Findings Of Fact Respondent TCI has more than 70 homes completed or under construction in furtherance of plans to build 141 single family residences as part of Tymber Creek Phase I, a development in Volusia County. The development site is partially bounded by the Little Tomoka River, a natural body of water which is navigable in fact. The site of the construction respondent DER proposes to permit is home to wildlife of various kinds, including woodpeckers, great horned owls, herons, mussels, manatees, snakes, turtles and alligators. At the present time, boat traffic on the Little Tomoka River is negligible. The dock TCI proposes to build would have a total area of 120 square feet and would not impede the flow of the river. It would protrude over the water no more than five feet along the bank of the river at a point where the river widens, described by some of the witnesses as a lagoon, and would not constitute a hazard to navigation. With respect to the dock, the foot bridges, the boat ramp and the removal of the agreed upon portion of unauthorized fill, the permit DER proposes to issue would be before the fact. According to DER's appraisal of TCI's original, revised permit application, which was received in evidence as DER's exhibit No. 5, TCI made revised application, on November 29, 1977, for "after-the-fact approval for the placement of approximately 3500 cubic yards of fill After TCI had filled, it constructed parking and recreational facilities. In evaluating TCI's application, Steve Beeman, a DER employee, described the site in January of 1978: Approximately 1.6 acres of filled flood plain is presently covered by a sports complex including tennis courts, swimming pool and recreation building and an asphalt parking lot. An additional 3000 square feet has been filled and paved (asphalt was applied after receipt of DER cease and desist notice) for [access to] a [proposed] boatramp and parking area, and approximately 14,000 square feet of swamps have been filled in the construction of a 1800+ feet "natural trial". DER's exhibit No. 5. By letter dated February 22, 1978, respondent DER notified respondent TCI of its intent to deny TCI's initial application, as revised. Among the reasons DER gave for its intended denial were expected violations of various water quality standards, including a prohibition against oils and greases in concentrations greater than 15 mg. per liter ("or that no visible oil, defined as iridescence, be present to cause taste or odors, or interfere with other beneficial uses.") DER's exhibit No. 4. Rule 17-3.05(2)(r) , Florida Administrative Code. This water quality standard violation was anticipated because of "the [projected] focussing of stormwater runoff into the Little Tomoka River, across paved surfaces, which are high in petroleum based pollutants." DER's exhibit No. 5. In its notice of intent to issue a permit, DER proposes to authorize TCI "to realign (straighten) existing boatramp access road." DER's exhibit No. Mr. Wheeler's letter to Mr. Shirah of April 6, 1978, DER's exhibit No. 2, describes the proposed access road change as part of "discussions and agreements concerning resolution of the initial unauthorized fill and subsequent after-the- fact application." A drawing attached to this letter indicates that the contemplated alteration of the roadway would decrease the amount of paved surface to some unspecified extent. Another part of these "discussions and agreements concerned removal of some 1900 cubic yards of fill. Most of the fill designated for removal had been placed with the idea of creating a dry pathway through the marshy area separating the Little Tomoka River from an asphalt parking area. So placed, the fill dirt acts as a dike, preventing the preexisting communication between the waters of the Little Tomoka River and the waters of the adjacent marsh. At the hearing, Mr. Wheeler testified that, if revised in accordance with DER's exhibit No. 2, TCI's project would pose no threat to water quality, but he conceded that the effects of gasoline boat motors were not considered. An increase in beat traffic would likely result in an increase in oils and greases in the waters of the Little Tomoka River.
Recommendation Upon consideration of the foregoing, it is RECOMMENDED: That respondent DER, deny the permit is proposed to issue to respondent TCI in letters to petitioners dated April 7, 1978. DONE and ENTERED this 23rd day of August, 1978, in Tallahassee, Florida. ROBERT T. BENTON, II Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Segundo J. Fernandez, Esquire Assistant General Counsel Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida Judson I. Woods, Jr., 32301 Esquire Post Office Box 1916 Ormond Beach, Florida 32074 Tymber Creek, Inc. c/o Stan Shirah Route 40 Twin River Drive Ormond Beach, Florida 32074
The Issue The issues are whether David Boston should be issued an environmental resource permit and sovereign submerged lands authorization allowing him to construct 96 linear feet of rip rap revetment; construct a private dock of less than 1,000 square feet; and place 3,500 square feet of fill in non-jurisdictional areas; and whether he qualifies for a general permit to place a fill pad in isolated wetlands adjacent to the St. Johns River, a Class III waterbody.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: In this permitting dispute between neighbors, Petitioner, Vincent R. D'Antoni, Jr., contends generally that Respondent, David Boston (Boston), will cause flooding to Petitioner's property by reason of placing too much fill on an isolated wetland, which lies in the center of Boston's property. The filling is in conjunction with Boston's efforts to construct a single-family residence and private dock on his property, purchased in June 1998, which lies adjacent to the St. Johns River, a Class III waterbody, in Duval County, Florida. In preliminary decisions made on November 5, 1998, and January 21, 1999, Respondent, Department of Environmental Protection (DEP), "acknowledge[d] receipt" of Boston's intent to use a noticed general permit "to fill less than 4,000 square feet of an isolated wetland to facilitate construction of a single family home" on his lot (Case No. 99-2861), and gave notice of its intent to issue Boston an environmental resource permit and sovereign submerged lands authorization allowing him to construct a rip rap revetment and a dock and to place 3,500 square feet of fill in mainly non-jurisdictional areas (Case No. 99-1916). Although a number of objections were raised by Petitioner in his original filings, as clarified at the final hearing, Petitioner now contends that Boston placed excessive fill on his lot, including an isolated wetland, and that the fill has resulted in flooding, saturated soil, or standing water on Petitioner's property. He also contends that the location of Boston's proposed dock will affect the ability to use his own dock. Because no evidence was presented on the docking issue, and through admissions Petitioner acknowledged that there will be no adverse environmental impacts, no consideration will be given to those objections. Finally, Petitioner does not object to the placement of the rip rap revetment on the shoreline. Accordingly, the request for an environmental resource permit and consent to use sovereign submerged lands in Case No. 99-1916 should be approved. The property in issue lies just south of the Jacksonville University Country Club and a few blocks west of University Boulevard North on Wayland Street, which fronts the eastern side of the St. Johns River in a tract of land known as University Park. Except for the Boston lot, all other waterfront lots are now developed. When facing the river from Wayland Street, Petitioner's lot lies to the right of Boston's lot, while another lot owned by Robert Henderson (Henderson) lies to the left of Boston's lot. The lots are up to 500 feet deep; Boston's lot is around 96 feet wide, while Petitioner's lot has a similar width but narrows to only 20 feet or so near the river. At the river end of the D'Antoni, Boston, and Henderson lots is an area of contiguous wetlands. Until 1995, DEP regulated those wetland areas and this prevented D'Antoni and Henderson from placing any fill in those areas. Under DEP's current wetland delineation rule, however, such areas are non- jurisdictional, and any placement of fill at the river end is outside the purview of DEP's jurisdiction. Before Boston's lot was cleared and filled, it was about a foot lower in elevation than the D'Antoni lot; this was true even though Petitioner has never changed the natural grade of his property since it was purchased and developed. Therefore, water tended to flow naturally from an upland area north or east of the D'Antoni lot, through the D'Antoni lot to Boston's lot, and then through the lower part of the Henderson lot populated by "very mature cypress trees," and eventually into the St. Johns River. According to a 1977 aerial photograph, the Boston lot contained what appears to be a tidal connection from an uplands area through the wetlands on his property to the river. However, construction on property adjacent to the Henderson lot sometime after 1977 severed this connection, and a tidal connection (direct hydrologic connection) to the river no longer exists. Under Rule 62-341.475(1)(f), Florida Administrative Code, "a single family residence" is exempt from the Environmental Resource Program permitting and a general permit will be granted "as long as it is not part of a larger plan of common development," and "the total area of dredging or filling in isolated wetlands for the residence and associated residential improvement shall not exceed 4000 square feet." Since there is no longer a direct hydrologic connection between the wetlands on Boston's property and the St. Johns River, the wetlands are isolated within the meaning of this rule. Availing himself of the foregoing provision, on October 19, 1998, Boston gave notice to DEP "of [his] intent to use a noticed general permit to fill less than 4,000 square feet of an isolated wetland" on his property. He also provided certain drawings and other information (prepared by his surveyor) to show that he qualified for the permit. DEP does not "issue" a noticed general permit; rather, it only determines whether the applicant qualifies for a permit and then "acknowledges" this fact. Accordingly, on November 5, 1998, DEP "acknowledge[d] receipt" of Boston's notice. Although DEP encourages the user of such a permit to notify affected or adjoining property owners, there was no legal requirement that Boston do so, and he proceeded to clear the lot and then fill a part of the wetland area with two or three feet of dirt without giving notice to Petitioner or Henderson, his two neighbors. The filling raised the elevation of the Boston property at least two feet above the D'Antoni and Henderson lots and impeded the prior natural flow of water. At the same time, Boston constructed a three to four-foot timber wall (consisting of railroad ties) on the Henderson property line to retain the fill and a similar two-foot wall on Petitioner's line. These changes had the effect of impounding the water which had previously flowed naturally in a north-south direction through the wetlands from the D'Antoni lot to the Boston lot to the Henderson lot. It also generated runoff from the Boston lot to the D'Antoni lot, which had not previously occurred. When Petitioner observed the adjacent lot being cleared and filled, and the resulting erosion of fill onto his property, pooling of water, and damage to his chain link fence after a heavy rain in January 1999, he filed a complaint with DEP. An inspection was made by DEP, and Boston was told to stop work until corrective changes were made to ensure that such flooding would not occur. After a series of changes were made which satisfied DEP's concerns, the stop work order was lifted. Boston also signed a consent order and paid a $100.00 fine. However, pending the outcome of these cases, no further construction work has occurred. Petitioner has contended that Boston has placed more than 7,200 square feet of fill on his property in violation of the rule, which limits the amount of fill to less than 4,000 square feet. While this amount of filling has in fact occurred, approximately 3,500 square feet of fill was placed in non- jurisdictional areas between the shoreline and the isolated wetlands, and the rule only requires that Boston limit his fill to less than 4,000 square feet on the isolated wetland. Thus, contrary to a suggestion by Petitioner's engineer, the jurisdictional and non-jurisdictional filling are not totaled together to determine whether the threshold within the rule has been exceeded. Through photographs received in evidence and testimony by Petitioner and his wife, it was established that flooding or standing water has occurred on Petitioner's property during heavy rainfalls since the filling occurred, even as recently as January 2000. The evidence further shows that Petitioner's chain link fence has been damaged through the weight of the fill pressing against the fence. In addition, Petitioner has suffered the loss of "a couple of trees" because of "mucky" and "oversaturated" soil caused by excessive water. Also, a dog house on a raised platform in the