the Division of Administrative Hearings this 24th day of November, 1999.
COPIES FURNISHED:
Kathy Carter, Agency Clerk Office of the General Counsel
Department of Environmental Protection Mail Station 35
3900 Commonwealth Boulevard
Tallahassee, Florida 32399-3000
Teri Donaldson, General Counsel Department of Environmental Protection Mail Station 35
3900 Commonwealth Boulevard
Tallahassee, Florida 32399-3000
T. Elaine Holmes, Attorney
14502 North Dale Mabry, Suite 200
Tampa, Florida 33618
David Gluckman Gluckman and Gluckman
541 Old Magnolia Road Crawfordville, Florida 32327
Matthew D. Uhle Humphrey & Knott, P.A. 1625 Hendry Street
Fort Myers, Florida 33901
Francine M. Ffolkes
Senior Assistant General Counsel Department of Environmental Protection 3900 Commonwealth Boulevard
Mail Station 35
Tallahassee, Florida 32399-3000
NOTICE OF RIGHT TO SUBMIT EXCEPTIONS
All parties have the right to submit written exceptions within 15 days from the date of this recommended order. Any exceptions to this recommended order must be filed with the agency that will issue the final order in this case.
| Issue Date | Proceedings |
|---|---|
| Feb. 02, 2000 | Final Order filed. |
| Nov. 24, 1999 | Recommended Order sent out. CASE CLOSED. Hearing held February 11 and May 3-4, 1999) |
| Oct. 25, 1999 | (Respondent) Request to Expedite Recommended Order in Case 98-5409 filed. |
| Jul. 29, 1999 | Department of Environmental Protection`s Proposed Recommended Order; Disk filed. |
| Jul. 29, 1999 | Brenda B. Sheridan`s Proposed Recommended Order filed. |
| Jul. 29, 1999 | Brenda B. Sheridan and Save the Manatee Club Proposed Recommended Order filed. |
| Jul. 29, 1999 | Deep Lagoon Boat Club, Ltd`s Proposed Recommended Order filed. |
| Jun. 22, 1999 | Letter to Judge Meale from M. Berger Re: Enclosing missing pages from transcript; Pages (filed via facsimile). |
| Jun. 22, 1999 | (DEP) Response to Motion to Expedite filed. |
| Jun. 21, 1999 | Order Granting Extension of Time to File sent out. (parties shall file proposed recommended orders by 7/29/99) |
| Jun. 17, 1999 | (3 Volumes) Transcript of Proceedings filed. |
| Jun. 16, 1999 | (Respondent) Notice of Schedule Conflict/Amendment to Motion to Expedite (filed via facsimile). |
| May 28, 1999 | Deep Lagoon Boat Club, LTD`s Motion to Admit Copy of Department of Army Permit 1986-00-986 Into Record filed. |
| May 12, 1999 | (Respondent) Motion to Expedite Preparation and Filing of Proposed Recommended Orders and Recommended Order in Case 98-5409 filed. |
| May 03, 1999 | CASE STATUS: Hearing Held. |
| Feb. 17, 1999 | Supplemental Notice of Hearing sent out. (hearing set for May 3-4, 1999; 9:00am; Ft. Myers) |
| Feb. 11, 1999 | Hearing Partially Held; see case file for applicable time frames. |
| Feb. 09, 1999 | Sheridan`s Motion for Official Recognition (filed via facsimile). |
| Feb. 08, 1999 | (DEP) Notice of Filing Revised Notice of Intent to Issue Environmental Resource Permit; Exhibits rec`d |
| Feb. 08, 1999 | Sheridan`s Response to Department of Environmental Protection`s Motion in Limine (filed via facsimile). |
| Feb. 05, 1999 | (DEP) Notice of Filing; Exhibit rec`d |
| Feb. 04, 1999 | Save the Manatee Club`s Opposition to the Motion in Limine rec`d |
| Feb. 04, 1999 | Save the Manatee Club`s Opposition to the Motion in Limine rec`d |
| Feb. 01, 1999 | Department of Environmental Protection`s Motion in Limine rec`d |
| Feb. 01, 1999 | Sheridan`s Response to Deep Lagoon Boat Club`s Motion in Limine (filed via facsimile). |
| Jan. 29, 1999 | Respondent Department`s Answers to Petitioner Brenda B. Sheridan`s First Interrogatories to Department (filed via facsimile). |
| Jan. 29, 1999 | Notice and Certificate of Service of Respondent DEP`s Answers to Petitioner`s First Interrogatories (filed via facsimile). |
