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SAVE OUR BAYS, AIR AND CANALS, INC. vs DEPARTMENT OF ENVIRONMENTAL PROTECTION, 01-001463RP (2001)

Division of Administrative Hearings, Florida Filed:Tallahassee, Florida Apr. 13, 2001 Number: 01-001463RP Latest Update: Jun. 06, 2003

The Issue Whether proposed Rule Chapter 62-303, Florida Administrative Code, which describes how the Department of Environmental Protection will exercise its authority under Section 403.067, Florida Statutes, to identify and list those surface waters in the state that are impaired for purposes of the state's total maximum daily load (commonly referred to as "TMDL") program, is an "invalid exercise of delegated legislative authority," within the meaning of Chapter 120, Florida Statutes, for the reasons asserted by Petitioners.

USC (2) 33 U.S.C 1251, 33 U.S.C 1313 CFR (4) 40 CFR 122.41, 40 CFR 130, 40 CFR 130.7(b), 40 CFR 130.7(b)(5) Florida Laws (24) 119.07, 119.15, 120.52, 120.536, 120.54, 120.56, 120.569, 120.57, 120.68, 216.311, 373.309, 373.414, 373.4145, 373.4592, 403.021, 403.031, 403.061, 403.062, 403.067, 403.086, 403.0885, 403.804, 403.805, 934.02

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PORT-O-PALMS CONDOMINIUM B., INC.; ET AL. vs. TAVERNIER HARBOR, INC., AND DEPARTMENT OF ENVIRONMENTAL REGULATION, 86-002057 (1986)

Division of Administrative Hearings, Florida Number: 86-002057 Latest Update: Jun. 29, 1987

Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is, therefore RECOMMENDED that the application of Tavernier Harbor, Inc. for the dredge and fill permit sub judice be granted, provided that the terms and conditions enumerated in the above Findings of Fact are incorporated in the permit as mandatory conditions. DONE and ORDERED this 29th of June, 1987, in Tallahassee, Florida. P. MICHAEL RUFF Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 29th day of June, 1987. APPENDIX TO RECOMMENDED ORDER, CASE NO. 86-2057 Petitioner's Proposed Findings of Fact: 1-3. Accepted. Rejected as contrary to the greater weight of the evidence. Accepted as to the first two sentences but not as dispositive of the material issues presented. Accepted except for the first and last sentences which are contrary to the preponderant evidence. Rejected as to its material import. Rejected as contrary to the preponderant evidence and as subordinate to the Hearing Officer's finding on this subject matter. Rejected as contrary to the greater weight of the evidence. Rejected as not dispositive of the material issues presented. Rejected as contrary to the greater weight of the evidence. Rejected as not dispositive of the material issues presented. Respondent Tavernier Harbor, Inc.'s Proposed Findings of Fact: 1-5. Accepted. 6. Rejected as subordinate to Hearing Officer's findings. 7-13. Accepted. 14. Rejected as subordinate to Hearing Officer's findings. 15-20. Accepted. 21. Rejected as subordinate to Hearing Officer's findings. 22-23. Accepted. Respondent Department's Proposed Findings of Fact: 1. Rejected as subordinate to Hearing Officer's findings. 2-30. Accepted. COPIES FURNISHED: James T. Hendrick, Esquire MORGAN & HENDRICK, P.A. 317 Whitehead Street Key West, Florida 33040 H. Ray Allen, Esquire 618 Whitehead Street Key West, Florida 33040 Douglas H. MacLaughlin, Esquire Department of Environmental Regulation 2600 Blairstone Road Tallahassee, Florida 32399-2400 Dale Twachtmann, Secretary Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32399-2400 Daniel H. Thompson, Esquire General Counsel Department of Environmental Regulation 2600 Blairstone Road Tallahassee, Florida 32399-2400

Florida Laws (5) 120.56, 120.57, 380.0552, 403.061, 403.087

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ARMAND J. HOULE vs. DEPARTMENT OF ENVIRONMENTAL REGULATION, 87-001469 (1987)

Division of Administrative Hearings, Florida Number: 87-001469 Latest Update: Apr. 29, 1988