back yard which was previously dry now "stays in water." These affected areas lie immediately adjacent to the filled area of the isolated wetland on Boston's property. Finally, there is an erosion problem beyond the isolated wetland consisting of sand and silt flowing from Boston's lot onto Petitioner's lot during heavy rainfalls. Despite these problems, Petitioner does not object to the development of the lot; he only asks that Boston do so in a manner which prevents these conditions from recurring in the future. Petitioner's engineering expert, Ronnie D. Perron (Perron), a professional engineer who visited the site in August 1999, ran a computer model (Interconnected Channel and Pond Routing, Version 2.11) showing runoff both before and after the fill was placed on Boston's lot. He concluded that "there was over one and a half feet of flooding in that wetlands due to filling Mr. Boston's lot" during a "mean annual storm event," which assumes five inches of rain during a 24-hour period. Even when he used more conservative estimates, Perron still arrived at water accumulations ranging from 0.6 feet to 1.5 feet. This excessive runoff is caused by the retaining wall and fill, which "blocks off" the water and causes it to "spread out in [Petitioner's] whole back yard." In response to Perron's model, a DEP professional engineer, David P. Apple (Apple), ran another computer model (PONDS, Version 2.25) received in evidence as Respondent's Exhibit No. 14. That model shows that during a three-year, one- hour storm event, the small depressed area on Boston's property (including the isolated wetland) had sufficient storage capacity to absorb up to six inches of runoff from off-site areas and not overflow back onto Petitioner's property. This size of storm event (which produces two and one-half inches of rain in an hour) is typically used by the Department in calculations for single- family residential property when the impervious area site is less than fifty percent. In this case, Apple didn't "feel that the impervious area out there was greater than [fifty] percent." Therefore, Apple concluded that the storm event used by Perron was too large, and that the smaller event used in his model was more appropriate. He also concluded that the Boston property could retain all water in a normal storm event without discharging any stormwater onto the D'Antoni lot. He did not, however, address the issue of the fill and retaining wall on the Boston lot impounding the water on his neighbor's lot. In developing the input perameters for his model, Apple assumed that water falling at the front (Wayward Street) side of the D'Antoni property drained to the front roadway; in fact, much of that water drains to the rear of the lot into the wetland area. A similar incorrect assumption was made regarding runoff on the Boston lot. If modifications were made to account for the proper drainage patterns, the Apple model would show larger amounts of water staging on the Boston property during rainfall events, which would increase the possibility of runoff onto the D'Antoni lot. Apple questioned the accuracy of the Perron model given the fact that Perron had used a larger storm event than he (Apple) believed was appropriate. However, even if Perron had used a three-year, one-hour storm event on his computer model, as advocated by Apple, he established that it would have resulted in flood staging on Petitioner's property between 0.97 and 1.64 feet during a smaller storm event. DEP proposed no solutions to the water problems on the D'Antoni lot, presumably because it concluded that the rule was satisfied; that by filling the Boston lot, it was no longer the "stormwater pond for the neighborhood runoff"; and that DEP had no other regulatory authority to solve this peculiar situation. The record shows clearly, however, that if no changes are made, water will continue to back up on Petitioner's property by virtue of the higher elevation on the Boston lot, and the possibility of runoff from Boston's lot exists during certain storm events. Neither condition existed before the fill was added. To correct the foregoing conditions, Perron proposes two corrective measures. First, Boston should install a yard drain (underground culvert) beginning in the wetlands area of his property and outfalling to the cypress trees on the adjacent Henderson lot. Besides providing an outfall for the excess water, this would also help recharge the mature cypress trees on the Henderson lot. Second, D'Antoni should install a series of "yard drains" using high-density polyethylene pipes to convey the standing water on his lot directly into the St. Johns River. The expert opined that neither activity would require a permit from DEP. These modifications are reasonable and appropriate and should be used by the factioning parties. Accordingly, the installation of a yard drain should be a condition for Boston to use his noticed general permit.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Environmental Protection enter a final order granting the application for a permit and consent in Case No. 99-1916 and confirming that David Boston qualifies for use of a noticed general permit in Case No. 99-2861 provided, however, that such use be conditioned on Boston constructing an underground culvert with a yard drain from the wetland area on his lot to the St. Johns River. DONE AND ENTERED this 22nd day of March, 2000, in Tallahassee, Leon County, Florida. DONALD R. ALEXANDER 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 22nd day of March, 2000. COPIES FURNISHED: Kathy Carter, Agency Clerk Department of Environmental Protection 3900 Commonwealth Boulevard Mail Station 35 Tallahassee, Florida 32399-3000 Vincent R. D'Antoni, Jr. 3824 Wayland Street Jacksonville, Florida 32277 David Boston 2262 Orchard Street Jacksonville, Florida 32209 Francine M. Ffolkes, Esquire Department of Environmental Protection 3900 Commonwealth Boulevard Mail Station 35 Tallahassee, Florida 32399-3000 Teri Donaldson, General Counsel Department of Environmental Protection 3900 Commonwealth Boulevard Mail Station 35 Tallahassee, Florida 32399-3000
Findings Of Fact By application filed on September 9, 1980, Respondent/Applicant, John H. Land Builders, Inc., sought a permit from Respondent, Department of Environmental Regulation (DER), to conduct dredge and fill activities in an approximate one acre area located in the southeast corner of a proposed housing development in Section 10, Township 29 South, Range 19 East, in Hillsborough County, Florida. A copy of this permit application may be found as DER Composite Exhibit B. Specifically, Land sought to excavate 4,100 cubic yards of material (muck) and to backfill the area with 14,400 cubic yards of granular material from adjacent uplands to allow for development of a street and building lots in an unnamed wetland. A permit from DER is required because the project involves a wetland that is contiguous with a ditch that connects to the Palm River, all of which constitute waters of the State that are subject to dredge and fill permitting requirements. The plans have been reviewed by other state and local authorities in the Hillsborough County area, and no adverse comments have been received. After the installation is completed, the elevation of the land will be raised, and will permit five homesites to be built on the land as well as the construction of an access road to the property from an adjacent street. The installation in question is but a small part of a larger proposed housing development known as Timberlake Subdivision that will ultimately involve more than 300 homesites. However, no further dredge and fill activities under DER jurisdiction will be undertaken. The proposal of Respondent/Applicant was received by the Department and certain timely additional requests were made from the Department to the Applicant to provide information necessary to evaluate the request for permit. Applicant subsequently furnished the required information, and it may be found in DER Exhibit C. The Department performed a field inspection and review of the dredge and fill site, including the surrounding areas, to assess the impact of water quality caused by proposed dredging and filling activities in wetlands areas. It concluded that the Applicant had affirmatively provided reasonable assurance to the Department that the short-term and long-term effects of the activity would not result in violations of the water quality criteria, standards, requirements and provisions of Chapter 17-3, Florida Administrative Code. A copy of the permit application appraisal may be found in DER Exhibit A. On January 21, 1981, DER issued its Intent to Issue a dredge and fill/water quality certification with certain conditions therein, including the requirement that future development be dependent upon separate stormwater review by the Department (DER Exhibit D). On October 20, 1980, Applicant filed a Notice of Stormwater Discharge with the Department's Southwest District Office in Tampa (DER Composite Exhibits B & F). Thereafter, the Department conducted a field inspection and review of the proposed housing development and surrounding areas to determine whether the proposed stormwater discharge would have a significant impact on water quality. Based upon the results of that inspection, which concluded that the proposed discharge would not have a significant impact on the waters of this State, the Department issued Applicant a stormwater exemption on November 7, 1980. The project site is located in an unnamed wetlands area. It is weedy and has a dense cover of primrose willow (Ludwigia peruviana), willow (Salix caroliniana), cattail (Typha sp.), red maple (Ace rubrum) and is overgrown with grapes vines (Vitus rotendifolia). It lies just to the north of a series of fish farms owned by Petitioner, Penisular Fisheries, Inc. Other commercial industries and single family dwellings are found south of the proposed activities. To the west and northwest lie marshlands, two old borrow pits, and Interstate Highway 4. Water runoff from the dredge and fill area will flow to the storm drainage system in the proposed street, and from there to a designated retention pond. Because there will be minor contaminants in the runoff, the water will be retained for treatment for a period of five days, which exceeds the 100 hour retention period required by DER. After treatment, the runoff will flow into a well-defined county drainage ditch west of 58th Street, travel down the ditch which lies adjacent to the fish ponds, and then meander into the existing marshland. Water runoff from the remainder of the project (excluding the dredge and fill area) will drain into the two existing borrow pit lakes which lie close to Interstate Highway 4. The designated retention pond will be located west of the project and has a controlled spill-off elevation. It will provide sufficient treatment to and cleaning of the water to insure that no violation of water quality standards will occur. A stormwater system to be constructed by Applicant will actually reduce the volume of water runoff now occurring. Reasonable assurances have been given that the short-term and long-term effects of the proposed activity will not result in violations of the water quality criteria, standards, requirements and provisions of the Florida Administrative Code. Based upon Use location of the point of discharge of Land's proposed stormwater discharge, the volume and frequency of discharge for which the proposed facilities are designed, and the anticipated constituents of discharge, the proposal will not have a significant impact on the water quality of the waters of this State. Accordingly, the exemption from stormwater licensing requirements was properly issued by the Department. Water quality violations which were alleged to have existed in a ditch on property adjoining the properties of Land and Petitioners were the subject of a notice of violation issued to the owners of that property. However, no notice of violation was ever issued to Land. Further, the ditch is not a part of the installation proposed by Applicant for issuance of the dredge and fill permit. Petitioners' concern is that Applicant has not given reasonable assurance that water quality standards would not be violated by the stormwater discharge and that downstream waters might be contaminated by urban runoff from the project. In reaching that conclusion, Petitioners' expert relied on a review of certain materials submitted to him by Petitioner's counsel. He did not visit the project site, nor had he reviewed drainage plans or construction drawings for drainage improvements contemplated by the notice of stormwater discharge filed by Land.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that Respondent Department of Environmental Regulation grant the requested dredge and fill permit/water quality certification to Respondent/Applicant John H. Land Builders, Inc. It is further RECOMMENDED that the Respondent Department of Environmental Regulation enter a final order confirming the stormwater exemption issued by the Department to Respondent/Applicant on November 7, 1980. DONE and ENTERED this 27th day of April, 1981, in Tallahassee, Florida. DONALD R. ALEXANDER 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 27th day of April, 1981.
