The Issue The issue in this matter is whether the Joint Application for Environmental Resource Permit and Authorization to Use State-Owned Submerged Lands and Federal Dredge and Fill Permit to dredge sediments from specified areas in the Anclote River and surrounding bayous and lagoons should be granted.
Findings Of Fact Petitioner Henry Ross resides at 1005 South Florida Avenue, Tarpon Springs, Florida. The City of Tarpon Springs (City of Tarpon Springs or City) is located on the Gulf of Mexico and is a coastal community with 56 miles of shoreline. The City of Tarpon Springs is known as the "sponge capital of the world" and has a sponging industry that dates back to the early 1900s. Other activities within the City are recreational boating and shrimp and other commercial fishing operations. The Department of Environmental Protection (Department) is the agency of the State of Florida charged with the responsibility of regulating activities in, on, or over surface waters and wetlands of the state pursuant to Chapter 373 and the rules promulgated thereunder. Pursuant to these responsibilities, the Department is responsible for reviewing and taking final agency action on all environmental resource permit or dredge and fill permit applications. The City's Application, filed with the Department in December 1998 and at issue in this proceeding, is an environmental resource permit application for authorization to use state-submerged lands. The Application initially sought authorization for new dredging and maintenance dredging of approximately 16,888 cubic yards of sediment from 11 locations in or adjacent to the Anclote River and surrounding bayous and lagoons. These areas are Outstanding Florida Waters and are identified as follows: Area 1, Tarpon Bayou; Area 2, Kreamer Bayou (Upper Tarpon Bayou); Area 3, Kreamer Bayou (West Chesapeake Point); Area 4, Kreamer (Bayshore Access); Area 5, Sunset Lagoon; Area 6, Anclote River; Area 7, South Tarpon to Spring Bayou; Area 8, Minetta Bayou; Area 9, Innes Bayou; Area 10, Spring Bayou; and Area 11, Lake Lutea. Consistent with its procedures, the Department sent copies of the Application to all the appropriate agencies for comments and then initiated its own review of the Application. Copies of the Application were sent to Protected Species Management, formerly within the Department, but currently under the Florida Wildlife Conservation Commission; the Army Corps of Engineers; the Department of Community Affairs; and State Lands, an office in the Department responsible for determining how much of the project occurs on state submerged lands. These various offices responded by sending comments to the Department. Based on the agency comments, as well as the Department staff person’s own knowledge and experience, the Department requested additional information from Blasland, Bouck and Lee, Inc. (B.B.L.), the engineering firm that prepared the application on behalf of the City. Also of importance to the Department was the issue of whether the project proposed in the Application was new dredging or maintenance dredging. In order to make this determination, the Department requested additional information from B.B.L. and/or the City about past dredging in the area. This determination was necessary in order to ensure that the statutory criteria for issuing the permit was satisfied. If the City's proposed project were "new" dredging, there was a likelihood of increased boating traffic in the area. On the other hand, if the proposed project were maintenance dredging, there would likely be no increased boating traffic. B.B.L. and/or the City responded to the Department's request, indicating that there was not adequate evidence or information of past dredging. In the absence of such evidence or information, the Department relied on other information to determine if the proposed project was maintenance dredging or new dredging. Specifically, the Department reviewed the Application and other information submitted by the City and/or B.B.L., and aerial photos of the area from 1989, provided by the Army Corp of Engineers. The Department staff also considered observations made and information obtained as a result of their field inspections of the areas. Based on its review of all pertinent information, the Department found that, with the exception of Area 6, the areas designated for the proposed dredging activities were existing navigational channels and were currently functioning as such. Ultimately, the Department determined that the proposed project was a maintenance dredging project and that the purpose of the project was to have the City maintain these existing navigational channels, regardless of their origin. During the Department's 1999 field inspection, the Department staff looked at the depth and width of all existing channels. With regard to depth, the Department believed that the City should not dredge any deeper than the present channels. The Department's decision regarding the width and length of the channels was based on the existing depth of the channels; existing habitat values; the Department's site inspection; current site conditions; the current bathymetry provided by the City, which the Department confirmed; and consideration of what is necessary for safe and common navigation. With respect to Area 6, the Department found that there had been some degree of boating traffic in that area in the past. However, the Department concluded, based on its field inspection, that area had not been maintained adequately to consider it a functioning navigational channel. Therefore, dredging in Area 6 would be considered new dredging. After the Department staff conducted the 1999 field inspection, the Department sent a letter to the City, which recommended how the project could be modified and how some of the potential impacts could be minimized or avoided. Some of the Department's concerns involved the proposed dredging depths and widths of the channels discussed in paragraph 12, and the sensitive habitats in the areas to be dredged. The City addressed the concerns raised by the Department in a June 1999 letter and, in September 1999, the City modified its Application to address those concerns. The City's Application, as modified, significantly changed the whole concept of the project. In light of the modifications, the project changed from one that would increase boating traffic to one that would maintain current boating traffic. Because the Department concluded that the maintenance dredging proposed in the modified Application would not increase the frequency or size of boats using the areas or channels, there will be no secondary impacts associated with new or increased boating traffic. In response to the Department's concerns and requests, the City modified its Application to reduce the initially proposed dredging depths of the channels. For example, in some instances, the City had initially proposed that the depth of the channels be five feet, but subsequently, reduced the depth to three feet. Based on these modifications related to depths and widths, at this time, the City will not dredge Areas 1, 7, 8, and 10 because no dredging is necessary to maintain current depths of the channels. However, if there is accretion or accumulation of sediment at some of those locations, the City will have the right under the permit proposed to be issued, to dredge those areas during the term of the permit. Any dredging, however, would have to be consistent with the terms of the permit. At this time, only three areas have evidence of accreted sediments (accumulated silt) and will be dredged: Area 5, Sunset Lagoon; Area 9, Innes Bayou; and Area 11, Lake Lutea. The City's Application, as modified, reduces or minimizes the impact on the environment in the areas to be dredged, as well as the impact on sea grasses and manatees in those areas. Moreover, the proposed maintenance dredging project will reduce the risks for manatees associated with shallow water by increasing the water depths to safer levels. The Save the Manatee Club (STMC) opposes the proposed dredging project. The STMC considers the proposed project as new dredging and its typical response to such projects is that new dredging may affect manatees or manatee habitats in a negative manner. In this case, the STMC recommended that the Department deny new dredging because the cumulative effect from increased boat traffic will be adverse to manatees and will have more than a negligible effect on the species. Notwithstanding its opposition to the project, the STMC recommended measures to protect manatees should the project be approved. Most of these measures were included in the conditions incorporated in the Notice of Intent to Issue Environmental Resource Permit. In reviewing the City's modified Application, the Department considered the cumulative impact of the proposed project. Contrary to the opinion of the STMC, the Department reasonably determined that because this proposed project involves maintenance of existing navigational channels, there is little potential for cumulative impacts to be an issue. The Florida Wildlife Conservation Commission (Commission) is required to review and comment on all environmental resource applications relative to how the projects will impact manatees. After carefully reviewing and considering the modified Application, the Commission determined that the project, as proposed in the modified Application, varied significantly from the original Application and concluded that "the areas to be dredged are limited to those considered maintenance dredging," and that sea grasses have been avoided. The Commission also concluded that the conditions in the Notice of Intent to Issue regarding manatees' protection are adequate to offset the expected impacts to manatees from the proposed activity. The Notice of Intent to Issue includes the following conditions which minimize the impact to manatees: (1) a manatee observer must be designated and this observer must be in the water when the proposed work is being done; (2) if a manatee is sighted within 50 feet of the dredging activity, the activity will stop until the manatee is out of the area; (3) a log which details the sighting of manatees will be maintained; (4) work will not be performed after sunset because manatees cannot be seen during that time; (5) in-water work will be performed from March to November when manatees are less likely to be in the area; (6) when possible, work will be performed using a hydraulic dredge; and (7) boat traffic within the area will operate at a slow speed during the dredging activity. To ensure that conditions regarding sea grass had not changed since the Department's field inspection more than two years prior to this proceeding, Department staff conducted another field inspection of the area on April 11, 2003, four days prior to this hearing. That field inspection focused on Area 6 because it was conducive to some presence of sea grass. The findings of the April 11, 2003, field inspection were consistent with past reports and field inspections, which revealed that the quantity and density of sea grass were extremely low. During the April 1999 inspection, only a few sprigs of sea grass were observed within or adjacent to the potential dredge area. Due to the continued low density of sea grass, the planned dredging activities do not pose any direct negative impacts to the environmentally-protected aquatic vegetation, including sea grasses. The Department has reasonable assurances that the State water quality standards will not be violated by the proposed permit. Initially, the Department had to establish whether sediments at the proposed areas to be dredged contain pollutants. To make this determination, the Department first used a tiered approach established by the Army Corps of Engineers and the Environmental Protection Agency. This tiered approach requires looking at the location of the proposed areas to be dredged and then looking at the consistency of the sediments in that area. Depending on the result of these reviews, additional testing might be required. In this case, the three sites where the proposed dredging was to be done were identified and grain-size analyses of sediments from each of the areas were completed. These analyses provided information regarding the percentage of fine sediments in the areas proposed to be dredged. The higher the percentage of finer sediments, the greater the potential that the sediments contain pollutants. Based on the grain-size analyses, the sediments from the three areas proposed to be dredged--Area 5, Sunset Lagoon; Area 9, Innes Bayou; and Area 11, Lake Lutea--were coarse