Findings Of Fact In September, 1985, Armand J. Houle purchased an 80 acre tract located eight miles east of the Naples toll booth on State Road 84 and approximately two miles north of Alligator Alley. The purpose of buying the property was to mine the limestone rock thereon, through a borrow pit, for the purpose of selling it as road base to the State of Florida Department of Transportation for use in the construction of 1-75 (Alligator Alley extending from Naples to the Florida east coast). While no contract has existed or currently exists, correspondence between the Department of Transportation and counsel for the Petitioner indicates that approximately 800,000 cubic yards of fill will be required in the immediate area and that Petitioner's proposed borrow pit would be the ideal source of this rock. Prior to making the purchase, Mr. Houle's associate, Raymond Chester, contacted both the Department of Transportation concerning the potential use of the rock and representatives of the Department of Environmental Regulation. The response he received from these agencies led him to, believe that a borrow pit might well be permitted and the effort should be pursued. After Mr. Chester and Mr. Houle became partners in the property, they contacted county officials and received zoning and other local permits for the facility. It was only after this, when DER was approached again that the applicants were advised a permit would not be issued. Mr. Houle agrees that, if the permits as requested were granted, he would accept a prohibition against further development of the property after removal of the rock and fill, would allow access to the restored lakes to the public for fishing and recreation; would agree to an appropriate restoration plan for the site; and would ensure compliance with the restoration plan stipulated by the Department. After the property was purchased in late 1985, Mr. Houle approached Daniel W. Brundage, the vice-president of an engineering firm in Naples, with a view toward developing the property in question as a borrow pit. Plans were developed for application for permits with the County and Mr. Brundage, consistent therewith, visited the site on several occasions. He found some vegetation off from the site which could be related to wetlands and contacted a representative of DER with whom he went to the site to look it over. This agency representative, Mr. Beever, concluded that the property was a jurisdictional wetland. Mr. Brundage nonetheless felt confident enough to begin work with the County to secure a permit to convert this land, classified as agricultural, to mining property. Consistent with his efforts, the request for conversion went through a four step process on the way to the County Commission which included approval by (1) the Water Management Advisory Board, (2) the Environmental Advisory Council which recommended same changes accepted by the Petitioner, (3) the Subdivision Review Committee, and (4) the Coastal Area Planning Council. All four subagencies recommended approval and thereafter the County granted its permit for work to begin. Assuming all permits are issued, the property will be developed in two stages. In stage one the site will be cleared of vegetation, and the top soil on Phase I, the western 40 acre parcel, removed and used to construct a berm around the entire perimeter of the site as well as between the two 40 acre parcels. The berm will be entirely within property boundaries and used to isolate any water removed from the active phase within the site so that it does not flow onto adjoining property. The eastern 40 acre tract, (Stage II) will be used for water storage during the excavation of Stage 1. It is anticipated that no water will leave the site during construction of either stage with the exception of extraordinary waterfall during rainfall or hurricane. Before any water is discharged, it will go into a storage configuration so that any sediment therein would settle to the bottom before discharge. The discharged water will be filtered through hay bales or filter screens to avoid any turbidity in the surrounding water. The design of this holding capacity in the filter system is sufficient to accommodate the water of a 25 year storm. As Stage I is completed, Stage II will be opened, and the ground water from Stage II pumped back to Stage I for storage. A similar storage and filtration system will be utilized around Stage I. Primary access to the property will be along the western boundary of 8 Mile Canal, but if this is not allowed, Petitioner proposes to build a single span bridge across the 8 Mile Canal at 40th Street to allow access to the property. After the lime rock has been excavated, the berm will be removed and the side of the property graded to form the banks of a 56 acre lake for recreational purposes. The edge of the lake will be a meandering slope at a ratio of 10:1 which will be assured by survey to be in compliance with the County plan. The lake, which will have a maximum depth of 20 feet, will be excavated at a depth ratio of 2:1 from the edge of the slope to the bottom of the lake. During excavation and prior to restoration, heavy equipment will be used for the removal of the rock such as drag lines, back hoes, motor graders, and bulldozers and an area within the boundaries of the site will be isolated and set up for fueling and maintenance. It will be floored with a membrane to prohibit oil and fuel from getting into the ground as a result of accidental spills. Storage tanks for fuel and oil will be above ground and available for immediate inspection. Waste facilities will be in the form of porta-potties and any water falling in this maintenance area will be drained to a low sump within the membraned area for storage until evaporation or safe removal. In the event of a heavy rainfall, water can be stored and anti-sedimented and cleaned and, if necessary, operations can be temporarily stopped. Mr. Brundage indicates that he has never seen any standing water on the site during his five visits nor has any standing water ever been reported to him. He is aware of no historical or archaeological sites on the property, and at no point would rock be mined within 50 feet of the property line. Dr. Durbin Tabb, a botanist, was retained by the Petitioner to prepare a plan for restoration of the site after mining operations were complete. In preparing his plan, he visited the site on several occasions finding varying plant life, much of which was grasses and rushes. In the north was a pine lowland where he saw palmettos scattered in the grassland as well as a few dwarf cypress trees. He also observed a small cluster of cabbage palms in the southern portion of the eastern tract and noted that the currently existing berm along the eastern boundary of the eastern tract is currently being invaded by exotic plant life including the Brazilian pepper. Dr. Tabb found little evidence of recent surface water accumulation; mollusk residue showed no evidence of recent viability; and he found no crawfish burrows which, if present, would show a water table near the surface. Other visitors to the site, however, did find crawfish burrows. The marsh soil shows that, at some time in the past, it was wet enough to support a soil-forming community. This is no longer' the case according to, Dr. Tabb. The process was stopped by the formulation of the Golden Gate Canal System in the 1960's. The existing marsh does, however', hold sufficient water to support the growth of muhli grass. Dr. Tabb's restoration plan is his best estimate of how the property can be restored to its previous condition by replanting native species found in the area. The program will include littoral zone vegetation to provide shelter and a feeding zone along the water's edge which does not now exist. The plan calls for the saying of the marsh soil. Since neither DER nor the client responded to his plan, when submitted, with any suggestions or corrections, he assumed it was approved. Dr. Tabb, who is also an expert in estuarian biology and zoology, concluded that the area on which this site is located is a very poor habitat for deer and panther. The red cockaded woodpecker has no trees on the property which it specifically desires and the property is a poor or nonexistent habitat for the indigo snake and the Everglades snake. It might, however, constitute a habitat for the Cape Sable seaside sparrow, but this bird has never been seen in this inland area. Panthers cross the area as do bears, but the presence of the excavated lake would be no more hindrance to them in their crossing than would the presence of Alligator Alley and the proposed 1-75. The area with sawgrass and muhli grass, which is dominant throughout the Golden Gate area, is called a "dry prairie" as opposed to a "wet prairie." While some of the same plants exist, it is somewhat different in that there are no viable wetlands wildlife organisms currently existing on the property. In Dr. Tabb's opinion, the property has lost its wetlands characteristics and only the marsh soil's water retention permits the life of the grasses currently existing. Wading birds would use the site later but do not currently utilize the area where excavation would take place. In Dr. Tabb's restoration plan, the slope to the lake would be replanted with saw and muhli grasses down to the litoral zone. From there on to the water, a palette of normal wet grasses would be planted to serve as feeding sites and roasting sites for the birds. In addition, an island planted with willows would be