The Issue The issues are: (a) whether the accident on December 12, 1995, involving a shrimp trawler, the Atlantic Sun, resulted in a discharge of pollutants into the Atlantic Ocean and caused natural resource damages; and, if so, (b) what amount does Petitioner William A. Harden owe the Department of Environmental Protection for investigation costs incurred in investigating the break up of the Atlantic Sun and for natural resource damages resulting from the accident.
Findings Of Fact On December 12, 1995, the commercial fishing vessel, the Atlantic Sun, went aground on the south jetties in the Atlantic Ocean at the entrance to the channel of St. Mary's River. The shrimp trawler broke apart on the jetties near Fernandina Beach, Florida. Debris from the wrecked ship washed onto the beaches near the jetties. The United States Coast Guard (USCG) arrived at the scene of the accident and removed Roger Cummings, Captain of the Atlantic Sun, and Daniel Boone, an owner of the vessel, from the scene of the wreck. The USCG informed the Florida Marine Patrol (FMP) about the accident on December 12, 1995. Michael Lehman, FMP officer, met the USCG officers investigating the accident when they brought Captain Cummings and Mr. Boone to shore. Captain Cummings stated that the ship had 1200 to 1300 gallons of diesel fuel in its tanks when it hit the jetties. The water was too rough for Officer Lehman to investigate the accident scene that night. Officer Lehman and another FMP officer went to the site of the wreck on the morning of December 13, 1997. On his way to the accident scene, Officer Lehman's boat ran through a sheen of diesel fuel from Eagan's Creek to the end of the jetties. Officer Lehman found the Atlantic Sun upside down at the end of the rock jetties. There was a strong smell of diesel fuel at the site of the wreck. Diesel fuel ran down both sides of the jetties. The fuel was bubbling up on both sides of the wrecked ship. On December 14, 1995, the flow of fuel from the capsized vessel was still not contained. Officer Lehman estimated that approximately 500 gallons of fuel had been discharged into the ocean. He based this estimate on his personal observation at the accident scene, personal experience as an investigator of pollutant discharges, and witness statements. USCG officers estimated that the Atlantic Sun discharged 1,000 gallons of diesel fuel. The diesel fuel sheen on the water surface eventually affected a large area. It covered the entrance to St. Mary's River Channel from bank to bank. The fuel flowed west and inland from the ship wreck. It covered much of Cumberland Sound. It affected coastal waters from the accident site to Ft. Clinch State Park Beach and south approximately two miles. Special management areas which were affected are: Ft. Clinch State Park, Cumberland National Seashore, and Ft. Clinch Aquatic Preserve. By December 16, 1995, Officer Lehman could no longer see fuel coming from the area of the wreckage. By that time, the spilled fuel had dissipated. The accident occurred within one statute mile seaward of the coastline of the state of Florida. The two FMP officers worked a total of 18 hours during the course of their investigation. The cost to Respondent for the two officers' time was $244.80. The FMP officers used a single engine boat in their investigation for five hours. The single engine boat cost Respondent $100.00. They used a twin engine boat for six hours to conduct the investigation. The twin engine boat cost Respondent $240.00. The FMP officers drove a total of 76 miles in patrol vehicles. At $0.20 per mile, the total cost for mileage was $15.20. The FMP officer spent $5.00 developing pictures which were taken during their investigation. Respondent incurred clerical expenses during the investigation in the amount of $33.60. Respondent's total cost for the investigation was $638.60. Respondent assessed Petitioner with damages to natural resources. The damages were based on the total amount of pollutants discharged into Florida's coastal waters as a result of the Atlantic Sun going aground on the jetties. The amount of pollutants was 500 gallons of diesel fuel. Impact to special management areas was also taken into consideration in determining the natural resource damages. Respondent utilized a statutory formula to assess Petitioner with natural resource damages in the amount of $8,008.47. Respondent sent Petitioner a final agency action letter advising him of the total assessment in the amount of $8,647.07.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that Respondent enter a Final Order assessing Petitioner $638.60 in investigative costs and $8,008.47 in natural resource damages. DONE AND ENTERED this 5th day of February, 1998, in Tallahassee, Leon County, Florida. SUZANNE F. HOOD 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 Filed with the Clerk of the Division of Administrative Hearings this 5th day of February, 1998. COPIES FURNISHED: Kisha R. Pruitt, Esquire Kathelyn M. Jacques, Esquire Department of Environmental Protection Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 Daniel Boone Boone and Harden Atlantic Sun Post Office Box 438 Darien, Georgia 31305 William A. Harden Boone and Harden Atlantic Sun Route 3, Box 3158 Townsend, Georgia 31337 Kathy Carter, Agency Clerk Department of Environmental Protection Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 F. Perry Odom, Esquire Department of Environmental Protection Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 Virginia B. Wetherell, Secretary Department of Environmental Protection Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000
The Issue The issue is whether Petitioner is entitled to an environmental resource permit for a surface water management system and the alteration of a wetland in connection with the construction of two warehouses, paved parking and loading areas, a detention pond, and enhancement of the remainder of the existing wetland. If not otherwise entitled to the permit, an additional issue is whether Petitioner is entitled to the permit through an exemption, waiver, or variance from the standard requirements for mitigation.