enough that they did not have much potential to contain pollutants. Therefore, additional testing of those sites was not necessary. The Department then considered the City's modified Application in terms of how the water quality and quantity will be maintained during the dredging process. For the dredging project, the City proposed using "closed bucket" clamshell dredging and utilizing double floating silt barriers as the containment method. Upon review, the Department authorized the "closed bucket" clamshell dredging for this project. This method is an intermediate method of protecting against pollutants that may be generated by the dredging project. Although hydraulic dredging is a cleaner process, the "closed bucket" clamshell method is more appropriate for this dredging project because it involves "spot" dredging to remove high spots and to maintain the currently existing navigational depths. Pursuant to conditions included in the Notice of Intent to Issue, the City must meet State water quality standards during the dredging events. If the State water quality standards are exceeded, the State has the power to enforce the water quality standards and to shut down any dredging operation that clearly exceeds that criteria. Mark Peterson is currently, and has been for the past two years, the environmental manager of the Department's Environmental Resource Permitting Section. Prior to this, Mr. Peterson was an environmental specialist with the Department. Mr. Peterson has a bachelor of science degree in biology from University of South Florida and a bachelor of science degree in horticulture from Florida Southern College. During his employment with the Department, Mr. Peterson has reviewed thousands of applications for environmental resources permits, exemptions, or authorizations to use State submerged lands. Mr. Peterson has made site visits to locations involved in instances where permits have been issued, with the exception of about two of the 500 approved applications, exemptions, or authorizations. About 50 of the projects were similar to the project at issue in this case. Mr. Peterson has been the Department's primary reviewer of the City's Application and modified Application for this proposed dredging project since its inception. Based upon Mr. Peterson's review of all relevant documents and analyses, the comments of appropriate agencies, and his field inspections of the site, the project, as proposed in the modified Application and the Notice of Intent to Issue Environmental Resource Permit, meets the public interest test set forth in Section 373.414(1). It is specifically found that: The activity will not adversely affect the public health, safety, and welfare or the property of others; The activity will not adversely affect the conservation of fish and wildlife, including endangered or threatened species or their habitat; The activity will not adversely affect navigation or the flow of water or cause harmful erosion or shoaling; The activity will not adversely affect the fishing or recreational values on marine productivity in the vicinity of the activity; The activity will be of a temporary nature because the channels tend to silt over time (over months, sometimes over many, many years; The activity will not adversely affect in any manner any significant historical and archaeological resources under the provisions of Section 267.061; and The activity will not affect the current condition and relative value of functions being performed by areas. In order to begin this dredging project, the City also needed to get approval from the United States Corps of Engineers and the Pinellas Water and Navigation Control Authority. These agencies have approved permitting the project.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that Respondent Department of Environmental Protection enter a final order granting the Application of the City of Tarpon Springs, as amended, and issuing Environmental Resources Permit No. 52-01481903-001. DONE AND ENTERED this 7th day of October, 2003, in Tallahassee, Leon County, Florida. S CAROLYN S. HOLIFIELD 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 7th day of October, 2003. COPIES FURNISHED: Doreen Jane Irwin, Esquire Department of Environmental Protection 3900 Commonwealth Boulevard Mail Station 35 Tallahassee, Florida 32399-3000 Henry Ross 1005 South Florida Avenue Tarpon Springs, Florida 34689 Thomas J. Trask, Esquire John G. Hubbard, Esquire Frazer, Hubbard, Brandt & Trask, LLP 595 Main Street Dunedin, Florida 34698 Kathy C. Carter, Agency Clerk Office of the General Counsel Department of Environmental Protection 3900 Commonwealth Boulevard Mail Station 35 Tallahassee, Florida 32399-3000 Teri L. Donaldson, General Counsel Department of Environmental Protection 3900 Commonwealth Boulevard Mail Station 35 Tallahassee, Florida 32399-3000
Findings Of Fact Mr. C. A. Rossetter, Petitioner, owns and resides in a house located adjacent to the Indian River at 1020 South Patrick (now Riverside) Drive in Indialantic, Florida, and has resided on that property for approximately 21 years. He owns a 31-foot power boat which draws 3.5 feet of water and is currently docked at his sister's house in neighboring Eau Gallie, Florida. His own property has no dock at the present time, and the water depth in the river, which out to a distance of several hundred feet is less than 3.5 feet, is therefore too shallow to allow access to his property by his boat. On June 11, 1982, Petitioner submitted a request to the Department to dredge, subsequently assigned number 050567924, which was received in the local office of the Department on June 15, 1982. This request was for permission to dredge next to a boat pier to be constructed which would allow access with his boat. The area to be dredged was 15 feet wide from the shoreline, out 100 feet to the end of the pier, then an additional 100 feet beyond, with a 15- by 20- foot area in front of the "L" end of the pier, north of the main dredging area. Drawings submitted with the application indicated the total volume to be dredged was 300 cubic yards. Proposed use of the property was to be private. When the application was received by the Department, it was reviewed by Barbara Bess, a marine biologist, in August, 1982. In September, 1982, Ms. Bess visited the site, talked with the Petitioner, and made general observations as to the site, the river, and the surrounding property. She returned to the property on October 7, 1982, with her supervisor, Mr. Reese Kessler, from the Department's Orlando office. Mr. Kessler is an expert in the effects of dredging on marine species and habitat. As a result of the two visits and her evaluation, on October 8, 1982, Ms. Bess submitted a memorandum on this application in which she thoroughly described the request, the area, and the effect the dredging would have on the ecology, ultimately concluding that the public interest would not be served by permitting the dredging of a navigational channel for one private landowner 1/ and that it would be far less damaging to the already impacted area to construct a long dock which, if kept under 1,000 square feet in area, would qualify for exemption from permit requirement status. She also recommended that the permit be denied. Thereafter, on November 9, 1982, the Department issued the Intent to Deny, pointing out that the proposed dredging would adversely affect 3,300 square feet of the Indian River marine biological resources, would serve only one individual property owner, and, therefore, was not in the public interest. The area where the Petitioner proposed the operation is exclusively residential with commercial areas approximately one mile to the south and three miles to the north at the causeways. Petitioner's property extends approximately 120 feet on the river and eastward to South Patrick Drive. The residence is a single family dwelling. Petitioner had previously installed a seawall approximately five feet waterward of mean high water. The area between the seawall and the shoreline has weed-covered water and has not been filled in. Petitioner had a prior permit for a dock (since expired) which called for a sloping riprap in front of the seawall. This has not been done. The river bottom at Petitioner's property is an almost totally unvegetated soft, fine gray sand and silt. There is an abundance of marine life present, however, including penaid shrimp, polychaetes, Nemertean worms, comb jellies, mollusks, annelids, and fish, primarily mullet. Dredging would be by means of a suction dredge to cut into the bottom. With the exception of one species of edible clam, the majority of the invertebrate sea life in the area serves as the bottom part of the food chain in the area as food for more advanced sea life forms such as fish, crabs, etc. Mullet, for example, which is quite populous here, is a commercially valuable species, as are snook, trout, and snapper. Dredging of the channel proposed would remove the top 2.5 feet of bottom, along with all the marine life that it contains. In its place over a period of time would accumulate a black, oozy silt (known to some as black mayonnaise) which settles into any depression left in the bottom. This silt permits the growth on nonlight-requiring algae and other plant life which, when decaying, creates hydrogen sulfide, the substance responsible for the terrible odor often experienced in the area. In addition, other types of less desirable life forms come in to replace that which is taken. While experience has shown in other areas where dredging has taken place that there is some regeneration of beneficial and favorable life forms, the affected area will never have the same degree of population of desirable sea life as exists before dredging. This is caused by the accumulation of silt in the dredged area which blocks oxygen from getting to the organisms which live in the bottom. Almost any activity can have an adverse effect on the bottom, such as walking across the bottom, water skiing above it, etc., but these activities, which do not deeply scar the bottom, have only a short-term and unmeasurable impact. A comparison of this short-term damage to the long-term damage of dredging and removal of a part of the bottom clearly reveals that the by far greater adverse impact comes from dredging. That which is removed by dredging is not soon replaced. Admittedly, the holes needed to insert pilings for the dock would also cause some damage, but not nearly as much. What is significant is the degree of damage caused by the options. In determining whether or not to grant a permit, the agency considers several factors. One is whether there will be damage to the ecology and the environment, and if so, how much. A second factor is the cumulative effect-- would this permit establish a precedent that would be undesirable from an ecological viewpoint? In the event there are affirmative findings of potential damage and the degree thereof, the next question is whether to grant the permit would be in the public interest. Here, in the opinion of Ms. Bess and Mr. Kessler, it would not. Other dredging in the area, such as that accomplished by the county approximately a mile from this site, which benefited only six families, cannot be compared because it was only to clean out a channel which had previously been dredged. Petitioner's would be cutting into virgin bottom and to do so for one family's private use, with its precedent-setting potential, when a far less damaging alternative is available cannot reasonably be justified as in the public good. Dredging for Petitioner in this area would have a substantial adverse impact on the marine ecology of the immediate area. Petitioner, as a riparian owner, has the right to enjoy his property, but the proposed alternative of a dock gives Mr. Rossetter ingress and egress to his property from the water with the least harm to the ecology of the river. Petitioner was served with a series of interrogatories pursuant to Rule 28-5.208, Florida Administrative Code, on January 10, 1983. He failed to answer these interrogatories. Petitioner was also served with a Request for Admissions under the same rule on January 20, 1983, and again failed to respond. Petitioner at no time requested relief from either attempt at discovery, even though he was reminded of his failure to comply, by the Hearing Officer, at the hearing.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That Petitioner's request for a dredge permit be denied. RECOMMENDED this 6th day of April, 1983, in Tallahassee, Florida. ARNOLD H. POLLOCK, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 6th day of April, 1983.