constructed off shore in the lake. Deer currently visit the area. They are not currently supported on the land though Mr. Barnett, of the Game and Fresh Water Fish Commission, indicated that they come out of the pine flats at night to feed on the grasses on the prairie. These deer form a large portion of the food chain for the panther, and Dr. Tabb does not consider it conceivable that the project, replanted and restored, would in any way adversely impact the Florida panther or the birds in issue here. In Dr. Tabb's opinion, it is questionable whether the site comes under the jurisdiction of DER based on the grasses present because he cannot find the water connection to confer jurisdiction. Dr. Tabb has not seen standing water on the site as he has seen on two other sites within the area where DER has granted permits for rock pits. On a site like this, the vegetation changes with the seasons. This site is not now connected to the canal along Alligator Alley by vegetation. There may have been a vegetation connection in the past, but as one goes up toward the site from the canal, the grass changes gradually from low pineland grasses found on higher ground to the lower sawgrasses found on the site in question. In Dr. Tabb's opinion, if Mr. Houle's property is to be considered a wetland, it is a transitional wetland. Turning to the issue of loss of habitat, if one assumes that portion of the property that will be converted to a lake will be denied to the panther, this is not the case for the deer which, in this area, is considered to be aquatic. Any denial of the lake area would constitute a very small negative impact compared to what is going on in other areas of Collier County. Admitting that there is a requirement to consider the cumulative impact of a project, in Dr. Tabb's opinion, this project would constitute a "may impact" situation. There is no definitive evidence as to what would happen, and he would be more concerned if the area were now a good panther habitat. It is not, however, and in fact it is no more than a habitat for the grasses which grow there. As to the wetlands issue, the only sign of exotic plant invasion is in the disturbed area around the canal which was installed approximately 18 years ago. The absence of these exotic species is, in Dr. Tabb's opinion, a clear indication that there is no flowing or standing water since the site is too dry for the germination of the seeds. There will be some removal of the biomass by the excavation of the lake. This biomass, consisting of grass primarily, is consumed by fire every year or so and insects eat it as well. Admittedly, some of the biomass is being eaten by animals of some nature and that which is converted to a lake will be removed. There is a trade-off, however. Dr. Martin Roessler, a marine biologist, prepared a report, on the water quality of the adjacent 8 Mile Canal, and other water bodies in the area. In preparation of his report, he took water samples in the areas in question, read literature on the water quality in the area, and looked at water quality data provided by U.S. government agencies and private companies. On the several visits he made to the site, he has not seen any surface water. The first time he could get water only in the adjacent canal, and he also got some water from the land borings done by Dr. Missimer on the site. Dr. Roessler is familiar with State standards for water quality and, in his opinion, the turbidity standards would not be disturbed because there was no water on the ground to be sheet flow. All water was at least three feet underground and, in addition, Petitioner has agreed to properly sod or otherwise treat the berms he will build to prevent erosion and any resultant turbidity either off-site or in the 8 Mile Canal. Dr. Roessler also does not believe the project would violate the oil and grease standards. There is nothing inherent in the mining process to bring into play oils and greases except for the possible problem in refueling and maintenance operations. In that regard, Petitioner has shown how he will provide against that by placing a membrane to prevent any oil, grease or other contaminant from getting into the ground. This area does not contain the organic mulch which produces natural oils and greases. The water near the surface of the lake will contain sufficient dissolved oxygen to meet State standards without problem. In the summer months when the dissolved oxygen count is low, generally, the lake bottom water may not meet State standards, but that happens quite frequently, naturally, across the entire area. Dr. Roessler believes that the dissolved oxygen requirements of 2.5 at the surface and .5 at the bottom will most likely be met in the lake created by this project. Concerning the biochemical oxygen demand (BOD), he concludes the operation in the quarry will not artificially decrease the available oxygen below the required amount. The BOD demand in this area would not be threatened by the lake. As to the iron standard and other toxic substances, Dr. Roessler does not believe that the project will create a violation of the standard nor will any runoff increase dissolved iron in adjacent waters. Hydrogen sulfide and pharasulfide standards will similarly not be violated. Sulfides are found only in trace amounts, if at all, in natural waters. In deep limestone lakes the chemical structure is not conducive to the formation of the acidic compounds. In short, Dr. Roessler believes the water in the mine would be very similar to that found in other rock quarries in the area. These lakes are a dominant portion of the recreational fresh water fishing availability. This instant lake also will, in time, upon development of the food chain for the fish, become an equivalent fishing habitat. Dr. Roessler concurs with Dr. Tabb regarding the flora on the site, which he observed himself. This site is 15 to 18 miles from marine or estuarian waters and to reach them one would have to go down a series of canals and past a saline dam to the coast. Any runoff from the site in question would have, if any, a minuscule effect on marine waters. This site was originally a wet prairie which was drained by the Golden Gate Canal System. As such it is a relatively poor habitat for life forms generally found in cypress wetlands. Creation of this lake will, in the opinion of Dr. Roessler, enhance the game, fish, and recreational activity of the area. It would be a benefit to the animal population to have a water source for drinking during drought. There would be no adverse effect on public health, safety or welfare. Turning to the major issue of water, Dr. Thomas Missimer, a hydrogeologist specializing in ground water, visited the site, examining the canal on the east side, and the soils and rocks exposed. He took soil borings and examined the site hydrology to see what fluctuations occurred in the water levels due to rainfall. Mr. Missimer, took numerous readings from September 18 through November 5, 1987 during a period of wet weather including a tropical storm. He carefully compared the site geology to other sites he had studied and compared the flow of water through the soil. He compiled existing information on chemistry in the streams in the area to see what the natural conditions were. He looked at other man-made lakes in the area which were previously borrow pits. As a result of his studies, he concluded that the groundwater level throughout the entire period never got higher than three feet below the land's surface and often was five feet below. During the previous July through September, 34 inches of rain fell in the area which was, in his opinion, average to above average. There is some evidence, however, to indicate that rainfall in the area was approximately 33 percent below average during the period. Nonetheless, Mr. Missimer took a measurement the day after a tropical storm had deposited three inches of water on the land. The water level at that time was still three feet below land level, and there was no standing water. Both the three foot and the five foot level are well below the top of the berm sloped at 10:1 as is proposed in the restoration plan submitted by Dr. Tabb. This site has, from a hydrological standpoint, been greatly affected by the installation, of the 8 Mile Canal and the canal system to the north. As, a result of this activity, standing water has not existed for many, years since the dredging of those canals. If de-watering is a necessary portion of the mining plan, any waters removed thereby would be retained in the impoundment area described by Mr. Brundage and switched back and forth. As proposed, the plan can completely avoid any impact to off-site property by water runoff. Construction of the pit and the lowering of the water level thereby will not have a major impact on the groundwater in the surrounding areas. Any effect would taper off as the distance increased from the site and would be of little significance. This proposal would also have little, if any, impact on groundwater quality. In Mr. Missimer's opinion, water quality is currently good and will stay good. This type of rock mine is very common in the area incident to construction. Some have been used as a source of potable water by The City of Naples; by Deltona Utility Company for Marco Island; and the south area of the County. These resources are still being used. There is little difference between those currently being used as potable water sources and the proposed lake here. Mr. Missimer also indicates the project will have little impact on