Findings Of Fact Background Petitioner Carlos M. Beruff, as Trustee under Florida Land Trust No. 22 dated March 30, 1989 (Petitioner), purchased 85 acres of land in Manatee County for $1.2 million in May 1989. (All acreages are approximate.) The east boundary of the 85-acre parcel consists of about 1700 feet of frontage along U.S. Route 301. One month after the purchase, Petitioner sold 70 of the 85 acres for $1.6 million. In the intervening month, Petitioner incurred no significant expenses for development or marketing, although the development and marketing expertise of Carlos Beruff facilitated the $1.6 million sale. The 70 acres that were sold included the frontage on U.S. Route 301. The 15 acres remaining after the sale comprise two tracts of 9 and 5.88 acres. In these cases, Petitioner seeks an environmental resource permit (ERP) for activities involving the 5.88-acre parcel (Site). The 9-acre parcel occupies the northwest corner of the 85-acre parcel. The Site, which was platted in 1911, is the only noncontiguous land constituting the 85-acre parcel; it is 450 feet south of the remainder of the 85-acre parcel. The sole parcel between the Site and the remainder of the 85- acre parcel was originally owned by Lowe's and is now owned by Cheetah Technologies (Cheetah Parcel). The 5.88-acre Site is subject to a road right-of-way of 0.32 acres in favor of the Cheetah Parcel. Of the remaining 5.56 acres, 4.66 acres are wetland and 0.9 acres are upland. The 0.9 acres of upland are subject to an access easement of 0.42 acres, also in favor of the Cheetah Parcel, so the net available upland acreage is only 0.48 acres. The Cheetah Parcel occupies the northwest corner of U.S. Route 301 and Saunders Road (also known as 63rd Avenue East). The Site is immediately west and south of the Cheetah Parcel and occupies the northeast corner of Saunders Road and 24th Street East (also known as Arlin Road). The Site is about 530 feet west of the intersection of U.S. Route 301 and Saunders Road. U.S. Route 301 is a major arterial, and Saunders Road is at least a major collector road. The Site contains about 600 feet of frontage along Saunders Road and 465 feet of frontage along 24th Street East. The Site is in unincorporated Manatee County roughly midway between downtown Bradenton and downtown Sarasota. Saunders Road crosses a north-south railroad line approximately one-half mile west of the Site and Bowlees Creek about 650 feet west of the railroad track. The 9-acre parcel still owned by Petitioner is about 350 feet north-south by 1250 feet east-west. The western boundary of the 9-acre parcel runs along the east side of the railroad line. Like the other parcels involved in this case, the 9-acre parcel drains into Bowlees Creek. The Site is in an area characterized by industrial land uses, including warehouses, a junkyard, an industrial center, and a bakery. A halfway house for persons recently released from prison is located one-quarter mile to the west of the Site. The Site is zoned HM (heavy manufacturing), which is a limited, and thus valuable, zoning category in Manatee County. Respondent has issued three relatively recent surface water management permits that are relevant to these cases: a 1986 permit for the development of the Cheetah Parcel (Cheetah Permit), a 1988 permit for the widening of Saunders Road from two to four lanes (Saunders Road Permit), and a 1989 permit for the construction of a commercial park north of the Site known as 301 Park of Commerce (301 Permit). Bowlees Creek runs from north to south, emptying into Sarasota Bay across from Longboat Key. Sarasota Bay is an Outstanding Florida Water. Bowlees Creek drains a nine square-mile basin, which is about 21-25 percent developed. The Bowlees Creek basin is an open drainage basin. Due to flooding problems, Manatee County has imposed special limitations upon development within the Bowlees Creek basin. Among these limitations is that the rate of post- development runoff must be less than the rate of pre- development runoff--up to 50 percent less, according to expert witnesses for both sides (Lawrence Weber, Tr. Vol. III, pp. 118-19; and Daryl Flatt, Tr. Vol. IV, p. 230). By stipulation, the Site is at the extreme eastern end of the Bowlees Creek basin. In fact, the Site may have historically drained into Bowlees Creek and will drain into Bowlees Creek after, as described below, the northwest window is added to the surface water management system. In 1993 or 1994, Petitioner began the process of developing the Site following the sale five years earlier of the larger 70-acre parcel. Mr. Beruff has been in the development business for 20 years. His career began in 1980 when Mr. Beruff became an employee for U.S. Homes and Modern Builders; he became self-employed in 1984. Mr. Beruff has developed seven commercial and ten residential developments. Application Process Deciding to pursue warehouse development for the Site, Petitioner initiated the development process by hiring an engineer and environmental consultant. With the assistance of these consultants, Petitioner prepared its application for an ERP. By application dated October 9, 1998, and filed November 13, 1998, Petitioner requested that Respondent issue an individual ERP for the construction on the Site of a surface water management system in connection with the construction of two warehouse buildings, paved parking and loading areas, and a detention pond, as well as the enhancement of the remainder of the existing wetland (Application). The Application states that the total building, parking, and loading areas would be 58,026 square feet and that wetlands constitute 3.37 acres of the 5.88-acre Site. The site plan attached to the Application shows a "wetland preservation & enhancement" area of 1.592 acres at the north end of the Site. To the south, toward Saunders Road, are two buildings with paved parking and loading areas. On the southwest corner is a "stormwater treatment & attenuation" area. After several discussions with Respondent's staff, Petitioner modified the proposed development. In its latest revision, the footprint of the proposed development would occupy 2.834 acres of wetland, leaving 1.826 acres of wetland. On November 13, 1998, Petitioner filed a Petition for Exemption, Waiver or Variance as to Mitigation Requirements, seeking an exemption, waiver, or variance from all laws requiring offsite mitigation or additional onsite mitigation for the portion of the wetland that would be destroyed by the proposed development. Drainage At present, the Site receives runoff from a total of 27 acres. The offsite contributors of runoff are the Cheetah Parcel and a segment of Saunders Road east of 21st Street East. These locations have drained into the Site for hundreds of years. In general, drainage raises two distinct issues: water quality and water quantity. For an open drainage basin, the issue of water quantity expresses itself primarily in runoff discharge rate, although historic basin storage is also an issue. As discussed in the Conclusions of Law, the Respondent's Basis of Review identifies different storm events to which applicants must design different components of surface water management systems. For water quantity, the system may release no more than the permitted discharge rate in the design storm, which is the 25-year, 24-hour storm event. At present, the design storm would produce about eight inches of rain, although the same design storm, due to a different model or modeling assumptions, produced 9.5 inches of rain at the time of the issuance of the permit for the Cheetah Parcel. (The practical effect of this change in the calculation of the design storm is that the quantitative capacity of the surface water management system of the Cheetah Parcel is nearly 20 percent greater than would be required today.) For water quality, the system must capture the first inch of runoff (sometimes only the first half-inch of runoff, depending on the type of system and receiving waterbody). In contrast to the relatively infrequent 25-year storm, approximately 90 percent of the storms in Respondent's jurisdiction produce no more than one inch of runoff. The underlying premise is that the first inch of runoff contains nearly all of the contaminants that will be flushed from impervious surfaces. The Cheetah surface water management system features a wetland and a retention pond along the north property line of the Site. The Cheetah pond and wetland attenuate runoff before allowing it to drain south onto the Site. The Cheetah surface water management system also includes a swale running north along 24th Street East to take runoff eventually to Bowlees Creek. The Saunders Road surface water management system discharging onto the Site consists largely of an underground, offline storage and attenuation system that stores excess runoff, as compared to pre-development rates, in lateral pipes off a weir. Nothing in the record suggests that the surface water management systems authorized by the Cheetah Permit or the Saunders Road Permit fail to provide reasonable assurance that the discharged runoff is of satisfactory water quality. Following their respective permits in 1986 and 1988, respectively, the rates of discharge of runoff from the Cheetah Parcel and Saunders Road were no greater post- development than they had been pre-development. The Cheetah Parcel post-development and pre-development discharge rates were both 10.6 cubic feet per second (cfs). The Saunders Road post-development and pre-development discharge rates were both 32.4 cfs. In issuing the 301 Permit, Respondent authorized the construction of a drainage system that would take runoff north along 24th Street East and then west, eventually emptying into Bowlees Creek. Conforming to the previous drainage system, the new system replaced an open ditch with underground stormwater pipes. Of particular relevance to the Site, two prominent features of the system authorized by the 301 Permit were windows in the vicinity of the southwest and northwest corners of the Site (Southwest Window and Northwest Window). A window is an opening in the wall of a hardened structure whose purpose includes drainage. The opening is constructed at a certain elevation and a certain size to allow specified volumes or rates of water to pass into the structure and then offsite. The 301 Permit authorized the construction of a swale along the southwest corner of the Site to direct runoff discharging from the Saunders Road system into the Southwest Window. This swale has been construed. However, several problems have precluded the construction of the Southwest Window, probably permanently. The most serious problem, from an engineering perspective, is the failure to lay the stormwater pipe along 24th Street East at the proper depth. The stormwater pipe was erroneously installed at an elevation of 15.32 feet National Geodetic Vertical Datum (NGVD), and the Southwest Window was to have been cut at a control elevation of 14.75 feet NGVD. The discharge elevation of the Saunders Road outlet precludes raising the control elevation of the Southwest Window sufficiently to allow gravity drainage into the stormwater pipe. Exacerbating the discrepancy among the as-built elevations of the three structures is what appears to be a design problem belatedly recognized by Respondent. Respondent is justifiably concerned that the Southwest Window, at a control elevation of 14.75 feet NGVD, would draw down the water elevation of the Site's wetland, which is at a wet season elevation of 16.5 feet NGVD (now actually 17 feet NGVD, possibly due to the absence of the Southwest Window). A third problem with the Southwest