| Jan. 25, 1999 | Notice of Serving Sheridan`s Answers to Interrogatories Numbered 1 Through 7 of Deep Lagoon Boat Club, Ltd. filed. |
| Jan. 22, 1999 | Motion in Limine (Respondent) rec`d |
| Jan. 15, 1999 | Order Denying sent out. (motion to postpone hearing is denied) |
| Jan. 12, 1999 | (Petitioner) Motion to Postpone Hearing (filed via facsimile). |
| Dec. 29, 1998 | Order Granting Motion to Correct Name of Respondent in Case Caption sent out. |
| Dec. 28, 1998 | (Respondents) Notice of Taking Deposition Duces Tecum filed. |
| Dec. 28, 1998 | (Petitioner) Response to Deep Lagoon Boat Club, Ltd.`s Motion to Dismiss filed. |
| Dec. 24, 1998 | (M. Uhle) Motion to Correct Name of Respondent in Case Caption filed. |
| Dec. 24, 1998 | (Respondent) Notice of Service of Interrogatories filed. |
| Dec. 22, 1998 | Department of Environmental Protection`s Response to Initial Order filed. |
| Dec. 21, 1998 | Notice of Serving Sheridan`s Answers to Interrogatories Numbered 1 Through 10 of Deep Lagoon Marina filed. |
| Dec. 21, 1998 | (Petitioner) Notice That Interrogatories Have Been Served filed. |
| Dec. 18, 1998 | (T. Elaine Holmes) Notice of Taking Deposition filed. |
| Dec. 17, 1998 | Notice of Hearing sent out. (hearing set for |
| Dec. 17, 1998 | Order of Consolidation and Notice of Hearing sent out. (98-3901 & 98-5409 consolidated; hearing set for 2/11/99; 9:00am; Ft. Myers) |
| Dec. 17, 1998 | Response of Deep Lagoon Boat Club, Ltd. to Petitioner`s First Request for Production of Documents; Response to Petitioner`s First Request for Admissions; Notice of Service of Answers to Petitioner`s First Interrogatories filed. |
| Dec. 09, 1998 | Notice of Related Case and Motion to Consolidate by Respondent Department of Environmental Protection filed. |
| Dec. 08, 1998 | (DEP) Notice of Filing; Notice of Related Case and Motion to Consolidate by Respondent Department of Environmental Protection filed. |
| Nov. 20, 1998 | (Petitioner) Notice of Service of Interrogatories; Interrogatories filed. |
| Nov. 16, 1998 | Petitioner Brenda B. Sheridan`s First Request for Production of Documents to Respondent Deep Lagoon Marina filed. |
| Nov. 16, 1998 | (Petitioner) Notice That Interrogatories Have Been Served; Petitioner Brenda B. Sheridan`s First Request for Admissions to Respondent Deep Lagoon Marina filed. |
| Oct. 29, 1998 | Order Allowing Intervention sent out. (for Save the Manatee Club) |
| Oct. 26, 1998 | Order Granting Continuance and Amended Notice of Hearing sent out. (10/28/98 hearing cancelled & reset for 2/11/99; 9:00am; Ft. Myers) |
| Oct. 14, 1998 | (Respondent) Unopposed Motion for Continuance (filed via facsimile). |
| Oct. 02, 1998 | Notice of Hearing sent out. (hearing set for 10/28/98; 8:00am; Ft. Myers) |
| Sep. 17, 1998 | (Respondent) Response to Initial Order filed. |
| Sep. 08, 1998 | Initial Order issued. |
| Sep. 04, 1998 | Save the Manatee Club`s Response to Respondent Deep Lagoon Marina`s Memorandum Opposing Motion to Intervene filed. |
| Sep. 04, 1998 | (Deep Lagoon Marina) Memorandum Opposing Motion to Intervene filed. |
| Sep. 04, 1998 | Save the Manatee Club Petition to Intervene filed. |
| Sep. 04, 1998 | Request for Assignment of Administrative Law Judge and Notice of Preservation of Record; Amended Petition to Intervene and Request for Formal Hearing to Reverse Agency Action (w/att`s); DEP Permit; Agency Action Letter filed. |
| Issue Date | Document | Summary |
|---|---|---|
| Jan. 31, 2000 | Agency Final Order | |
| Nov. 24, 1999 | Recommended Order | Dredging failed to establish width of maxium canal depth as originally designed; dredging did not qualify for maintenance exception. Department failed to consider impacts of environmental resource permit that was formerly surface water management permit. |