the sheet flow of water. Sheet flow no longer exists here because of the canals and roads already existing. If there were a sheet flow created by a very heavy rain, this pit would have no impact on it. The water level in the lake will be approximately the same as exists in the ground currently and in the 8 Mile Canal. There should be no shoaling in the canal due to the project, and the presently existing spoil bank on the west side of the canal already prevents flow into the, canal from this land. If this pit is properly constituted and maintained, and if proper mining procedures are followed there should be no effect on the 8 Mile Canal to the east or the Alligator Alley Canal to the south. There is no surface water connection currently existing between this site and either canal. As to the issue of dissolved oxygen, the currently existing groundwater on the site and in the surrounding area has little or no dissolved oxygen in it. Water coming into the lake will be groundwater low in dissolved oxygen, which is identical to the water which currently goes into the canal system. The canal gets very little oxygen from the wind because it is so narrow. The lakes to be constructed, on the other hand, will get a large amount of oxygen from the 56 acres of water exposed to the open air. Consequently, construction of the lakes would increase the dissolved oxygen content of the water in the area, at least in the lakes, down to a level of several feet. This is a positive factor. Mr. Missimer recognizes, however, that during the dry seasons, when the lake is fed solely by groundwater generally low in dissolved oxygen, the lake water which has been converted to surface water may fail to meet the Department's surface water standards for dissolved oxygen. Warmer weather generally results in lower dissolved oxygen readings and, admittedly, Respondent's readings were taken in December when the dissolved oxygen levels are higher. As a result, the comparative samples which were taken in December are not necessarily indicative of what will be the situation in the lake, year- round. Respondent's witnesses present a more dismal picture of the effect of Petitioner's proposed project. Mr. Bickner, an Environmental Supervisor with DER's Bureau of Permits and himself an expert in water quality, zoology, and ecosystem biology, first became involved with this project while the permit request was being processed in late 1986. This application was a standard form project because of the quantity of material to be excavated. As a part of his processing, Mr. Bickner requested evaluations of the project from other agencies and divisions within DER and, on the basis of his personal evaluation and the recommendations he received, concluded that the application was not permittable. He recommended it be denied. Mr. Bickner considered Petitioner's application under the provisions of Chapter 403.918, Florida Statutes, which requires a two step evaluation. In the first step, the project must be determined to meet water quality standards. If it does, as a second stage, the project must be determined not to be contrary to the public interest. The major water quality standard in issue here was that of dissolved oxygen along with that concerning BOD and other deleterious substances. The water body involved was classified as a Class III Water under the provisions of Rule 17-3.121, Florida Administrative Code, since it was designed to be a recreational, fish and wildlife habitat. The standards contained in the statute and the rule relate to surface water as opposed to groundwater and, as to the public interest question, Chapter 403 provides a list of seven factors which must be evaluated. In this determination the agency has wide latitude and no one factor is controlling. In evaluation, agency personnel try to look at the project overall. Specifically, the project cannot cause or contribute to an existing water quality violation. In evaluation, agency personnel do not look at the project by itself. They must keep in mind that other projects exist or are proposed for the area. This is known as the cumulative impact of the project which is provided for in Section 403.919, Florida Statutes. As to the variance requested, this is also provided for by statute. The criteria require that the petition be based on some specific ground. In the instant case, the ground utilized by Petitioner was that there was no alternative to the dissolved oxygen level proposed. Granting of a variance is totally within the discretion of the Department even if Petitioner can show grounds therefor. Mr. Bickner was at the site only once. He approached from the south. At the low end of the approach was a mixture of wetlands and upland vegetation, but as he got toward the site the upland species dropped off and only the wetland species only remained. These were primarily sawgrass, cattails, and the like. He was satisfied that there was no obvious break in jurisdiction, and the testimony of Mr. Beever confirmed that jurisdiction over the site was gained through the wetlands character of the property from the site down to the Alligator Alley Canal, which is considered a water of the state. The site consists primarily of sawgrass and muhli grass with minor amounts of other grasses. The site seems to rise toward the 8 Mile Canal where there is an invasion of Brazilian peppers and other exotic species. Mr. Bickner was looking for upland species and found only one specimen of one species, a few of another, and no invasion of slash pine on the site at all. As a result, he concluded that the site was not an upland site. There was no standing water on the site at the time Mr. Bickner visited it, but the soil was wet to the surface. In addition, there was a large number of recently dead shells in low spots which had held water. There were some tracks of a large animal and a large number of smaller animal tracks and scats (scats are animal droppings). He also saw some birds which were too far away to identify and observed what he thought were crayfish tunnels near the cypress trees. Mr. Bickner found evidence of dried periphyton widely scattered over the site. Periphyton, an algae which attaches itself to other plants and which in times of inundation, forms sheets across the water connecting one plant to another, is a sign of previous inundation. The other plants on the site were not showing water deprivation stress, and there was no evidence of upland species invasion. All of this leads Mr. Bickner to conclude that the area has plenty of water and this opinion was enhanced by the lushness of the plants' growth. This, along with the high diversity of plant life, indicated to him a healthy ecosystem. To Mr. Bikner, the fact that the area was not currently inundated is not significant. In this particular area there are wet and dry seasons and, even in the dry season such as existed at the time of his visit, the soil was wet. The signs he saw indicated to him there has to be standing water on the site at some time. His visit was in January, which is well within the dry season. As to water quality, Mr. Bickner does not believe that the water quality standards will not be violated. In fact, by the nature of the project, Petitioner has, in Mr. Bickner's opinion, assured that it will be violated. A 20 foot deep pit must, in his opinion, result in low levels of dissolved oxygen below standards. Any water below seven foot in depth has little dissolved oxygen. Most dissolved oxygen is in the surface water, and there is little exchange between deep and surface waters. As a result, he concludes that the groundwater has low dissolved oxygen, a fact confirmed by Mr. Missimer. Dissolved oxygen is the only source of oxygen for fish and aquatic animals. Without dissolved oxygen, the fish die. There are currently no fish on the property. Mr. Bickner was also concerned with the biochemical oxygen demand which would further reduce the oxygen levels in the water. He was further concerned with the hydrogen sulfide levels coming from deterioration of plant material in the bottom of the pit, and iron which he found to be already in the groundwater. Mr. Bickner contends that during construction of the pit petro- chemicals will be introduced into the water, and that during the construction period the on-site water will have increased turbidity which will most likely be transmitted off-site as the pit is de-watered. There are management procedures which can reduce the risk, but none can avoid it entirely. Mr. Bickner is satisfied that the water quality standards will not be met. It is so found. Mr. Bickner also evaluated the property from the public interest standpoint, and in that regard he is satisfied there is a substantial potential for damage to adjacent properties by de-watering. Based on his experience and observation of other projects, he is satisfied there is no way to keep people employed on the site from using adjacent property for parking and vehicle maintenance. The witness believes that the 56 acres of habitat removed by the lake, and the remaining acres, which will be replanted, will be permanently impacted. While he admits that the property as it currently exists, may not be a prime habitat for the panther, there is some evidence which indicates panthers do cross it. He is concerned that the applicants submission here does not sufficiently answer all the questions as to impact on the public interest. The mechanics of the maintenance yard, soil storage and other potential areas of trauma are not explained satisfactorily, and