Findings Of Fact Charlotte Highlands is an approximately 97-acre mobile home subdivision in Charlotte County, Florida. The roads in the subdivision are unpaved. The stormwater sheet flow in the area is from west to east. To the east of Charlotte Highlands is a 21-acre hardwood swamp, the wetlands in question in this proceeding. Stormwater from the 97-acre subdivision west of the wetlands and from the 250 acres west of the subdivision flows to the east into the wetlands. Water flows out of the wetlands to the east, from the 21-acre wetlands through a stream into Myrtle Slough. Myrtle Slough is part of the waters of the State. The County wishes to create a stormwater drainage system for Charlotte Highlands. Under the County's plan, stormwater from the 97-acre subdivision would be discharged into the wetlands owned by Desrosiers Brothers. Although the County and the Department view this project as involving only the discharge of stormwater from the 97-acre subdivision into the wetlands, the stormwater discharged would include the stormwater flowing into the 97-acre subdivision from the 250 acres located directly west of the subdivision. The County met with individuals from the Southwest Florida Water Management District, and that agency questioned the method of calculations used by the County in determining the amount of runoff into the proposed drainage system. Although new calculations of stormwater runoff volume were performed by the County, those new calculations were not provided to the Department in the County's permit application. The wetlands in question contain cypress, maples, laurel oak, bay trees, percia, dahoon holly, buttonbush, ferns, palmetto, and wet pine. Some of these species, especially the maples, cannot withstand much flooding. The outflow from the wetland into Myrtle Slough is via a natural stream. Although there are some indications that some excavation may have taken place in the stream, such as the spoil located near the cattle watering pond near the mouth of the wetlands, water flows from the wetlands to Myrtle Slough through a natural watercourse with no man-made connections. The hydroperiod is the length of time water stays in a wetlands before it drains out of the wetlands. This determines the water level, the critical factor affecting a wetland's ability to perform its vital functions. If the rate or volume of either the inflow or outflow of a wetlands is altered enough, the water level changes, usually with adverse environmental consequences. Certain species of flora will die off if the water level rises too much. Others require high water levels for their survival. In order to assess the effects of a proposed alteration to such a system, one must determine the existing high pool and low pool. Donald H. Ross established the high and low pools for the County. He went to the wetlands and observed the stain, rack, and lichen lines on tree trunks. He also observed the cypress buttress. Ross also determined the invert of the stream, the elevation at which water first starts to run in it. Based solely on this site visit, the County determined the high pool in the wetlands to be at 14.8 NGVD and the low pool to be at 14.1 NGVD. No rainfall data was collected and analyzed; no hydrological studies were performed; no observations were made over a period of time. There are two aspects of this project which can alter the hydroperiod of the wetlands. The first involves the amount of water entering the wetlands, and the second involves the amount of water leaving the wetlands. Currently, runoff from the 97-acre subdivision as well as the 250-acre area west of the subdivision drains toward the wetlands. The County intends to pave the roads in the subdivision and construct a system of swales. Although the paving will increase the impervious surface by an insignificant amount, the runoff will be delivered to the wetlands faster. Accordingly, peaks in water level will occur more suddenly with increased water arriving more quickly. Stormwatr is discharged into wetlands to take advantage of the pollutant-filtering functions of wetlands vegetation. To realize this function, the water must be held in the wetlands for a certain amount of time. The County intends to accomplish this by the installation of a control structure, known as a weir, which will regulate the amount of water leaving the wetlands. The County proposes to construct a weir on the stream between the wetlands and Myrtle Slough approximately 100 feet from the mouth of the wetlands. The top of the weir for this system will be set at 14.8 NGVD, the high pool established by Ross for the County. The weir will also have an orifice set at 14.1 NGVD, the low pool established by Ross and the County, which will allow a constant flow of water out of the wetlands at that elevation. The control structure will cause water to remain in the wetlands for a longer period of time, which will raise the water level in the wetlands by some amount. In order to accurately predict this amount, it is necessary to determine the storage capacity of the wetlands. The County calculated that a storage capacity of 177,761 cubic feet would be required for the wetlands to contain the first one-half inch of rainfall from the 97-acre subdivision. No calculations have been made as to the storage capacity required for the wetlands to contain the first one inch of rainfall from the 97-acre subdivision as well as the 250-acre area that drains into the subdivision which then drains toward the wetlands. The County has failed to establish the hydroperiod of the wetlands. Having failed to establish the hydroperiod of the wetlands, the impact of its project on the wetlands cannot be determined. As an alternative to this project the County considered rerouting the stormwater away from the wetlands. Diverting necessary water from the wetlands would result in the desiccation of the wetlands. However, an increased water flow if not properly discharged would likely result in an over impoundment of the wetlands. Either approach would have an adverse impact on a productive wetland system, such as the wetlands involved here, and a change in the vegetation would adversely impact the wetland's ability to treat the discharge. The treatment of stormwater in wetlands is a relatively new technique. Although some projects have been approved in other parts of the State, projects such as that proposed by the County have not been used yet in southwest Florida.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is, RECOMMENDED that a Final Order be entered denying Charlotte County's application for a wetlands stormwater discharge facility permit. DONE and RECOMMENDED this 8th day of October, 1987, at Tallahassee, Florida. LINDA M. RIGOT, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 8th day of October, 1987. APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-0243 Although Charlotte County filed a document called Proposed Findings of Fact and Conclusions on the Evidence, rather than setting forth any findings of fact the County simply makes what it calls a Comparison of Evidence on Issue 1 and a Comparison of Evidence on Issue 2, listing under each heading excerpts from the testimony of each of the witnesses in this proceeding. Accordingly, no rulings are made herein on Charlotte County's proposed findings of fact since it is determined that there are none. Desrosiers Brothers' proposed findings of fact numbered 1-9, 15, 17, 24, 26, 27, and 38 have been adopted either verbatim or in substance in this Recommended Order. Desrosiers Brothers' proposed findings of fact numbered 10-12, 19-21, 23, 25, 29-37, 40, and 41 have been rejected as not constituting findings of fact but rather as constituting argument of counsel or recitations of the testimony. Desrosiers Brothers' proposed findings of fact numbered 13, 14, 16, 18, 22, 28, and 39 have been rejected as being unnecessary or subordinate to the issues under consideration herein. The Department's proposed findings of fact numbered 1, 2, 14 in part, 15, 16 in part, 17 in part, 18-22, 27, and 28 in part have been adopted either verbatim or in substance in this Recommended Order. The Department's proposed findings of fact numbered 5 and 6 have been rejected as not constituting findings of fact but rather as constituting argument of counsel or recitations of the testimony. The Department's proposed findings of fact numbered 16 in part, and 17 in part have been rejected as being unnecessary or subordinate to the issues under consideration herein. The Department's proposed findings of fact numbered 3, 4, and 7-13 have been rejected as being contrary to the weight of the evidence in this cause. The Department's proposed findings of fact numbered 14 in part, 23-26, and 28 in part have been rejected as not being supported by the evidence in this cause. COPIES FURNISHED: Dale Twachtmann, Secretary Department of Environmental Regulation 2600 Blairstone Road Tallahassee, Florida 32399-2400 Philip J. Jones, Esquire 201 West Marion Avenue Suite 301 Punta Gorda, Florida 33950 Matthew G. Minter, Esquire 18500 Murdock Circle Port Charlotte, Florida 33948-1094 Richard Grosso, Esquire Department of Environmental Regulation 2600 Blairstone Road Tallahassee, Florida 32399-2400 =================================================================
The Issue The issue is whether Bayou Arbors, Inc. (Arbors), is entitled to a dredge and fill permit to construct docks in DeBary Bayou, Volusia County, Florida.