Window is that the southwest corner of the Site was not historically a point of discharge, so the Southwest Window would deprive the Site's wetland of runoff. Fortunately, neither the Southwest nor the Northwest Window is essential for the proper operation of the surface water management system of 301 Park of Commerce, which largely depends on a series of lakes for treatment and attenuation. The Northwest Window was to be at elevation 16.5 feet NGVD, and its construction would provide needed drainage for the Site. In general, the Northwest Window does not raise the same concerns as does the Southwest Window. The Northwest Window is in the vicinity of the historic point of discharge for the Site and replaces a ditch permitted for the Cheetah Parcel to take runoff north along 24th Street East. The Northwest Window would also alleviate a standing-water problem at the northwest corner of the Site. However, Manatee County, which controls the right- of-way on which the Northwest Window is located and is responsible for its construction and maintenance, has discovered that it lacks a sufficient property interest to access the Northwest Window. The County has since initiated the process by which it can obtain the necessary interest, and, once completed, the County will cut the Northwest Window into the existing structure. Due to the role of the Northwest Window in draining the runoff in the area, including the Site, the Application reincorporates the Northwest Window, as it should have been constructed pursuant to the 301 Permit. Although the Cheetah and Saunders Road permits resulted in greater runoff volume entering the Site, more importantly to area drainage, these permits did not result in greater runoff rates and or in a deterioration in runoff water quality. Likewise, the failure to construct the Southwest Window and Northwest Window is not especially relevant to area drainage, nor is the likely inability ever to construct the Southwest Window. Far more important to area drainage is the fact that Petitioner proposes that the Site, post-development, would produce a runoff rate of 10.6 cfs, as compared to a pre-development runoff rate of 7 cfs. A serious adverse impact to area drainage, the proposed activity increases the runoff rate by 50 percent in a floodprone, 80-percent builtout basin--a basin of such sensitivity that Manatee County is imposing a post-development requirement of substantially reduced runoff rates. The cumulative impacts of the proposed development, together with existing developments, would be to cause substantial flooding of the Bowlees Creek basin. Petitioner's expert attempted to show that the runoff from the Site, which is at the extreme eastern end of the Bowlees Creek basin, would be delayed sufficiently so as not to exacerbate flooding. Respondent's expert thoroughly discredited this testimony due, among other things, to its reliance upon obsolete data and an unrealistic limitation upon the assumption of the direction of travel of storms. Similarly, Petitioner failed to prove that the authorized discharge rate for the 301 Permit is 42 cfs. This assertion is most succinctly, though not exclusively, rebutted by the fact that the 42-inch pipe can only accommodate 18 cfs. Even if the 42-inch pipe could accommodate a substantially greater runoff rate, Petitioner's expert would have erroneously inferred a permitted discharge rate from this increased capacity without negating the possibility that other structures in the 301 surface water management system effectively reduced the rate or that oversized structures existed to accommodate higher runoff rates in storms greater than the design storm. In addition to increasing the runoff rate by 50 percent, Petitioner's proposal would also reduce the historic basin storage by over 40 percent. Displaced basin storage moves downstream, increasing flood levels from fixed storm events. At present, the Site provides 8.68 acre-feet of historic basin storage. The Application proposes to replace this storage with storage in the wetland and retention pond totaling only 4.9 acre-feet. The loss of 3.8 acre-feet of basin storage means that this additional volume of water would, post-development, travel down Bowlees Creek. A final drainage deficiency in Petitioner's proposal arises out of a berm's proposed outside of the Northwest Window. A one-foot bust in the survey of Petitioner's expert would have resulted in this berm preventing runoff from entering the Site from the Cheetah Parcel, as runoff presently does. Respondent's expert suggested several possible alternatives that might result in a permittable project with respect to post-development runoff rates (the record is silent as to the effect of these alternatives upon historic basin storage, although it would seem that they would add storage). Reducing the area of destroyed wetlands to one acre would probably reduce the excess of post-development runoff rate to 1-2 cfs. Petitioner could then obtain offsetting attenuation through a variety of means, such as by obtaining an easement to use the wetland on the Cheetah Parcel, constructing an attenuation pond on the 9-acre parcel, or constructing underground vaults in the filled area of the wetland on the Site. Wetlands Except for the road right-of-way, the Site is undeveloped and forested. The presence of 25-year-old red maples militates against attributing the transition from an herbaceous to a forested wetland to the failure to install the Northwest and Southwest windows. More likely, this transition to the sub-climax species of red maple and willow (in the absence of a cypress source) is due to the repression of fire on the Site. Experts for the opposing sides differed sharply in their biological assessments of the wetland. Petitioner's expert described a stressed wetland whose impenetrable thicket provided habitat only to a lone rat and swarm of mosquitoes. Respondent's expert described a robust wetland featuring a luxuriant overstory of red maple and Carolina willow; an rich understory of ferns, and diverse wildlife ranging from birds in the air (direct evidence); fish, snails, and tadpoles in a small pond (direct evidence); and squirrel and opossum (indirect evidence) scampering (indirect evidence) among the buttonbush, elderberry, and wax myrtle (direct evidence). Undoubtedly, the wetland has been stressed; approximately 30 percent of the wetland vegetation is Brazilian pepper, which is a nuisance exotic. However, the wetland is well hydrated. Issuance of the Cheetah Permit was predicated, in part, upon the rehydration of the wetland on the Site. With the issuance of the Cheetah Permit and especially the Saunders Road Permit, the quality of water entering the wetland has improved by a considerable amount. As already noted, added volumes of runoff are entering the wetland since the issuance of these two permits, although post-development runoff rates are the same as pre-development runoff rates. On balance, the wetland is functioning well in providing habitat and natural drainage functions. Giving due weight to the current condition of the wetland, the enhancement offered by Petitioner does not approach offsetting the loss of wetland area. In return for destroying 2.83 acres of the wetland, Petitioner proposed the enhancement of the remaining 1.83 acres by removing exotic species to no more than 10 percent of the total vegetation. The mitigation is plainly insufficient because of the level of functioning of the entire wetland at present. Additionally, Petitioner has failed to demonstrate that the Brazilian pepper, which is the major nuisance exotic occupying the Site, is evenly distributed; to the contrary, it is present mostly outside the wetland, along a berm just outside of the wetland. The lack of seedlings and old specimens suggests that the Brazilian pepper population may not be stable and may itself be stressed. Petitioner's failure to show that the remaining wetland area has more than 10 percent infestation or is likely to suffer additional infestation further undermines the effectiveness of the proposed mitigation. Respondent has never issued an ERP for a proposed activity involving the alteration of wetlands when the enhancement mitigation ratio is as low as .65:1, as Petitioner proposes. In general, Respondent requires higher mitigation ratios when proposals involve wetlands enhancement, rather than wetlands creation, because the wetlands to be enhanced are already functioning--in these cases, at a relatively high level. Although Petitioner has been unwilling to consider such alternatives, numerous alternatives exist for offsite mitigation or mitigation banking, if insufficient area exists for adequate onsite mitigation. Lastly, Petitioner devoted considerable effort at hearing to portraying Respondent's handling of the Application as flawed and unfair. However, the evidence does not support these assertions. Most strikingly, Respondent's staff treated the drainage windows inconsistently, to the benefit of Petitioner. They treated the Northwest Window as installed for the purpose of calculating the pre-development runoff discharge rate to Bowlees Creek. Until the Northwest Window is installed, the actual rate is even lower. This approach is justifiable because the Northwest Window will be installed at some point. On the other hand, Respondent's staff ignored the higher wetland elevation on the Site, presumably resulting from the absence of the Southwest Window. However, this approach, which benefits Petitioner in calculating wetland drawdown effects, is unjustifiable because the Southwest Window probably will never be installed. Petitioner's specific complaints of unfair treatment are unfounded. For example, Petitioner suggested that Respondent credited Lowe's with wetland acreage for the littoral shelf of its wetland, but did not do so with the wetland on the Site. However, Petitioner produced no evidence of similar slopes between the two shelves, without which comparability of biological function is impossible. Additionally, Petitioner ignored the possibility that, in the intervening 14 years, Respondent may have refined its approach to wetland mitigation. Although occurring at hearing, rather than in the application-review process, Respondent's willingness to enter into the stipulation that the Site presently drains into Bowlees Creek, despite recent data stating otherwise, was eminently fair to Petitioner. Absent this stipulation, Respondent would have been left with the formidable prospect of providing reasonable assurance concerning drainage into the floodprone Bowlees Creek when the post-development rate was 10.6 cfs and the pre-development rate was 0 cfs.
Recommendation Based on the foregoing, it is RECOMMENDED that Respondent deny Petitioner's application for an environmental resource permit and for an exemption, variance, or waiver. DONE AND ENTERED this 29th day of February, 2000, 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 29th day of February, 2000. COPIES FURNISHED: S. W. Moore Tracey B. Starrett Brigham. Moore, Gaylord, Schuster, Merlin & Tobin, LLP 100 Wallace Avenue, Suite 310 Sarasota, Florida 34237-6043 Mark F. Lapp Jack R. Pepper Assistant General Counsel Southwest Florida Water Management District 2379 Broad Street Brooksville, Florida 34609 E. D. "Sonny" Vergara Executive Director Southwest Florida Water Management District 2379 Broad Street Brooksville, Florida 34609-6899
The Issue The issue in this case is whether Petitioners' activities on their property in Sumter County, which impacted 38 acres of wetlands, are exempt under Section 373.406(2)-(3), Florida Statutes,1 from environmental resource permit (ERP) regulation.