Mr. Bickner does not see how all that is proposed can fit on the site. As a result, in his opinion, there must be some off-site impact. As to cumulative impact, since the valuable rock does not lie only under Petitioner's property, owners of the surrounding property may want to mine their properties as Petitioner proposes to do. If that happens, Mr. Bickner cannot explain how the Department can deny these subsequent applications. If the current application is permitted, taken together with the others, there would be a serious effect on the panther population. This opinion is not supported by evidence, however. If the public interest test is the only basis for disqualification of the project, (here the water quality test is also not met) a permit can still be granted if the applicant agrees to take appropriate mitigation steps at the site. Mr. Bickner is of the opinion that the applicant's mitigation plan to create the 100 foot wide shelf around the lake is not the same type of system which currently exists, will not fulfill the same function as the present property, and is not sufficiently large to replace what is being lost. One basis for granting the variance suggested by the Petitioner was the public interest, (the material was to be used for a public road), and the other was that there was no alternative way to get the material. While it is possible the rock would be used for public road, Mr. Bickner was concerned no assurances were given by the Petitioner that it would be. No contract has been signed yet, and Mr. Bickner is not satisfied that the letter from the Department of Transportation, indicating the rock there would suit its purpose, is sufficient indication that a contract would be signed. There is a possibility of making the pit shallower, which would permit the dissolved oxygen content of the lake water to meet state standards, but even if that problem were solved, Mr. Bickner is not satisfied that Petitioner has met the public interest test. Respondent has granted three permits and a variance to the Department of Transportation to build a portion of I-75 across Alligator Alley in Collier County. These permits are for the dredging of canals parallel to the roadway and to develop a borrow lake of 73.1 acres to be excavated to a depth of from 6 to 9.7 feet. The variance in question applies to all three projects and relates to the dissolved oxygen level. The DOT variance was applied for on the basis that no practical means for avoidance of the pollution existed. The Department of Transportation did not request a variance for BOD or for toxic and deleterious substances or iron. Mr. Bickner, admitted that these permitted projects would possibly have the same problem of oils and greases as he foresees with Petitioner's project. Nonetheless, he concludes that Petitioner's project should not be permitted, even though the Alligator Alley canals are already below standards, because to do so would contribute to a currently existing violation. Mr. James Beever, an Environmental Specialist with the Department of, Environmental Regulation, visited the site on several occasions, both on the ground and from the air. He observed much of the same flora and fauna observed by the other visitors who testified in this case and took color photographs of the area which portray the character of the property. All of the plants he discovered on the site are on the DER jurisdictional list and, on at least one occasion, from the air, he saw standing water on the site. In his opinion, the property is a fresh water wet prairie system which is admittedly drier than it should be. The plants he saw on the site indicate the jurisdiction of DER if there is a connection to other waters of the state, and in Mr. Beever's opinion, there is connection through the flow of sheet water south from the site to the I-75 (Alligator Alley) canal; then, east to the 8 Mile Canal; then south to the Fuqua Union Canal which empties southwest to the Gulf of Mexico. In his opinion, therefore, this is definitely jurisdictional land, and it is so found. The site supports an underground system of roots as well as the upper portion of the, plants existing thereon. He observed periphyton and many other animal tracks and scats. He also saw signs of regular inundation such as numerous snail shells, and he is satisfied there is no indication of a change in the area from the wetlands to an upland area. Admittedly, the area has been dry for a while. Even after Hurricane Floyd in 1987, there was no standing water. The site is, in his opinion, definitely productive, however. The vegetation existing thereon stabilizes the soil and provides food for snails, insects and crayfish which are on the bottom of the foodchain for other life forms on the property. The grasses provide a habitat for animals such as cotton rats, roosts for birds, pollen for insects, all which, themselves, become food for the larger animals. This wetland is a part of a large wetland prairie system and part of the Fuqua Union drainage basin, and acts as a filter for the water system for the area. According to Mr. Beever, most borrow pits like this are located on uplands which then provide rain water lakes. The instant pit, however, is in a wetlands area and if built, he believes, will engender violations during the mining operation. Groundwater coming in will contain iron and hydrogen sulfide which will combine with the dissolved oxygen in the water and further deplete the already low oxygen levels. All of this will constitute a violation of the rules regarding waters of the state since the waters within the pit would fall within that category. Mr. Beever is also concerned with the `bridge over the 8 Mile Canal and the turbidity connected with its construction and removal. In substance, Mr. Beever is convinced that construction of the project will create violations of the water quality standards for the area. As to the public interest, the wetlands character of the site will be completely lost. The vegetation will be removed, and the animals utilizing it will either leave or be destroyed. After, construction, some natural healing will occur, but a long-term maintenance program will be required to provide even different functions for the land than those which currently exist. In that regard, Mr. Beever is convinced that the applicant's proposed restoration plan is not acceptable. It will not replace the lost functions of the site; it will replace the species removed with a different ecosystem; it will provide a habitat for different species of animals and birds; it will adversely affect the shoaling and erosion in the lake itself (this is found to be without merit); it will have some adverse effect on the property of others; and will have an adverse cumulative impact on the area. The habitat will not be used any more by endangered species such as the wood stork and the panther. Even assuming, arguendo, the plans were suitable, in Mr. Beever's opinion, the project would not work here because of the lack of information on what the actual water level of the lake will be. The plant species proposed may not remain because of possible changes in water level in the lake. In addition, the marl berms will dry out over the three years of their life while the pit is being worked, and form a location for a lot of invasive upland plants. Much of Mr. Beever's concern is shared by Mr. Barnett, of the Game and Fresh Water Fish Commission, who indicated that birds now frequently use the area for nesting and feeding because of its wetlands character. Endangered species such as the Florida panther cross it from time to time as does the Florida black bear. Human encroachment reduces the panther's territory and reduces the area for forage of deer, which are the principal food of the panther. The bigger issue, however, is the cumulative impact. The 80 acres is not so important by itself, but to permit its removal would set a precedent for future encroachment by others. Mr. Barnett's experience is that restoration plans are quite often not successful. Even the successful ones, however, replace the removed system with a different system, and the species which now use the property would find it much less desirable as changed. Specifically, the bear, the deer, and the panther would find it unusable as proposed. At the present time, the deer spend their days in the pines forest to the north of the property, coming out onto the area, in question only at night to feed. It is during the night that the panther stalks. As presently constituted, this property is of no benefit to the wood stork or the red cockaded woodpecker. The Cape Sable sparrow could use it but does not. The development of Golden Gate Estates to the north and east and south of the property has a two pronged effect on the area in question. The southern portion of Golden Gate Estates has been abandoned, but the central and northern portions will be developed. On the one hand, it is likely that the increased population to the north and east will make the Petitioner's property less desirable and make access to it more difficult for the wildlife currently utilizing it. On the other hand, removal of the northern and central portions of Golden Gate from usable area for the panther and other species make it more important that Petitioner's area, which Barnett claims is not likely to be developed, remain as an animal habitat to offset the encroachment of the development area. There is no evidence to support this prediction of non- development, however. History tends to indicate otherwise.