Findings Of Fact On January 8, 1986, DER received an application from Arboretum, a predecessor in interest of Arbors, to construct 12,758 square feet of docks in DeBary Bayou to provide ninety eight (98) boat slips, and to dredge 2,509 cubic yards of shoreline material from DeBary Bayou in areas within DER's jurisdiction under the proposed boat docks, and to place approximately 800 linear feet of concrete riprap along the shoreline after it was dredged. Following the initial application review process, which included on- site evaluations by several DER biologists, on April 14, 1986, DER prepared a Biological and Water Quality Assessment in which DER's staff recommended that the project be modified to delete the dredging, allowing the littoral zone to remain intact. On April 24, 1986, DER forwarded its Biological and Water Quality Assessment to Mr. Charles Gray, the property owner. In response to DER's recommendations, the Applicant submitted, and on April 30, 1986, DER received, a revised Application which deleted the originally-proposed shoreline dredging of 2,509 cubic yards of material as well as the placing of 800 linear feet of concrete riprap. This Application was submitted by Mr. Duy Dao, a Professional Engineer registered in the State of Florida. This Application proposed constructing approximately 17,000 square feet of docking facilities, providing ninety-eight boat slips, along approximately 2,580 linear feet of shoreline adjacent to twenty-four acres of uplands owned by the Applicant. The original and the revised drawings omitted a vertical scale from the cross-section drawings of the project. This omission gave the impression that the shoreline bank of DeBary Bayou was steeper than it actually is and that the water depths in DeBary Bayou adjacent to the north shoreline are deeper than they actually are. However, DER's biologists were on-site four times between February 25, 1986, and May 19, 1986. They observed the existing slope of the DeBary Bayou shoreline and the existing depths in DeBary Bayou, and the on-site observations negated the effect of the omission in the drawings. The omission in the drawings did not affect DER's evaluation of the project. On May 23, 1986, DER issued its Intent to Issue and Draft Permit No. 64-114399-4 to Arboretum. The Intent to Issue and the Draft Permit include the following Specific Conditions: Further construction on the Applicant's property along the DeBary Bayou shall be limited to uplands; Issuance of this permit does not infer the issuance of a permit for dredging in the Bayou at a future date, should an application for dredging be submitted; A deed restriction shall be placed on the condominium limiting boats moored at the facility to seventeen feet or less. A copy of the deed restriction shall be submitted to the Department within sixty days of issuance of this permit; There shall be no "wet" (on-board) repair of boats or motors at this facility; All boats moored at the dock shall be for the use of residents of the condominium only. Public use of the dock or rental or sale of mooring slips to non-residents of the condominium is prohibited; Manatee warning signs shall be placed at 100 foot intervals along the length of the dock(s); Turbidity shall be controlled during construction (by the use of siltation barriers) to prevent violations of Rule 17-3.061(2)(r), Florida Administrative Code. On June 29, 1987, Volusia County, DER and Arboretum entered into a "Joint Stipulation for Settlement" wherein Arboretum agreed not to construct more than twenty-six docks accommodating more than fifty-two boat slips along Arboretum's DeBary Bayou frontage of 2,580 feet. Furthermore, Arboretum agreed that it would modify the configuration and the design of the boat slips and the location of the boat docks; that it would post Slow Speed, No Wake zone signs and manatee education signs along DeBary Bayou from the 1-4 bridge west to a point 100 feet west of the western boundary of Arboretum's boat docks; and that as mitigation for the removal of vegetation from the littoral zone where the boat slips would be constructed, Arboretum would plant wetland hardwood trees. In addition to the Joint Stipulation for Settlement, on June 14, 1987, the property owners, Charles Gray and Sandra Gray, as part of their agreement with Volusia County, executed a "Declaration of Covenants, Conditions, and Restrictions" to which the Joint Stipulation for Settlement was attached as an exhibit. Said Declaration of Covenants, Conditions, and Restrictions, reiterated the Joint Stipulation's limitation of construction of boat docks in DeBary Bayou and further provided that said boat docks would not be constructed at the Arboretum project site in DeBary Bayou unless and until certain maintenance dredging set forth in Article II of the Declaration of Covenants, Conditions, and Restrictions occurred. Furthermore, Article III of said Declaration of Covenants, Conditions and Restrictions set forth certain prohibitions regarding constructing boat ramps on the Arboretum property and docking or storing boats along the DeBary Bayou shoreline except at the site of the proposed docks. In 1969, an artificial channel was excavated in DeBary Bayou adjacent to the north shoreline of DeBary Bayou by a dragline operating along the shoreline. At present, said channel has been partially filled by organic sediments originating in DeBary Bayou. There exists in Section 403.813(2)(f), Florida Statutes, an exemption from the DER's permitting requirements for the performance of maintenance dredging of existing man-made channels where the maintenance dredging complies with the statutory provisions and with the regulatory provisions found in Florida Administrative Code Rule 17-4.040(9)(d). The dragline excavation work performed in DeBary Bayou in 1969 created a structure which conforms to the definition of "channel" provided in Section 403.803(3), Florida Statutes. The maintenance dredging required by the Declaration of Covenants, Conditions, and Restrictions is to be performed by suction vacuuming of the silt sediment, from the 1969 channel and that dredged material is to be placed on Arbors' upland property at the project site. This maintenance dredging differs from the dredging originally proposed by the applicant in its application submitted in January 1986. The dredging originally proposed, which DER recommended against, was to be performed by back hoes and drag-lines which would have cut into the north shoreline of DeBary Bayou and would have affected the littoral zone along the project shoreline. The average water level in Lake Monroe and DeBary Bayou is approximately 1.8 feet above mean sea level. On April 18, 1987, transact studies in DeBary Bayou showed water levels at 3.2 feet above mean sea level and that water depths in DeBary Bayou to a hard sand/fragmented shell bottom ranged from approximately one foot along the south shoreline to approximately nine feet in deep areas in the former channel. The average depth of the channel is five feet below mean sea level. The water depth in DeBary Bayou ranges from approximately one to three feet. At times of average water levels, one to three feet of silt or unconsolidated sediment overburden covers the natural hard sand/shell bottom of DeBary Bayou. This silt and sediment overburden is composed of organic material and is easily disturbed. When it is disturbed, it raises levels of turbidity, although there was no evidence presented that the turbidity would violate state water quality standards. This silt and sediment overburden has been deposited at a faster rate than it would normally be deposited under natural conditions because of the Army Corps of Engineers' herbicidal spraying of floating plants in DeBary Bayou. As this silt and sediment overburden decomposes, it takes oxygen from the water. The presence of a strong odor of hydrogen sulfide indicates that the oxygen demand created by the sediment is greater than the available supply of oxygen at the sediment-water interface. This unconsolidated silt and sediment overburden does not appear to harbor either submerged vegetation or significant macroinvertebrate populations. The Shannon/Weaver diversity index of benthic macroinvertebrates at four locations in DeBary Bayou indicated lowest diversity at the project site and highest diversity at the 1-4 overpass, where a small patch of eel grass is growing. Removal of this silt and sediment overburden from the 1969 channel will enhance the system, enabling a hard bottom to be established, with a probability of subsequent establishment of a diversity of submerged macrophytes. Removal of the silt and sediment overburden from the 1969 channel will restore the natural hard sand/fragmented shell bottom in that area of DeBary Bayou. It is unlikely that boat traffic in the restored channel will cause turbidity which will violate state water quality standards. Removal of this silt and sediment overburden will improve water quality in DeBary Bayou by removing a source of oxygen demand. Removal of this silt and sediment overburden will create a better fish habitat by exposing some of the natural bottom of DeBary Bayou. Fish are unable to spawn in the unstable silt and sediment. Removal of this silt and sediment overburden will increase the depth of water in DeBary Bayou channel to between four to six feet. The maintenance dredging, required by the Declaration of Covenants, Conditions, and Restrictions, is limited by statute to the channel which was excavated in 1969. Therefore, a continuous channel will not be maintained from the project site eastward to Lake Monroe. At present, a sandbar exists at the confluence of DeBary Bayou and Lake Monroe. During low water, this sandbar restricts navigation into and out of DeBary Bayou to small craft. At present, boats can and do travel on DeBary Bayou for fishing and for other water-related recreational activities. However, due to water level fluctuations, boating on DeBary Bayou is easier during higher water periods. During lower water periods, navigation into and out of DeBary Bayou is still possible, but boaters must proceed using common sense and caution. The United States Fish and Wildlife Service (FWS) has no evidence that manatees presently use or have ever used DeBary Bayou. Adult manatees have an average girth of approximately three (3) feet. Without a continuous channel open to Lake Monroe, manatees are not likely to go up DeBary Bayou. Since the water at the sandbar at the mouth of DeBary Bayou at its confluence with Lake Monroe is generally less than three feet deep throughout the year, it is likely that these shallow waters will deter manatees from entering DeBary Bayou. DeBary Bayou is a spring-fed run from a spring a substantial distance upstream. The sheetflow of the spring water follows a circuitous route