Findings Of Fact Petitioners hold title to approximately 180 acres of agricultural land north of State Road 44 in Sumter County.3 Danny J. Suggs and his wife purchased the property in 1997 and 1998 to start to fulfill his "dream" to build multiple residences for himself and his wife and for members of his family on the property and to raise cattle and plant a pecan grove and retire from his construction and roofing contracting businesses. His concept was for the real estate to be held in a family trust. When Mr. Suggs began to implement his plans, he learned that Sumter County required that the building permit for each residence be on a separate parcel of at least five acres in size. For that reason, he gave his family members five-acre deeds for each residence he wanted to build. However, while they had deeds for their lots, none of the family paid more than nominal consideration, paid for costs of development or construction, or had any actual control of Mr. Suggs' plans for the property. Soon after buying the property, Mr. Suggs bought a few head of cattle that were allowed to roam and graze on the property. He then began to develop the property. He dug canals, ditches, and ponds, and constructed fill roads. As part of his surface water management system, Mr. Suggs constructed an earthen berm along part of the western perimeter of the property to keep water from flowing off his property and into Rutland Swamp and Creek, which are waters of the State. Some of Mr. Suggs' land alterations were in the 100-year floodplain, including an encroachment into land owned by a neighbor. Mr. Suggs testified that he has the neighbor's permission, but he has no written permission for the encroachment. Mr. Suggs' activities on the property impacted approximately 38 acres of wetlands. In December 2002, the District cited Petitioners for dredging and filling wetlands on the property without a permit. Extensive litigation ensued, during which Petitioners took the position that they were exempt under Section 373.406(2)-(3), Florida Statutes--the "agricultural" and the "agricultural closed system" exemptions, which are set out in Conclusion 18. Petitioners continued development and construction activities until enjoined by the circuit court in March 2004. By the time of the court's injunction, Mr. Suggs had completed about 80 percent of his planned surface water management system for the property. Mr. Suggs intended his design to retain all surface on the property in a 50-year, 24- hour storm event. However, it was not proven that Mr. Suggs' design would have accomplished his intended purpose. By the time of the court's injunction, Mr. Suggs also had built six large residences for family members and dug ditches around each residence for drainage. He says he has plans to build another eight identical residences for other family members. In May 2004, Petitioners retained Gary Bethune, an agricultural engineer, to attempt to design an agricultural closed system that would be exempt under Section 373.406(3), Florida Statutes, for presentation in a hearing before the state circuit court. Mr. Bethune completed his design in June 2004. Mr. Bethune's design includes an earthen berm to retain all surface on the property in a 100-year, 24-hour storm event. It also incorporates a spillway to discharge excess water into the Rutland Swamp and a covered conveyance structure to allow water from the eastern side of the property to pass through without commingling with surface water on the property and to discharge into Rutland Swamp on the western side of the property. Mr. Bethune's design will not retain surface water on the property in the event of a storm exceeding the 100-year, 24- hour design storm; it also will not necessarily retain all surface water on the property in the event of multiple storm events not exceeding the 100-year, 24-hour storm event. Mr. Bethune's design does not address groundwater. Groundwater will flow under the property towards Rutland Swamp and Creek. Surface water on the property, together with contaminants from cattle grazing on the property and fertilizer and pesticides used growing pecan trees, will percolate into the ground, mix with the groundwater, and flow into Rutland Swamp and Creek. Mr. Bethune's design is not appropriate or reasonable for either a cattle ranch or a pecan grove. It will cause the property to flood during the design 100-year, 24-hour storm and in various combinations of lesser storms. A bona fide cattle ranch is not designed to flood during the wet season. Similarly, a bona fide pecan grove is not designed to flood during the wet season. During and after Mr. Suggs' development and construction activities, his cattle have continued to roam freely around the property. However, besides the inappropriateness and unreasonableness of Mr. Bethune's design for a cattle ranch, Mr. Suggs' other activities also are inappropriate and unreasonable for a bona fide cattle ranch. The ponds, canals, and ditches he dug are much deeper and have banks much steeper than a bona fide cattle ranch would have. They are so deep and steep that cattle will have great difficulty using them for drinking water. In addition, fill from the extraordinarily deep ponds, canals, and ditches as well as fill Mr. Suggs had delivered from offsite has been spread on the property to a thickness that has reduced the amount of cattle forage on the property, instead of increasing and improving it, as would occur on a bona fide cattle ranch. Besides the inappropriateness and unreasonableness of Mr. Bethune's design for a pecan grove, there are no pecan growers anywhere near Petitioners' property. Even if feasible to grow pecans for profit on the property, there was no evidence that any alteration of the property would be appropriate or reasonable to plant a pecan grove. Although there is an area of upland where Mr. Suggs says he wants to plant pecan trees, not a single pecan tree has been planted yet (as of the time of the final hearing). In addition, there was no evidence that the land designated for a pecan grove would not be needed for the eight additional residences Mr. Suggs says he plans to build on the property. The primary purpose of Mr. Suggs' surface water management system is not for agricultural purposes, or incidental to agricultural purposes. Rather, the primary purpose is to impound and obstruct the flow of surface water to facilitate the construction of the residences on his property--the six already built and another eight he plans to build. Mr. Suggs refers to the residences he has built and plans to build as family residences to be owned by a family trust, the six residences already built are now for sale at an asking price of a million dollars each.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the District enter a final order that Petitioners' activities on their property are not exempt from ERP regulation. DONE AND ENTERED this 19th day of February, 2009, in Tallahassee, Leon County, Florida. J. LAWRENCE JOHNSTON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 19th day of February, 2009.
The Issue The issues to be determined in this case are whether Petitioner Highway 60 and 301 Center, Inc., has standing to challenge the proposed Environmental Resource Permit issued to Respondent Big Bend Center, LLC, by Respondent Southwest Florida Water Management District ("District"), and, if so, whether Big Bend Center is entitled to issuance of the proposed permit.
Findings Of Fact The Parties Petitioner owns real property located at 105 U.S. Highway 301 South, in Tampa, which Petitioner leases to commercial businesses. Respondent Big Bend Center owns real property located at 110 U.S. Highway 301 South, which is across Highway 301 from Petitioner's property. Big Bend Center is named in the District's agency action and is the permittee. The site affected by the proposed permit modification is about 2.5 acres in size. It is part of a larger development owned by Big Bend Center, encompassing about 30 acres. The 30-acre site was the subject of a permit issued by the District in 1988. The 1988 permit approved a master drainage plan applicable to all 30 acres. The permit modifications discussed herein are modifications to this initial permit. Respondent Enterprise Holdings leases the 2.5-acre site at 110 U.S. Highway 301 South, which Enterprise uses for the operation of a car and truck rental business. When Petitioner filed its petition with the District, it named Enterprise Holdings, Inc., as a Respondent, even though Enterprise Holdings was not named in the permit. Neither Petitioner nor the District ever questioned the right of Enterprise Holdings to participate as a party. Respondent Southwest Florida Water Management District is the administrative agency charged with the responsibility to administer and enforce chapter 373, Florida Statutes, and the rules promulgated pursuant thereto in Florida Administrative Code Chapter 40D. The Permit The petition for hearing challenged the District's approval of a proposed permit designated 44003983.007. The permit authorized the construction of a building over existing pavement and the addition of a dumpster pad. After the petition for hearing was filed, Big Bend Center requested and the District approved a modification, designated .008, which included the .007 changes and, in addition, authorized the construction of a section of sidewalk and landscape islands in the parking lot. Enterprise then requested and the District approved another modification, .009, which authorized all the changes addressed in .008 and, in addition, authorized changes to the paved parking lot. Standing Petitioner contends that proposed permit, modification .009, would injure Petitioner because the authorized changes would result in flooding of Highway 301 that could reach Petitioner's property or, even if it did not reach that far, would interfere with traffic on Highway 301 in a manner that would disrupt Petitioner's business. The sole factual allegation upon which Petitioner bases its claim of flooding is that the previously-installed pipes that convey runoff to a retention pond may be too small; smaller than was required by Big Bend Center's 1988 permit. Petitioner's expert, Clifford Laubstein, stated that a boundary survey in the permit file shows two 18-inch diameter pipes connected to a 24-inch diameter pipe. Big Bend Center's 1988 permit required these pipes to be 24 inches and 30 inches, respectively. Laubstein admitted that the "as built" construction drawings that were submitted to the District by Big Bend Center after the construction of the master drainage system certifies that the pipes are the required, larger size. Laubstein did not have firsthand knowledge of the size of the pipes. He did not know which document was correct, the survey or the as built drawings. His position was simply that if the survey information was correct, Big Bend Center's stormwater system would fail to function properly and flooding could occur. Laubstein did not know whether the system had failed to function properly in the past or had ever caused flooding. Laubstein did not determine what storm event or volume of runoff would result in flooding of Highway 301, or the extent of flooding that would occur under various storm events. Because as built constructions drawings are prepared by an engineer and submitted to the District for the very purpose of certifying that a system has been constructed in accordance with the requirements of the permit, information in the as built drawings about components of the system would generally be more reliable than such information in a survey that was prepared for another purpose. Furthermore, Enterprise's expert witness, Steve Boggs, measured the pipes and determined they were 24 and 30 inches, as required by the permit. By refuting Petitioner's claim that the pipes "may" be undersized, Respondents refuted Petitioner's claim that Highway 301 or Petitioner's property "may" be flooded if the proposed permit modification is issued by the District. The stormwater system for the proposed project is properly sized to handle the stormwater runoff. Petitioner failed to meet its burden to prove by a preponderance of the evidence that it could be injured by the proposed permit modification.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the District dismiss the petition and issue Environmental Resource Permit 44003983.009. DONE AND ENTERED this 4th day of March, 2013, in Tallahassee, Leon County, Florida. S BRAM D. E. CANTER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 4th day of March, 2013.