Florida Laws (1) 120.57

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RAYMOND H. HODGES, JR., AND ANNE G. HODGES vs. DEPARTMENT OF ENVIRONMENTAL REGULATION, 81-001088 (1981)

Division of Administrative Hearings, Florida Number: 81-001088 Latest Update: Dec. 01, 1981

Findings Of Fact On August 5, 1980, the Petitioners filed an application for a dredge and fill permit pursuant to Chapters 253 and 403, Florida Statutes, and Chapter 17-4, Florida Administrative Code, as well as for water quality certification pursuant to Chapter 401 of Public Law 92-500, as amended, United States Statutes At Large. On March 20, 1981, the Department gave the Petitioners notice that it intended to deny their application for the permit and notified Petitioners of their right to a hearing pursuant to Sections 120.57, Florida Statutes, which right they chose to exercise. The Petitioners own a tract of land adjacent to and partially within the landward extent of the Suwannee River in Dixie County, Florida. The Department of Environmental Regulation (Department) is an agency of the State of Florida charged with carrying out the mandates of Chapter 403, Florida Statutes, and the rules contained in Chapter 17, Florida Administrative Code, promulgated thereunder. The Petitioners propose to embark on a project involving the dredging of a canal approximately 200 feet long in a generally westerly direction from the navigable portion of the Suwannee River through the river berm into the river swamp or floodplain. Across and perpendicular to the landward end of that access canal the Petitioners propose to construct a boat basin approximately 100 feet wide by 275 feet long in the swamp floodplain. The proposed excavation would be to a depth of 6.25 feet below mean sea level and approximately 9000 cubic yards of fill material would be deposited as-fill in the adjacent swamp floodplain remaining around the boat basin and access canal. A boat ramp would then be constructed into the boat basin. A retaining wall would be constructed around the excavated areas along the north and south property lines of the property owned by the Petitioners. The property to be developed by the Petitioners lies within the landward extent of the Suwannee River in Dixie County and the Suwannee River constitutes waters of the State over which the Department has dredge and fill permitting jurisdiction pursuant to Rule 17- 4.28(2)(a), Florida Administrative Code. The project area lies within an "outstanding Florida water" as defined in Rule 3.041(3)(g), Florida Administrative Code. The river terrace or "berm" on the property immediately adjacent to the navigable portion of the river is caused by the natural deposition of alluvial material. The landward extent of the State waters which are the subject matter of this proceeding cross the property immediately behind this terrace and connect with the navigable portion of the river on an adjacent parcel of property. The proposed dredging operation would connect 37,500 square feet of a dead-end canal system excavated to minus 6.25 feet below mean sea level to the navigable portion of the Suwannee River. The dredging and filling operation would result in the permanent elimination of approximately 2.84 acres of the landward extent of the Suwannee River floodplain which is dominated by plant species listed in Rule 17-4.02(17) , Florida Administrative Code, which define jurisdiction of the Respondent. The proposed dredging and filling will cause and constitute a stationary installation reasonably expected to be a source of pollution. The Petitioners during the course of this application process cleared the subject property at least in part. Prior to that clearing operation, the terrace area was vegetated with bald cypress, blue beech, water hickory and sweet gum, with bald cypress and buttonbush becoming the dominant plant species progressing in a southerly direction along the terrace. Landward of the natural terrace or berm, the cypress-tupelo swamp was dominated by water tupelo, bald cypress, water ash, and buttonbush, all species listed in Rule 17- 402(17), Florida Administrative Code. An additional inspection conducted after the land-clearing operation revealed that the area was again sprouting or revegetating into the same swamp species, with the dominant species being bald cypress. The swamp area in question provides flood protection as well as control of sedimentation by the storing of flood waters and the filtering of sediment and particulates releasing them in a gradual fashion to the river system especially during dry periods when the river level is lower than that of the swamp. This also serves to augment the stream flow in the river itself during such periods. The proposed activity, by removing the trees and other plant species named above, as well as because of the dredging and filling of the swamp floodplain area, would cause degradation of local water quality. The swamp currently contributes to the maintenance of water quality in the navigable river itself by the filtering of sediment and particulates, as well as the assimilating, uptake and transforming of nutrients and other pollutants by the plant species growing on the site. The proposed project would destroy by tree- cutting, and the dredging and filling, this function of the swamp area in controlling pollution and promoting water quality in the river. The river swamp on this parcel of property, as well as on adjacent areas, serves as a habitat, food source and breeding ground for various forms of fish and wildlife. The proposed dredging and accompanying filling of the floodplain area with the associated removal of trees and other plants and increased turbidity would largely eliminate this function on the Petitioners' property and drastically alter the swamp area as a habitat, food source and breeding ground on adjacent areas, particularly downstream of the property. The most notable long-term adverse impact of this project would include excessive turbidity caused by the removal of the subject plant species and the deposition of the fill in the floodplain area. Turbidity would be a special problem during times of excessive rain and high or flood waters in the river and adjacent swamp land. An additional long-term detrimental effect will be excessive nutrient enrichment in the area due to the removal of the filtrative and assimilative functions performed by the trees and other plant life across the entire width of the swamp. As a result the adjacent areas will be unable to fully take up the nutrient load formerly assimilated by the plant life on the project area. The project will thus permanently eradicate the subject area's filtrative and assimilative capacity for nutrients, heavy metals and other pollutants. Because of its physical design and dimensions and tangential exposure to river currents and tidal flow, the proposed canal and boat basin will be characterized by sluggish circulation and will lack sufficient flushing action to maintain water quality at an appropriate level, particularly with regard to dissolved oxygen content. The lack of adequate water exchange or flushing will lead to an accumulation of oxygen-demanding sediment and organic waste in the canal and boat basin. This accumulation results in low-dissolved oxygen content in the water and anerobic conditions, which result in a substantially decreasing ability for the water to support aquatic and other wildlife. The lack of water exchange will lead to an accumulation of nutrients which can result in explosive growth of noxious aquatic weeds. In turn, these weeds grow and decay and contribute through the decay process to the low-dissolved oxygen levels in the canal. Thus, the long-term effects will result in violations of water quality criteria for biochemical oxygen demand, nutrient content and dissolved The cumulative effect of a proliferation of projects such as this one involving dredging of canals and associated filling, as well as filled roads across similar floodplain areas, will cause degradation of local water quality in violation of State standards both singly and in the aggregate. Such a project ultimately alters the hydro-period of the area, which is the average time during which flood waters are retained in the swamp and floodplain area for gradual, filtered release into the river itself. The altered hydro-period will result particularly from the removal of trees and other plant species which perform a filtrative function for flood waters and associated sediment. The removal of the plant life will result in a more rapid flow of waters through the subject swamp area which will prevent sediments from precipitating out of the water before it returns to the navigable river which effect will be heightened by the presence of the turbidity caused by the deposition of the fill material and its exposure to the erosive effect of flood waters. The Petitioners additionally failed to show that the project was necessary in order for them to have access to the navigable portion of the river. The Department advocated prior to and during the hearing that a viable and acceptable alternative would be the construction of a walk-way or a bridge on pilings across the jurisdictional area in question connecting the two upland portions of the Petitioners' property. Although the bridge or walkway would require a permit, the Department took the position that it would not object to such a permit for an elevated wooden walkway and dock into the navigable portion of the river or a bridge for vehicles and an attendant boat ramp. The Petitioners did not agree to such a solution of the controversy. It should also be noted that access is available for the Petitioners to the waterward portion of the property from the navigable side of the river berm by boat. The Petitioners contend they are entitled to a permit by default on the part of the Respondent. The Department received the application on August 5, 1980. Three days later on August 8, 1980, the Respondent requested additional information and informed the Petitioners that they had to present evidence of consent to the use of the State-owned land involved from the Board of Trustees of the Internal Improvement Trust Fund/Department of Natural Resources (DNR). The application was forwarded to the DNR on September 8, 1980. Another copy of the application was forwarded to the DNR on January 8, 1981. A letter from DNR to the Petitioners on approximately March 9, 1981, indicates that the application was held in abeyance pending notification of action by the DER, the Respondent herein. Ultimately, the DNR by letter of March 19, 1981, acknowledged receipt of payment for the subject fill material, but elected not to formally consent or reject the project. It has been the practice of the Respondent Department to await a DNR consent or rejection prior to issuance of its notice of proposed agency action. The Department issued its intent to deny by letter on March 20, 1981, which was 43 days after the Petitioners' last modification of its application on February 5, 1981. Thus, the application was not complete until February 5, 1981, since the Petitioners never furnished the lawfully requested information until that date.