through marsh areas prior to reaching the area of this project. The proposed site is just west of the 1-4 overpass and Lake Monroe. The FWS's data show that the St. Johns River in Volusia County has an extremely low documented manatee mortality rate resulting from boat/barge collisions. Generally, boats greater than 23 feet long are more likely to kill manatees outright than smaller boats are. In marinas, manatees are very rarely killed by collisions with boats. Manatees and marinas are highly compatible. On August 1, 1986, the FWS issued a "no-jeopardy" opinion regarding Arbors' project. In this letter, the FWS stated that Arbors' project was not likely to jeopardize the continued existence of the manatee or to adversely modify the manatee's critical habitat. In the year since the FWS issued its no-jeopardy opinion, no manatee mortalities resulting from boat-barge collisions have been documented in the St. Johns River in Volusia County. The FWS recommended one boat slip per one hundred linear feet of waterfront, or twenty-six boat slips for the project. A single-family residence which would be entitled to one pier could berth an unlimited number of boats at that single pier. The FWS would have no control over the number of boats using that single pier. Arbors' project calls for twenty-six piers. The FWS's evaluation of Arbors' project is exactly the same as that agency's evaluation of any other marina project anywhere in areas designated as critical manatee habitat. All of the St. Johns River in Volusia County, Florida, is designated as critical manatee habitat. On July 16, 1986, after issuance of its Intent to Issue, DER received comments from the Florida Department of Natural Resources regarding Arbors' project and its potential impact on manatees. DER considered the possibility of boat/manatee collisions and had specifically considered this issue. DER did not agree with the broad and general concerns expressed by the Department of Natural Resources, and DER's rules have not adopted a specific requirement regarding a ratio between the length of a project's shoreline and the number of permittable boat slips. On July 16, 1986, the Department received a letter from the FWS concerning fisheries issues and navigation. This FWS letter was received after issuance of DER's Intent to Issue. Although DER considered these comments, DER disagreed with the FWS's recommendations regarding these issues. Water quality sampling and analysis showed that at present, there are no violations of DER's Class III water quality standard in DeBary Bayou, except for the dissolved oxygen criterion on some occasions during early-morning hours, and that result is to be expected. It is further not expected that there will be any water quality violations after the project is completed. If the work areas affected by driving piles to build floating docks and the work area around the maintenance dredging of the DeBary Bayou channel are contained within turbidity barriers, as required by general and specific conditions of the DER's proposed Draft Permit, it is anticipated that no violations of the Class III turbidity criterion will occur during construction of Arbors' project. By maintenance dredging the former DeBary Bayou channel, Arbors will remove the silt and sediment overburden from the channel and restore a deep (four to five feet below mean sea level) channel having a hard sand/fragmented shell bottom. Arbors' dock will be restricted to small boats whose operation in the deep channel will be unlikely to re-suspend silt and sediment and cause violations of the Class III turbidity criterion. Additionally, it is unlikely that any turbidity which is created by turbulence from boat propellers in a designated "No Wake, Slow Speed" zone will violate the Class III turbidity criterion. Although the entire project will be enhanced by the proposed maintenance dredging, such dredging is not a part of the permit application. From the evidence it appears that the project is permittable without the dredging. Although Arbors' project will result in the addition of some oils and greases associated with outboard motors to DeBary Bayou, the addition is not expected to result in violations of the Class III water quality standards. Additionally, release of heavy metals from anti-fouling paints should be minimal, and that release can be further controlled by specifically prohibiting over-water repair of boats and motors. Some addition of phosphorous to the waters of DeBary Bayou is anticipated due to use of phosphate-based detergents for washing boats. Additionally, minimal amounts of phosphorous may be added to DeBary Bayou from re-suspension of organic silts by turbulence from boat propellers. However, DER has no standards for phosphorous in fresh waters, and the minimal additional amounts of phosphorous expected from these sources are not anticipated to violate DER's general nutrient rule. Operation of boats at Arbors' proposed boat docks will cause no water quality problems which would not be caused by operation of boats at any other marina anywhere in Lake Monroe or anywhere else in the State of Florida. While WVC's expert, Robert Bullard, testified that Arbors' proposed boat docks could potentially cause violation of DER's Class III water quality criteria for turbidity, oils and greases, heavy metals and phosphorous, he was unable to testify that Arbors' project actually would cause such violation. His testimony in this regard was speculative and is not given great weight. No other WVC expert testified that Arbors' project was likely to cause violation of any criteria of DER's Class III water quality standards. It is anticipated that the shade cast by the boat docks will not have an adverse affect on water quality. Additionally, DeBary Bayou is a clear, spring-fed water body open to direct sunlight. The boat docks will cast shade which will enhance fish habitat. The proposed docks will not threaten any production of fish or invertebrate organisms. The mitigation plan proposed by the applicant and accepted by Volusia County and DER requires planting wetland hardwood tree species. These trees will certainly assist in stabilizing the bank of DeBary Bayou and minimizing erosion of the shoreline. Additionally, these trees will absorb nutrients from the water and will perpetuate the wooded wetland habitat along the DeBary Bayou shoreline. Arbors' own expert, Carla Palmer, also suggested the sprigging of eel grass in the dredged portion of DeBary Bayou. Such planting should be included as part of the mitigation plan. DER considered the cumulative impact of this docking facility. Four marinas are presently permitted on Lake Monroe and in the St. Johns River between Lake Monroe and Deland. DER considered these facilities' existence when it reviewed Arbors' application, and was satisfied that Arbors' boat dock facility would not have an adverse cumulative impact. There are no specific guidelines for a cumulative impact evaluation; accordingly, DER must apply its cumulative impact evaluation on a case-by-case basis. In the present case, there is no showing of adverse cumulative impacts from this project. Arbors' project will not adversely affect significant historical or archaeological resources recognized pursuant to applicable Florida or Federal Law. WVC was organized in March 1985, to oppose development in West Volusia County. WVC did not meet regularly and did not keep regular minutes of its meetings in the interim between organizing and filing the Petition in June 1986, for an administrative hearing on the Intent to Issue a permit for Arbors' project. When the Petition was filed, WVC did not have a membership roll, and was unsure how many members it had. Further, it is unclear as to how many members may have attended an "emergency" meeting to authorize filing said Petition. Approximately five months after said Petition was filed, WVC was incorporated and approximately nine months after the Petition was filed, WVC compiled a list of the people who were WVC members in June 1986. The emergency meeting WVC held in June 1986, to authorize filing said Petition was the first and the only such "emergency" meeting WVC ever held. The minutes of the emergency meeting have been lost. In June 1986, WVC may have had written rules authorizing emergency meetings and authorizing it to file suit, but its Chairman is unsure of this. Six of WVC's approximately 20 members may have lived within one mile of Arbors' project site in June 1986. Two of these members lived on waterfront property on Lake Monroe east of the 1-4 bridge. Some of these WVC members have never taken a boat west of 1-4 onto DeBary Bayou. WVC, as an organization, never sponsored outings or boat trips onto DeBary Bayou before filing the Petition. WVC's officers at the time of filing the Petition did not use DeBary Bayou for boating, fishing or swimming. No WVC members have ever seen manatees in DeBary Bayou. As with any other similar project on Lake Monroe, the boats which might be berthed at Arbors' project might add additional trash to the waters of Lake Monroe, might disturb the wildlife which WVC members might see on their property, and might cause wakes which might erode waterfront property. One of WVC's founders, who was an officer in June 1986, when WVC filed the Petition, stated that she would not be adversely affected in kind or degree any more than any other taxpayer in Florida. Friends timely intervened and its intervention was authorized by its membership at a regularly noticed meeting.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Environmental Regulation enter a Final Order granting Permit Number 64-114399-4, subject to those specific conditions set forth in paragraph 6 hereof and as modified by the stipulation entered into between Arboretum, Volusia County, and Department of Environmental Regulation, as more particularly described in paragraphs 7 and 8 hereof, and to include within the mitigation plan the sprigging of eel grass in areas of the dredged portion of DeBary Bayou. DONE AND ENTERED this 16th day of September 1987, in Tallahassee, Florida. DIANE K. KIESLING Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 FILED with the Clerk of the Division of Administrative Hearings this 16th day of September 1987. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 86-2463 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the proposed findings of fact submitted by the parties in this case. Specific Rulings on Proposed Findings of Fact Submitted by Petitioner and Intervenor, West Volusia Conservancy, Inc., and Friends of the St. Johns, Inc. 1. Each of the following proposed findings of fact are adopted in substance as modified in the Recommended Order. The number in parentheses is the Finding of Fact which so adopts the proposed finding of fact: 1(3); 2(5); 8(24); 13(8); 46(57); and 47(57). 2. Proposed findings of fact 3, 4, 7, 10, 11, 12, 28, 29, 32, 34, 35, 36, 40, 42, 43, 44, and 45 are rejected as being subordinate to the facts actually found in this Recommended Order. 3. Proposed findings of fact 5, 14, 15, 16, 17, 20, 23, 24, 25, 26, 27, 30, 31, 33, 39, and 41 are rejected as being unsupported by the competent, substantial evidence. 4. Proposed findings of fact 6, 9, 18, 19, 21, 22, 37, and 38 are rejected as irrelevant. Specific Rulings on Proposed Findings of Fact Submitted by Respondent, Bayou Arbors, Inc. 1. Each of proposed findings of fact 1-56 are adopted in substance as modified in the Recommended Order, in Findings of Fact 1-56. Specific Rulings on Proposed Findings of Fact Submitted by Respondent, Department of Environmental Regulation Each of the following proposed findings of fact are adopted in substance as modified in the Recommended Order. The number in parentheses is the Finding of Fact which so adopts the proposed finding of fact: 1-11(1-11); 13-28(12-27); 29-38(29-38); 39(38); and 40-48(39-47). Proposed finding of fact 12 is rejected as unnecessary. COPIES FURNISHED: Dale Twachtmann, Secretary Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32399-2400 Richard S. Jackson, Esquire 1145 West Rich Ave. Deland, Florida 32720 Dennis Bayer, Esquire P. O. Box 1505 Flagler Beach, Florida 32036 Philip H. Trees, Esquire P. O. Box 3068 Orlando, Florida 32802 Vivian F. Garfein, Esquire Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32301-8241