Findings Of Fact On June 15, 1977, Respondent Department of Transportation (DOT) filed application with Respondent Department of Environmental Regulation (DER) for a permit to relocate 5,188 linear feet of an existing canal commonly referred to as Cypress Strand Canal in Manatee County, Florida. The application and accompanying drawings show that the scope of the project is not merely limited to relocation of the canal, but other dredge and fill activities in the surrounding area incident to the construction of a highway interchange over State Road 64 approximately four and one-half miles east of Bradenton, Florida. On March 15, 1978, DER issued a Notice of Intent to issue a permit for the application pursuant to Chapter 403, Florida Statutes, and Public Law 92-500. In its notice, the extent of the project was described as follows: PROJECT: To construct an interchange where I-75 will intersect SR-64 by: filling 5,188 linear feet of a channelized cypress stand by placing 27,100 cubic yards of fill in the existing ditch; excavation of 38,250 cubic yards of material to create a new ditch 4,455 feet long; placement of 195,176 cubic yards of fill in an existing borrow pit to construct a road causeway with 241 linear feet of 72 inch RCP and 288 linear feet of 54 inch RCP placed under the causeway to provide water exchange; placement of 161 linear feet of double 8 ft. by 7 ft. box culvert in the new ditch for the crossing of SR-64; placement of 292 linear feet of 8 ft. by 7 ft. box culvert in the new ditch for the crossing of I-75; placement of two 24 inch and one 42 inch pipe to drain runoff from the interchange into the new ditch. The notice also stated that the proposed permit would be subject to certain conditions, including the placement of silt screens downstream from any construction, completion of ditch (canal) relocation and box culvert construction prior to placing fill in the existing canal, sodding of side slopes of causeway fill, and submission of weekly monitoring reports of turbidity before and during construction at certain locations. The letter provided that if monitoring revealed apparent violations of state water quality standards for turbidity, construction activities must cease immediately and not resume until corrective measures have been taken and turbidity has returned to acceptable levels. The letter also required that state water quality standards prescribed in Chapter 17-3, Florida Administrative Code, must be met by the DOT. (Exhibits 21 -22) The general area surrounding the project site consists of partially wooded pasture land and some residential development in the southwest portion. A cypress "head" consisting of almost eight acres lies east of the existing Cypress Strand Canal on the south side of SR-64 in the area where the relocated canal is proposed. The proposed roadway also will go through part of this cypress area. The bald cypress trees there are quite old and most reach a diameter of eight to ten feet. It is considered to be one of the few cypress stands to be found in Manatee County. In order to avoid the construction of bridges for the proposed highway in this area, DOT plans to fill approximately five and one-half acres with consequent removal of most of the existing trees in the filled area. Although there is standing water in the cypress hammock area, only an insignificant amount of surface water flows from there to the canal due to the higher elevation of the canal. It was for this reason that the DER supervisor of the dredge and fill section determined that the cypress head was not contiguous to waters regulated by the department. This decision, which was adopted by the Director of the DER Division of Environmental Permitting, in effect, overruled a recommendation by a DER field representative who had conducted an appraisal of the application and determined that the cypress head acts as a preliminary filtering are before the waters empty into the cypress creek salt marsh which then flows into the Manatee River. Expert testimony establishes that the DER position is correct in this respect and that only an insignificant amount of water leaves the cypress pond area into the canal. (Testimony of Allen, McWilliams, Wanielista, Exhibits 6-13, 17, 18, supplemented by Exhibits 15-16, 20.) On the north side of SR 64, the proposed relocated canal and roadway would be constructed through a "borrow pit" which covers approximately 39 acres. It is proposed to fill approximately 12 acres of this area. The remainder will contain water which acts as a "kidney" to filtrate water flowing from the canal and this area will be more than sufficient to adequately perform such a function. (Testimony of Allen, Wanielista, Exhibits 17-18.) The proposed roadway and ramps at the interchange over SR 64 are designated to retard or slow down the surface water movement to minimize degradation of water quality. To this end, the amount of exposed earth fill will be limited to the extent possible, and after the fill is placed in position, various types of erosion control will be accomplished, such as sodding slopes and building earth berms along the top of the roadway. Hay bales will be placed at the "toe" of the slopes during construction to further retard water movement and the introduction of sediment into waterways. Silt barriers termed "Florida diapers" which consist of a floating barrier of vinyl material will be placed strategically to prevent movement of silt past the barrier. This type of screening has proved to be effective in the past in situations involving relatively still water. Although various nutrients, metals, and chemicals will accumulate on the roadway and slopes during operations, the foregoing methods of retarding flow will serve as filters to reduce degradation of water quality. Additionally, depressions will be made in median areas to permit percolation into the roadway fill material. The "infield" or areas inside the circular ramps, consisting of approximately 20 acres, will be vegetated by the planting of some 150 cypress trees. The 80-foot-wide median area will also be vegetated. The concrete box culverts for the crossing of the proposed roadway will replace some 550 feet of the existing canal and will cause a somewhat accelerated flow of water. Overall, however, in the opinion of Respondents' expert witness, runoff from the interchange area will not measurably increase pollution in the Cypress Strand Canal or the Manatee River. It is his view that much of the water will percolate into the interchange ground area and that any remaining flow will result in 90 percent removal of pollutants by the various proposed methods of erosion control. In fact, the expert is of the view that the project is "overdesigned" at the present time and that the interchange infield design plus the filtering action that will take place in the borrow pit is more than sufficient to insure minimum degradation of water quality. (Testimony of Allen, Wanielista, Exhibit 13, 23.) All contracts for DOT roadway construction involve a special clause termed "Erosion Control and Pollution Abatement" that requires the building contractor to perform the various erosion control measures connected with the project. At a preconstruction conference, the contractor is required to tell DOT the specific manner in which such measures will be accomplished. During the construction phase, representatives of DER monitor the progress and recommend any necessary changes to meet State water quality requirements. Similar monitoring is required after construction and during operation of the roadway for the life of the permit. Although no precise data on the extent of any water degradation can be obtained until after construction commences, past experiences of the DER with the standard DOT construction contracts have proved the measures taken thereunder effectively maintain water quality standards. On this basis, the DER determined that DOT had provided reasonable assurances that construction of the interchange would not result in exceeding State water quality standards. (Testimony of Allen, McWilliams.) Various objections against granting the requested permit have been expressed by members of the public and environmental groups. Although most of these witnesses acknowledge the need for the I-75 extension, they were of the opinion that the roadway should be relocated to the east away from the cypress wetlands area. Additionally, written communications received in evidence from the U.S. Department of Commerce, Florida Division of Forestry, Manatee Health Department, and the United States Department of Fish and Wildlife Service raised objections to the proposed project based upon the elimination of the Cypress Stand area and recommended either relocation of the interchange or preservation of the existing wetlands. (Testimony of Duisburg, Belmont, Miller, Flisik, Matey, Quy, Exhibits 4, 14-16, 19.) Other public witnesses representing the City Council of Palmetto, Florida, the Board of County Commissioners of Manatee County, Florida, Manatee County Chamber of Commerce, City Commission of Bradenton, Florida, and private interests recommended approval of the application. The testimony of these witnesses and various resolutions from governmental bodies primarily focused on the urgent need for construction of the I-75 interchange to promote the economic and general welfare of the area residents and promote safety on the highways. (Testimony of Gallon, Holland, Prather, Neal, Price, Reasoner, Coates, Wiseman, T. Harllee, Jr., T. Harllee, Pinardi, Harden, Exhibits 1-3, 5, 24.)