Recommendation Having considered the foregoing-findings of fact, conclusions of law, the candor and demeanor of the witnesses and the pleadings and arguments of counsel, it is therefore RECOMMENDED that the petition of Raymond H. Hodges, Jr., and Anne G. Hodges for a dredge and fill permit be DENIED. DONE AND ENTERED this 16th day of October, 1981, in Tallahassee, Florida. P. MICHAEL RUFF, 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 16th day of October, 1981. COPIES FURNISHED: Raymond H. Hodges, Esquire Post Office Box 1688 Zephyr Hills, Florida 33599 Silvia Morell Alderman, Esquire Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32301

Florida Laws (8) 120.57, 120.60, 253.77, 403.021, 403.031, 403.087, 403.0876, 403.088

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THE SIERRA CLUB vs ST. JOHNS RIVER WATER MANAGEMENT DISTRICT AND HINES INTERESTS LIMITED PARTNERSHIP, 00-002231 (2000)

Division of Administrative Hearings, Florida Filed:St. Augustine, Florida May 26, 2000 Number: 00-002231 Latest Update: Jul. 12, 2004

The Issue The issues to be resolved in this proceedings concern whether Environmental Resource Permit (ERP) No. 4-109-0216-ERP, should be modified to allow construction and operation of a surface water management system (project) related to the construction and operation of single-family homes on "Marshall Creek" (Parcel D) in a manner consistent with the standards for issuance of an ERP in accordance with Rules 40C-4.301 and 40C-4.302, Florida Administrative Code.