The Issue Whether the Department of Environmental Regulation, upon all of the information presented before it, properly issued its Notice of Intent to Deny the request for a permit channelizing the subject streams within the Mills Creek Watershed. FINDINGS OF FACT 1/ It is the Petitioner's contention that the Petitionerhas failed to demonstrate, as a matter of law, its entitlement toa permit for channelization of the Mills Creek Watershed initially because the project will entail an alleged loss of watershed and wildlife habitat "particularly since there are no restrictions on private drainage connection". As stated supra, in the Background section., one of the agencies that has commented on this project, the St. Johns River Water Management District, at its August 18, 1976, meeting endorsed the Mills Creek project with the recommendation that no direct connections of laterals, drainage ditches and/or secondary connections be allowed within the boundaries of the flood plain as they presently exist. There is at present a local ordinance pending to comply with this proviso which has been endorsed by the chairman of the Board of County Commissioners for Nassau County. And, aside from this fact, DER is authorized to incorporate finite limits into drainage permits to prevent excessive drainage into any project in which a permit is required. And, as stated, the county has acquiesced with the suggestion by Gerald Herting of DER that such constraints he placed in the permit provided favorable action is taken by DER. Testimony introduced during the hearing in the case reflects that provisional permits are not uncommon. (Testimony of Landon Ross and Douglas Bailey of DER and the Office of Environmental Protection, of FG&FWFC,respectively.) Stephen Gatewood, an environmental specialist, analyzedthe Mills Creek project plans and also visited the site. He testified that the subject project was well planned ecologically in terms of soundness and, based on the manner in which the plans are drawn and the construction will be implemented, the least amount of environmental damage will result. He compared the Taylor Creek channelization project with the subject project and while noting that there were differences, he testified that he was unable to give his blessings to the subject project, inasmuch as the Taylor Creek project had been "a bad experience". The similarity between the two projects is the fact that there are effluents flowing from dairies on both projects although Gatewood was unable to show what impact effluents flowing from the dairy situated in the Mills Creek area had on this project. Doctor Shireman, a professor of fishery sciences and a biologist with the University of Florida, sampled the fish population in both the channelized and non-channelized portions of the project streams for the last year. Doctor Shireman stated that the fish population was representative of the fish populations in lakes and streams throughout Florida and also indicated that if the county ordinance was passed and lateral inlets into the channel were controlled, the channelization project would have minimal impact on tie lower parts of the stream. Moreover,experts from the Department and the Petitioner agreed that thepotential water quality damage would be minimal at worst. Section 17-4.28, F.A.C., adopted pursuant to Chapter 403, F.S., places the burden upon the Petitioner to affirmatively show and demonstrate to DER that its channelization project will not result in violations of the water quality criteria, standards, requirements and provisions of Chapter 17-3, F.A.C., over the short and long term periods. Also, Section 17-4.29 F.A.C., adopted pursuant to Chapter 253, F.S., requires the applicant to affirmatively demonstrate to the Department that, based upon a biological and hydrographic survey, the project will not interfere with the conservation of fish, marine and wildlife, or natural resources. Finally, the project must be designed so as not to violate Section 403.161, F.S., which prevents the causing of pollution, harm or injury to human health or welfare, animal, plant or aquatic life or property. In this regard, the evidence introduced at the hearing revealed that essentially all of the water quality studies and the majority of the studies associated with the aquatic system were carried out by Doctor Shireman through a cooperative agreement between the University of Florida and SCS. Doctor Shireman, as stated, analyzed the fish population in the channelized and non-channelized areas of this project and found the fish and aquatic population to be representative of similar lakes and streams in this State and, further, that there was no measurable difference in the fish population in the channelized area, an area which had been completed approximately seven years ago, and the non-channelized areas. This study encompassed a period ofapproximately one year. It was also noted that for the most part, measured data indicated that the water quality in the channel system met the criteria for Class III waters. Also, as stated earlier, the channel supported good fish populations and samplings of the stations in the channelized portions conducted by Doctor Shireman provided no basis for a finding that the constructed channels were in any manner degrading water quality despite the fact that the channels had been constructed for approximately seven years. The studies also revealed that through an examination of the benthic organisms and fish life found in all channels and receiving waters, an acceptable quality free from detrimental levels of toxic materials was prevalent. The Department also expressed a concern that channelization would drastically reduce the number and size of fish due to increased sedimentation and the loss of stream bed niches and pits. The Department offered its position that dredging homogenizes the bed structure, reduces roughness and diversity and destroys diversity of the current pattern. Sampling of the subject project streams indicate that in the watershed 39 different species of fish were discovered, 30 of which were found in the channel sections. The data also revealed that there was little specie difference in the benthic organisms between channel and unchanneled portions of the watershed. There was no evidence introduced of any increased sedimentation taking place in the previously constructed channels. The Department also expressed concern over clear-cutting during construction, with resulting increases in the water temperatures, wetland reduction, streamside foliage destruction and turbidity. Respecting this concern, Jesse Livingston, a registered civil engineer involved in the design and implementation of the project, testified that the Mills Creek area was designed and redesigned to address and satisfy the concerns of the various commenting agencies and that the project was not designed to drain the swamp as the commenters feared. To the contrary, he testified that the hydrologic grade line of the channels was set two feet above the normal ground in the area and in fact the planners envisioned a design to flood the swamps to increase the wetlands. He testified that a detailed geological investigation was made of the channel by taking soil samples during field investigations to determine permeabilities and soil types to determine a safe velocity for the channel's design. Mr. Livingston testified without contradiction that the project was designed so "that the side slopes would remain essentially as planned; taking precautions to ensure that the channel bottoms do not degrade and by stabilizing the channel. In so doing he commented that the bed load would continue moving through the channel system which ultimately would fill the downstream channels". He testified that limited turbidity would occur during the process of construction but by use of proper construction techniques, the channel system would be stabilized and no significant amount of turbidity would result. He testified that pipe drops were designed and set along the channel to control the manner in which water entered the swamps and ultimately into the channel. Respecting the allegations and concerns expressed of clear-cutting and increasing water temperatures during construction, Livingston testified that the channels were designed to be constructed from one side and thereby eliminating the amount of clearing which was a sure way to control clearing and also minimize any temperature increases along the channel. This method, according to Livingston, also provides essentially the same cover to foliage due to the fact that the channelization would all occur on one side. Testimony introduced also revealed that the streamside foliage had begun to fully recover within the channelized area and that the streamside foliage which would be temporarily lost during the construction phases would fully recover to vegetation within one growing season. Finally, he testified that provisions would be made to curtail turbidity within allowable limits. His testimony reveals that the bottomland hardwoods would not be disturbed due to the graded side inlet pipes which was done at the request of FG&FWFC. He concluded that the ecological change in the swamp diversity would be temporary, lasting only temporarily beyond the construction phases.