Recommendation That the Department of Environmental Regulation issue the requested permit to the Department of Transportation. DONE AND ENTERED this 19th day of July 1978 in Tallahassee, Florida. THOMAS C. OLDHAM Hearing Officer Division of Administrative Hearings 530 Carlton Building Tallahassee, Florida 32304 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 19th day of July 1978. COPIES FURNISHED: Honorable Jay Landers, Jr. Secretary Department of Environmental Regulation 2600 Blairstone Road Tallahassee, Florida 32301 Alfred W. Clark, Esquire Assistant General Counsel Department of Environmental Regulation 2600 Blairstone Road Tallahassee, Florida 32301 James W. Anderson, Esquire Assistant General Counsel Department of Transportation Haydon Burns Building Tallahassee, Florida 32304 Judith Smith Kavanaugh, Esquire 543 Tenth Street, West Bradenton, Florida 33505
Findings Of Fact On September 1, 1976, Dennis E. Andrews, trustee of the Fannin Springs Trust (hereinafter "Trust"), applied to the Department of Environmental Regulation for a permit under Chapters 253 and 403, Florida Statutes, and for water quality certification under Public Law 92-500, for the construction of a floating barricade across Fannin Springs Run near its entrance to the Suwannee River in Levy County, Florida. Fannin Springs Run extends to Fannin Springs and the outer limits of the springs are about 400 feet from the Suwannee River. The Trust, composed of four trustees, owns the land surrounding the springs and extending to the river. This property is not commercialized, but permission is periodically granted to church and civic groups to use it for social and money- making purposes. In such instances, the particular group operates a soft drink concession stand and charges fifty cents admission to swimmers using the Trust dock and beach area at the springs. However, the Trust insists that any such groups carry liability insurance to indemnify it against any injuries arising from the use of the land and facilities. The property is not open to the general public unless incident to one of the above authorized uses. (Testimony of Usher, Exhibit 6) The proposed floating barrier would be constructed of styrofoam ballast with a wood frame approximately five feet wide and eighteen inches high to be moored on either side of the run by cables secured on the banks. The purpose of the barricade is to prevent boats from proceeding into the springs where a hazard to swimmers has existed for some time. Some of these craft have customarily maneuvered in and around the main swimming area known as the "boil" and utilized the Trust facilities, including dock and beach area, without permission or otherwise paying the concession fee, thus creating hard feelings between the swimming and boating groups. The presence of the boats also causes resentment by those on shore due to the litter composed of beer cans and the like deposited by their occupants. During summer weekends and holidays, the area becomes quite congested with perhaps several hundred individuals enjoying the springs, together with as many as one hundred boats in the area. Incidents have arisen in the past involving reckless boat operation in the springs. Some were reported to the Levy County Sheriff's Office; however, the former sheriff was unable to verify any of the complaints made to his office. It is conceded by all parties to the proceeding, and those members of the public who testified, that a definite safety hazard exists in the area. (Testimony of Usher, Berry, Hartley, Dean, Brown, Judah, Bancroft, Shifflette, A. Andrews, Locke, Exhibits 1, 2, 6) After receiving the permit application, Marcia Elder, an environmental specialist with the Department of Environmental Regulation, inspected the site and concluded that there was a definite need for the barricade, but that the proposed location, approximately 110 feet from the mouth of the "run," would effectively constitute a denial of public access to the springs. She therefore concluded that a diagonal barrier across the springs would serve the same purpose of safety to swimmers, but also provide the necessary access to those arriving by boats. She further determined that such a barrier would create no adverse effects on water quality or plant and animal life and other natural resources to any appreciable extent. (Testimony of Elder, Exhibit 7) Based on Elder's investigation, the Department of Environmental Regulation indicated to the Trust its intent to deny the application. After the parties were unable to resolve the matter informally, the Trust filed a petition for an administrative hearing on September 1, 1976. Formal notification of the Department's intent to deny the application was stated in a letter of December 7, 1976, which advised the Trust that the proposed denial was based on the fact that the barricade would not allow navigation into Fannin Springs, but would create a navigational hazard or a serious impediment to navigation on navigable waters, so as to be contrary to the public interest. (Exhibit 8) The petition was forwarded to the Division of Administrative Hearings for appointment of a Hearing Officer. Subsequent to the filing of the petition in this Division, the parties negotiated further and arrived at a compromise settlement of the matter. It was agreed that if the Trust would place the barrier across the run at a point closer to the springs than previously requested, the necessary permit would be granted. Petitioners Berry and Bancroft, who had previously objected to any barrier at all, were notified by a letter of the Department, dated April 29, 1977, of the Department's intent to issue the modified permit. Thereafter, on May 11, 1977, they petitioned the Department of Environmental Regulation for a hearing, claiming that the proposed barrier would create a navigational hazard, impede navigation and not be in the public interest. The petition further alleged that the contemplated location of the barrier would be in an area where the water would be too deep for children to have access to the shallow water of the swimming area beyond the barrier. At the hearing, however, petitioners acknowledged the existence of a swimming hazard at the springs and Ms. Bancroft agreed that a diagonal barrier as originally proposed by Elder would be unobjectionable. (Testimony of Berry, Bancroft, Petition) If the barrier is placed across the run as agreed to by the Department and the Trust, it would be close to the mouth of the springs in an area of varying depths of 6 to 8 feet and at times 20 feet. The width of the run where the barrier is contemplated is approximately 110 feet. If boats are stopped in that area, congestion would result and boat passengers attempting to swim to the shallow water near the beach or to the land would be endangered by the boat traffic. It is possible, also, that fees would be charged such individuals to exit on the land of the Trust. If the diagonal barrier were permitted, there would be a much larger area for the use of boats, and access to the swimming area would be greatly facilitated. (Testimony of Usher, Berry, Dilger, Seykera, Judy) On July 19, 1977, the Board of County Commissioners of Levy County, Florida, passed a resolution stating that an extremely dangerous situation existed at Fannin Springs because of boaters encroaching upon swimmers. The resolution further stated that application would be made to the Division of Marine Resources of the Department of Natural Resources for the purpose of having Fannin Springs declared a restrictive area pursuant to Section 371.522, Florida Statutes, and having a floating barrier erected at the mouth of the springs to prevent boats from entering the swimming area. (Exhibit 5) On August 22, 1977, the Trust agreed to abide by the provisions of a proposed Department of the Army Corp of Engineers permit to install the barricade at a position across Fannin Springs Run 170 feet from the Suwannee River, subject to providing upland access when the barricade is installed and not charging a fee for the use of the barricade provided upland facilities are not used. (Exhibit 3)
Recommendation That the Department of Environmental Regulation issue a modified permit as set forth above to Fannin Springs Trust to construct a floating barrier in the Fannin Springs area, pursuant to Section 403.813(1)(d), Florida Statutes, and Rule 17-4.29(e), Florida Administrative Code. Done and Entered this 29th day of September, 1977, in Tallahassee, Florida. THOMAS C. OLDHAM Hearing Officer Division of Administrative Hearings 530 Carlton Building Tallahassee, Florida 32304 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 29th day of September, 1977. COPIES FURNISHED: Segundo J. Fernandez, Esquire Assistant General Counsel Department of Environmental Regulation 2562 Executive Center Circle, East Montgomery Building Tallahassee, Florida 32301 William D. Ryals, Esquire Post Office Drawer J Gainesville, Florida 32602 Mrs. Thomas Berry 8375 35th Avenue, North St. Petersburg, Florida 33710 Ms. Julia Bancroft 1414 Cleveland Street Apartment No. 1 Clearwater, Florida 33515 Appendix A List of Public Witnesses Name Address Bruce W. Dilger Suwannee River on U.S. 19 Camp Ground Old Town, Florida 32600 Mrs. Carl Shifflette Executive Vice President Suwannee River Citizens Assoc. Bell, Florida Peggy Seykora Route 3, Box 35 Old Town, Florida 32680 A.D. Andrews Post Office Box 1126 Chiefland, Florida 32626 Wayne C. Locke Post Office Box 147 Chiefland, Florida Fred Judy Route 3 Old Town, Florida
Findings Of Fact On December 12, 1991, Petitioner applied to the Respondent for a permit/water quality certification to grade and level, in stages, approximately 20,000 square feet or 0.45 acres of lake front to remove and prevent the formation of berms and depressions in the exposed lake bottom adjacent to his property. The project site is located at 3955 Placid View Drive which lies along the shoreline of Lake Placid, a natural waterbody in Highlands County, Section 24, Township 37 South, Range 29 East. Lake Placid is not an aquatic preserve, and is not an outstanding Florida water. It has been designated as a Class III waterbody. Petitioner's unsubdivided lot lies at the western end of Lake Placid. The shoreline measures approximately 203 feet. The western lot line also measures 203 feet, and fronts on Placid View Drive. The water level of Lake Placid has receded in recent years which allows large expanses of what was historically lake bottom to become beaches, lawns, and areas of habaceous marsh. The specific project which the Petitioner proposes calls for the leveling of the berms and depressions which form on the exposed lake bottom from collected water, which stagnates and permits various noxious creatures, including mosquitoes, to breed in them. The berms and depressions are approximately six inches high or deep and between one and three feet wide, and generally extend the length of the shoreline. The proposed area affected is approximately 20,000 square feet or 0.45 acres of lake front, although Petitioner proposes to actually level a much smaller area in stages of approximately 2,000 square feet on an "as needed" basis. No material other than sod in the beach area is proposed to be brought from or removed to off-site locations. Petitioner is highly sensitive to mosquito bites. The area proposed for leveling was previously cleared of vegetation without authorization. Very little revegetation of the shoreline has occurred since the area was cleared. Vegetation colonizing the beach, at present, includes pennyworts (Centella asiatica and Hydrocotyle umbellata) and water- hyssops (Bacopa sp.) Blue green algae was observed in the depressions which have formed along the shore since the clearing. Fauna observed on-site included gulls (Larus sp.), small fish in the adjacent lake shallows, and water-boatmen (Order Hemiptera) in the depressions. An area landward of the wetlands considered here was also cleared previously and is proposed to be seeded. An adjacent, uncleared shoreline was vegetated with primrose willow (Ludwigia sp.), cattail (Typha sp.), flat sedge (Cyperus odorata), and other wetland species for an almost 100% plant coverage. The Petitioner proposes to use a small tractor in leveling of the shore which will cause turbidity in the lake water. No turbidity controls were proposed by the Petitioner. Petitioner failed to provide reasonable assurances that the turbidity caused by the earthmoving equipment in areas presently above water would not cause degradation of water quality in Lake Placid; would not contribute to the long-term degradation of water quality in the lake caused by upland runoff that would flow into the lake without benefit of retention or filtration by shoreland vegetation (freshwater herbaceous habitat) which would be permanently removed under Petitioner's proposal. Nutrients such a nitrogen and phosphorus and pollutants such as pesticides, herbicides and other chemicals commonly used in lawn and garden care would be included in the runoff, and would have an adverse impact on fishing and marine productivity in the lake. The project would have a minor adverse impact on erosion and soil stabilization in the area surrounding the lake. Petitioner has failed to provide reasonable assurance that the proposed project is not contrary to the public interest. Petitioner can mitigate the project by eliminating the use of heavy equipment and substitute hand equipment to smooth out ruts, berms and depressions in jurisdictional areas.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Petitioner's application for Wetland Resource Regulation permit be DENIED. DONE and ENTERED this 8th day of March, 1993, in Tallahassee, Florida. DANIEL M. KILBRIDE 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 ths 8th day of March, 1993. COPIES FURNISHED: Francine M. Ffolkes, Esquire Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32399-2400 Mr. Vincent J. Woeppel 3955 Placid View Drive Lake Placid, Florida 33852 Daniel H. Thompson Department of Environmental Regulation Acting General Counsel Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32399-2400 Virginia B. Wetherell Secretary Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32399-2400