Conclusions As the Petitioner (applicant) points out, the Department's reviewers seem to have taken a textbook approach in reviewing the available data in reaching its decision of its intent to deny the permit for the Mills Creek channelization project. While there were some shortcomings in data which largely stem from the difficulty in ascertaining the impact of the effluents of the dairy in the area, the weight of evidence tends to support a conclusion, by competent and substantial evidence, that the project would not degrade the air and waters of this State. The Petitioner, through various meetings with all of the State and Federal agencies commenting on the design of this project, addressed all issues and designed the project so as to meet and satisfy the concerns of interested parties. The available data also revealed that in those areas wherein potential problems may arise in the future,the agencies are armed with sufficient authority to remedy and correct such problems. The engineers for this project designed it based on the guidance and consultations of all agencies who were interested in the ecological welfare of this area and took great pains to see that air and water quality would not be degraded. The local county officials have also given their approval to limit lateral connections by upland owners and the overall project design appears to be in keeping with the letter and spirit of Chapters 403 and 253 and Sections 17-3 and 4, Florida Administrative Code. For all of these reasons, I am forced to conclude that the Petitioner (applicant) has met its burden of establishing that the requested permit for the channelization project herein will not result in a degradation of air and water quality and, therefore, the permit should be issued. In keeping with the recommendations by the St. Johns River Water Management Board, I shall recommend that the permit be issued with the proviso that no lateral connections be made to the channelization project by upland owners.
Recommendation Based on the foregoing findings and conclusions of law, it is hereby recommended that the Department of Environmental Regulation cause to be issued a permit authorizing the applicant herein to channelize the remaining section of the Mills Creek project as requested with the proviso that the channelization operations be stayed until the Board of County Commissioners of Nassau County pass an ordinance that provides that no direct connections of laterals, drainage ditches and/or secondary connectors be allowed within the boundaries of the flood plains as presently exist. RECOMMENDED this 26th day of June, 1978, in Tallahassee, Florida. JAMES E. BRADWELL, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675
The Issue This case arises out of the denial by the Department of Environmental Regulation of an application by the Petitioner to construct a 24-slip marina on Bayou Chico in Pensacola, Florida. At the formal hearing, Petitioner testified on his on behalf and offered and had admitted into evidence one exhibit. The Respondent called as its only witness, Jeremy Craft, and offered and had admitted into evidence four exhibits. Counsel for the Respondent submitted proposed findings of fact and conclusions of law for consideration by the Hearing Officer. To the extent that those proposed findings and conclusions are inconsistent with this order, they were rejected as not being supported by the evidence or as unnecessary to a resolution of this cause.
Findings Of Fact On March 18, 1982, Petitioner applied for a permit to dredge approximately 78,480 cubic yards from Bayou Chico and an unnamed embayment adjacent to the Bayou. The proposed project site is located in Pensacola, Florida, Bayou Chico in Section 59, Township 2 South, Range 30 West. Specifically, the project site is located on the south side of Bayou Chico just north of the Barrancas Avenue Bridge. On April 15, 1982, the Respondent, Department of Environmental Regulation, sent a completeness summary to the Petitioner requesting additional information before the application or permit could be processed. Over a period of approximately a year and a half, Department of Environmental Regulation conferred with Petitioner concerning the proposed project and a number of different plans were discussed. In July of 1983, Petitioner submitted the July 11, 1983 plan, with modifications, and withdrew all prior plans. It is this plan which is the subject of this hearing. A field appraisal of the proposed site was made by Department of Environmental Regulation on December 25, 1982. On August 31, 1983, Department of Environmental Regulation issued an Intent to Deny the Petitioner's permit application. The Intent to Deny encompassed all plans and revisions submitted by the Petitioner, Department of Environmental Regulation based its denial on Petitioner's failure to give reasonable assurances that water quality standards would not be violated by his project. The Department's denial also asserted that the project would also result in matters adverse to the public interest. The final proposal submitted by the Petitioner sought a permit to dredge a strip 100 feet wide by 450 feet long to a depth of 6 feet. This strip is adjacent to a spit or strip of land which separates Chico Bayou from the emboyment. This plan was subsequently modified to include dredging an additional 100 to 150 feet along the full length of the strip. This additional dredging would take the dredged area out to the deep water of Chico Bayou and was intended to eliminate a channeling effect. The purpose of the dredging is to enable the Petitioner to construct a marina or docking facility along the split. The marina would include 24 slips. The proposed dredge area gradually slopes from the shoreline to five and six foot depths 200 to 250 feet from the spit. The water in the embayment is highly polluted and at one time was used as a holding pond for mahogany logs because the wood-boring worms could not survive in the water. Bayou Chico is also very polluted and fails to meet the water quality standards found in Rule 17-3.121, Florida Administrative Code, for the parameters lead, cadmium, copper, and aluminum among others. The bayou has for many years been used for boat and barge traffic. Jeremy Craft testified on behalf of DER and his opinions as to the impact of the project on water quality and marine life were uncontroverted. In Mr. Craft's opinion, the dredging proposed by the Petitioner would result in further degradation of the water quality in Bayou Chico by eliminating important shallow areas and underwater grasses. The deepening of the dredged area would limit the amount of oxygen available to the water in the bayou thereby harming the aquatic life by freeing many of the heavy metals which are presently bound in the sediments in the bayou. The shallow areas are the most important areas in cleansing the water. With increased oxidation, the biota survive better and the water is better cleansed. Freeing the heavy metals would allow their introduction into the food chain and accumulation in living organisms. The Petitioner has not informed DER of his specific dock specifications, stormwater plans, upland development plans, or dredge disposal plans. The type of dock will determine the type of boating traffic and this will indicate the amount and content of stormwater discharge. Because of the contaminated nature of the spoil, the Petitioner must provide reasonable assurances that the spoil and spoil water will be properly retained. Petitioner testified on his own behalf but did not present any evidence relating to the impact the proposed prod act would have on water quality.
Recommendation Based upon the foregoing findings of fact and conclusions of law it is RECOMMENDED That the Department of Environmental Regulation enter a final order denying the Petitioner's application for a permit as set forth in the Intent to Deny previously issued by the Department. DONE AND ORDERED this 24th day of May 1984, in Tallahassee, Florida. MARVIN E. CHAVIS Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 FILED with the Clerk of the Division of Administrative Hearings this 24th day of May 1984. COPIES FURNISHED: David K. Thulman, Esquire Assistant General Counsel 2600 Blair Stone Road Tallahassee, Florida 32301 (904)488-9675 Joe Pair 1200 Mahogany Mill Road Pensacola, Florida 32907 Victoria Tschinkel, Secretary Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32301
Findings Of Fact Background Petitioner, David E. Musselman, is the owner of Lot 23, Block 22, Cudjoe Gardens Eighth Addition, Cudjoe Key, Monroe County, Florida. The lot measures 127 feet along its front and rear property line, 135 feet along its side property lines and, similar to adjacent lots, its rear property line abuts an artificially created waterway. Currently, most of petitioner's lot enjoys an elevation of six feet; however, from the edge of the waterway landward a distance of approximately 20 feet [to what has been referred to as the "toe of the existing slope" in these proceedings] the surface consists of exposed caprock at an elevation of approximately four inches above mean high water. It is petitioner's desire to construct a single family residence upon such lot and, incident to such construction, to erect a seawall along the edge of the waterway such that the elevation at the waterway will be increased by two feet, and to backfill from the seawall to his home. Such backfilling would require the deposition of approximately 3,540 square feet of fill within the Department's jurisdiction, which was shown to extend from the edge of the waterway to the toe of the existing slope, and would raise the elevation in such area two feet above existing grade. On December 16, 1991, petitioner filed an application with respondent, Department of Environmental Regulation (Department), for an exemption from the Department's wetland permitting requirements. If approved, such exemption would allow petitioner to construct the vertical seawall along the waterway, and backfill from the seawall to his proposed home. By notice of agency action dated February 14, 1992, the Department proposed to deny petitioner's application predicated on its conclusion that his proposal did not meet the exemption criteria established by Rule 17- 312.050(1)(g), Florida Administrative Code. Petitioner filed a timely protest to contest the Department's conclusion. The exemption Pertinent to this case, Rule 17-312.050(1)(g), Florida Administrative Code, exempts from permitting the following activities: (g) Construction of seawalls or riprap, including only that backfilling needed to level the land behind the seawalls or riprap, in artificially created waterways where such construction will not violate existing water quality standards, impede navigation or adversely affect flood control. An artificially created waterway shall be defined as a body of water that has been totally dredged or excavated and which does not overlap natural surface waters of the state. For the purpose of this exemption, artificially created waterways shall also include existing residential canal systems . . . . At hearing, the parties stipulated that the waterway which abuts the rear property line of petitioner's lot is an artificially created waterway, as well as an existing residential canal, and that the proposed project will not violate existing water quality standards, impede navigation, or adversely affect flood control. Notwithstanding, the Department contends that petitioner's application should be denied because no need has been demonstrated that would support the construction of the seawall along the edge of the waterway, as opposed to locating it further inland, and therefore the amount of backfill, with its attendant loss of wetlands, is excessive. For the reasons set forth in the conclusions of law, the Department's position is untenable as a matter of law. 1/
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Department enter a final order approving petitioner's application for an exemption to construct a seawall, and to backfill from such seawall to his proposed home, as applied for. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 4th day of June 1992. WILLIAM J. KENDRICK Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 4th day of June 1992.
Findings Of Fact On November 1, 1982, Respondent Janson filed a Joint Application for a dredge and fill permit from Respondent, Department of Environmental Regulation, and from the Department of the Army Corps of Engineers. The project described in that application involved the construction of an approximately 1,000-square- foot, pile-supported residence, landward of the mean high water line but within the landward extent of Robinson Creek in St. Johns County, Florida. The proposed project also involved the placement of approximately 35 cubic yards of fill and a 30-foot culvert within a small (approximately 4-foot), tidally- influenced roadside ditch for driveway access and parking. The original application sought permission to place part of a concrete driveway and tool shed within the landward extent of Robinson Creek. The project is to be constructed on Lot 47, J.A. Lew Subdivision. Respondent Janson owns Lot 47, as well as Lots 45 and 46, which lots are north of and adjoining Lot 47 and also adjoining Robinson Creek. The next adjoining property owner to the north is the City of St. Augustine, Florida, which presumably owns the street. The adjoining property owner to the south of Lot 47 is Virginia P. Melichar. Neither Melichar nor the City objected to the Department's approval of the dredge and fill permit application. In support of his application, Janson retained the services of a registered surveyor and civil engineer, who performed a survey on Lot 47 to determine the location of the mean high water line with reference to the proposed project. That expert determined the location of the mean high water line to be at elevation 2.4 feet. Accordingly, all work contemplated by the dredge and fill permit is upland from the mean high water line. T.J. Deuerling, an environmental specialist for Respondent, Department of Environmental Regulation, visited the project site on December 13, 1982 and on December 30, 1982 in order to prepare the Department's Biological and Water Quality Assessment. As a result of those site visits, Deuerling recommended to Respondent Janson that he modify his permit application by moving the concrete slab and tool shed from the marsh area onto the uplands. Janson did so revise his application. In spite of the name of the permit being sought by Respondent Janson, the project involves no dredging. However, the culvert and its attendant fill would be placed in the man-made roadside ditch. That ditch constitutes a very weak transitional marsh. Although the culvert will eliminate some vegetation within that ditch, the effect of the elimination will be insignificant on water quality. The pilings for the pile-supported residence will also eliminate a small area of marsh. The anticipated shading caused by the pile-supported residence may impact somewhat on the vegetation in a small area below the residence; however, due to the fact that the floor of the house will be eight feet above the ground, light will still be able to penetrate. Therefore, the vegetation below the pile-supported residence will continue to act as a filter for pollutants. Janson has mitigated the small loss in wetlands by modifying his project so as to remove the concrete slab and tool shed from the marsh area to the uplands. Due to the project's small size, no storm water impact can be expected. Additionally, no evidence was introduced to show a violation of any water quality standard as a result of the proposed project. On March 16, 1983, Respondent, Department of Environmental Regulation, executed its Intent to Issue the dredge and fill permit in accordance with the revised application and subject to the conditions that: (1) turbidity curtains be employed in the ditch during the placement of fill over the culvert to contain any turbidity generated, and (2) construction on the uplands be confined to periods of normal water level conditions. On July 5, 1983, the Department of the Army Corps of Engineers issued its Permit and Notice of Authorization. The essence of the testimony presented by the Petitioners, including that of the employees of the St. Johns River Water Management District, who testified in opposition to the proposed project, is that even though Janson's proposed project would not impact water quality in a way that was either significant or measurable (although no one even suggested any specific water quality standard that might be violated), approval of Janson's permit might set a precedent for other projects which might then have a cumulative impact in some unspecified way at some unspecified location. No evidence was offered to show that Respondent, Department of Environmental Regulation's review of permit applications is other than site specific. Further, no evidence was introduced to show any proposed project anywhere having any impact with which Janson's project could be cumulative. Petitioners Sandquist and Shuler live in the neighborhood of the proposed project, perhaps as close as two blocks away.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered dismissing with prejudice the petition filed herein as to each individual Petitioner and issuing a dredge and fill permit to Respondent Janson in accordance with his revised application. DONE and RECOMMENDED this 13th day of January, 1984, in Tallahassee, Leon County, Florida. LINDA M. RIGOT, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 13th day of January, 1984. COPIES FURNISHED: Stormy Sandquist 3 Aviles Street St. Augustine, FL 32084 Marion C. Snider Volla F. Snider 79 Fullerwood Drive St. Augustine, FL 32084 Carmen Ashton 51 East Park Avenue St. Augustine, FL 32084 Reuben D. Sitton Gail P.Sitton 35 Seminole Drive St. Augustine, FL 32084 Sandra N. Shuler 22 East Park Avenue St. Augustine, FL 32084 Patty Severt Greg Severt 1 Fern Street St. Augustine, FL 32084 Nancy Moore Paul Moore, Jr. 6 Fern Street St. Augustine, FL 32084 John D. Bailey, Jr., Esq. P.O. Box 170 St. Augustine, FL 32085-0170 Charles G. Stephens, Esq. Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, FL 32301 Victoria Tschinkel, Secretary Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, FL 32301