Findings Of Fact The Project The project is a 29.9-acre residential development and associated stormwater system in a wetland mitigation area known as "Parcel D." It lies within the much larger Marshall Creek DRI in St. Johns County, Florida, bounded on the northeast by Marshall Creek, on the south and southeast by a previously permitted golf course holes sixteen and seventeen, and on the north by the "Loop Road." The project consists of thirty residential lots of approximately one-half acre in size; a short segment of Loop Road to access Parcel D; an internal road system; expansion of previously permitted Pond N, a wet detention stormwater management pond lying north of the Loop Road and wetland mitigation areas. Approximately 1.15 acres of wetlands are located on the Parcel D site. The project plan calls for filling 0.63 acres of the wetlands for purposes of constructing a road and residential lots for Parcel D. Part of that 0.63-acre impact area, 0.11 acres, is comprised of a 760-foot-long, narrow drainageway, with 0.52 acres of adjacent wetland. Downstream of the fill area, 0.52 acres of higher quality wetland is to be preserved. Hines proposes to preserve 4.5 acres of existing wetland and 2.49 acres of upland, as well as to create .82 acres of forested wetland as mitigation for the proposed impact of the project. Additionally, as part of the project, Hines will implement a nutrient and pesticide management plan. The only pesticides to be used at the project will be approved by the Department of Agriculture for use with soil types prevailing at the site and only pesticides approved by the Environmental Protection Agency may be used on the site. All pesticides to be used on the project site must be selected to minimize impacts to ground and surface water, including having a maximum 70-day half-life. Stormwater Management System The majority of surface runoff from Parcel D will be diverted to a stormwater collection system and thence through drainage pipes and a swale into Phase I of Pond N. After treatment in Pond N, the water will discharge to an upland area adjacent to wetlands associated with Marshall Creek and then flow into Marshall Creek. The system will discharge to Marshall Creek. In addition to the area served by Pond N, a portion of lots fourteen though twenty drain through a vegetated, natural buffer zone and ultimately through the soil into Marshall Creek. Water quality treatment for that stormwater runoff will be achieved by percolating water into the ground and allowing natural soil treatment. The fifty-foot, vegetated, natural buffer is adequate to treat the stormwater runoff to water quality standards for Lots 14, 15 and 20. Lots 16, 17, 18 and 19, will have only a twenty-five foot buffer, so additional measures must be adopted for those lots to require either that the owners of them direct all runoff from the roofs and driveways of houses to be constructed on those lots to the collection system for Pond N or placement of an additional twenty-five foot barrier of xeriscape plants, with all non- vegetated areas being mulched, with no pesticide or fertilizer use. An additional mandatory permit condition, specifying that either of these measures must be employed for Lots 16, 17, 18 and 19, is necessary to ensure that water quality standards will be met. Pond N is a wet detention-type stormwater pond. Wet detention systems function similarly to natural lakes and are permanently wet, with a depth of six to twelve feet. When stormwater enters a wet detention pond it mixes with existing water and physical, chemical and biological processes work to remove the pollutants from the stormwater. Pond N is designed for a twenty-five year, twenty-four- hour storm event (design storm). The pre-development peak rate of discharge from the Pond N drainage area for the design storm event is forty cubic feet per second. The post-development peak rate of discharge for the design storm event will be approximately twenty-eight cubic feet per second. The discharge rate for the less severe, "mean annual storm" would be approximately eleven cubic feet per second, pre-development peak rate and the post-development peak rate of discharge would be approximately five cubic feet per second. Consequently, the post-development peak rate of discharge does not exceed the pre- development peak rate of discharge. Pond N is designed to meet the engineering requirements of Rule 40C-42.026(4), Florida Administrative Code. Because the pond is not designed with a littoral zone, the permanent pool volume has been increased by fifty-percent. Additionally, because Pond N discharges to the Class II waters of Marshall Creek, an additional fifty-percent of treatment volume is included in the pond design. The system design addresses surface water velocity and erosion issues through incorporation of best management practices promulgated by the District to prevent erosion and sedimentation, including; designing side slopes of 4:1; siding and seeding disturbed areas to stabilize soil; and the use of riprap at the outfall from Pond N. During construction, short- term water quality impacts will be addressed through installation of silt fences and hay bales. The majority of the eighteen-acre drainage basin which flows into the Parcel D wetland lies to the south and southwest of Parcel D. In accordance with the prior permit, water from those off-site acres will be intercepted and routed to stormwater ponds serving golf course holes sixteen and seventeen. The system design will prevent adverse impacts to the hydroperiod of remaining on-site and off-site wetlands. The remaining wetlands will be hydrated through groundwater flow. Surface waters will continue to flow to the wetlands adjacent to lots fourteen through twenty because drainage from those lots will be directed across a vegetated, natural buffer to those wetlands. There is no diversion of water from the natural drainage basin, because Pond N discharges to a wetland adjacent to Marshall Creek, slightly upstream from the current discharge point for the wetland which is to be impacted. This ensures that Marshall Creek will continue to receive that fresh-water source. An underground "PVC cut-off wall" will be installed around Pond N to ensure that the pond will not draw down the water table below the wetlands near the pond. Pond N has been designed to treat stormwater prior to discharge, in part to remove turbidity and sedimentation. This means that discharge from the pond will not carry sediment and that the system will not result in shoaling. There will be no septic tanks in the project. The system is a gravity flow system with no mechanical or moving parts. It will be constructed in accordance with standard industry materials readily available and there will be nothing extraordinary about its design or operation. The system is capable of being effectively operated and maintained and the owner of the system will be the Marshall Creek Community Development District (CDD). Water Quality Water entering Pond N will have a residence time of approximately 200 days or about fifteen times higher than the design criteria listed in the below-cited rule. During that time, the treatment and removal process described herein will occur, removing most of the pollutants. Discharge from the pond will enter Marshall Creek, a Class II water body. The discharges must therefore meet Class II water quality numerical and anti-degradation standards. The design for the pond complies with the design criteria for wet detention systems listed in Rule 40C-42.026(4), Florida Administrative Code. In addition to meeting applicable design criteria, the potential discharge will meet water quality standards. The pond will have low levels of nitrogen and phosphorous resulting in low algae production in the pond. The long residence time of the water in the pond will provide an adequate amount of time for pesticides to volatilize or degrade, minimizing the potential for pesticide discharge. Due to the clear characteristics of the water column, neither thermal stratification nor chemical stratification are expected. Periodically, fecal coliform and total coliform levels are exceeded under current, pre-development conditions. These are common natural background conditions. Because the detention time in the pond will be an average of 200 days, and because the life span of fecal coliform bacteria is approximately seven to fourteen days the levels for coliforms in the pond will be very low. Discharges from the pond will enhance water quality of the Class II receiving waters because the levels of fecal coliform and total coliform will be reduced. The discharge will be characterized by approximately 100 micrograms per liter total nitrogen, compared with a background of 250 micrograms per liter presently existing in the receiving waters of Marshall Creek. The discharge will contain approximately three micrograms per liter of phosphorous, compared with sixty-three micrograms per liter presently existing in Marshall Creek. Total suspended solids in the discharge will be less than one-milligram per liter compared with seventy-two milligrams per liter in the present waters of Marshall Creek. Biochemical oxygen demand will be approximately a 0.3 level in the discharge, compared with a level of 2.4 in Marshall Creek. Consequently, the water quality discharging from the pond will be of better quality than the water in Marshall Creek or the water discharging from the wetland today. The pollutant loading in the discharge from the stormwater management system will have water quality values several times lower than pre-development discharges from the same site. Comparison of pre-development and post-development mass loadings of pollutants demonstrates that post-development discharges will be substantially lower than pre-development discharges. Currently, Marshall Creek periodically does not meet Class II water quality standards for dissolved oxygen. Construction and operation of the project will improve water quality in the creek concerning dissolved oxygen values because discharges from Pond N will be subjected to additional aeration. This results from design features such as discharge from the surface of the system, where the highest level of dissolved oxygen exists, and the discharge water draining through an orifice and then free falling to a stormwater structure, providing additional aeration. Discharges from the system will maintain existing uses of the Class II waters of Marshall Creek because there will be no degradation of water quality. Discharges will not cause new violations or contribute to existing violations because the discharge from the system will contain less pollutant loading for coliform and will be at a higher quality or value for dissolved oxygen. Discharges from the system as to water quality will not adversely affect marine fisheries or marine productivity because the water will be clear so there will be no potential for thermal stratification; the post-development discharges will remain freshwater so there will be no change to the salinity regime; and the gradual pre-development discharges will be replicated in post-development discharges. Several factors minimize potential for discharge of pesticide related pollutants: (1) only EPA-approved pesticides can be used; (2) only pesticides approved for site-specific soils can be used; (3) pesticides must be selected so as to minimize impacts on surface and groundwater; (4) pesticides must have a maximum half-life of 70 days; and (5) the system design will maximize such pollutant removal. Archaeological Resources The applicant conducted an archaeological resource assessment of the project and area. This was intended to locate and define the boundaries of any historical or archaeological sites and to assess any site, if such exists, as to its potential eligibility for listing in the National Register of Historic Places (National Register). Only a portion of one archaeological site was located on the project tract. Site 8SJ3473, according to witness Anne Stokes, an expert in the field of archaeological assessment, contains trace artifacts dating to the so-called "Orange Period," a time horizon for human archaeological pre-history in Florida dating to approximately 2,300 B.C. The site may have been only a small campsite, however, since only five pottery fragments and two chert flakes, residuals from tool-making were found. Moreover, there is little possibility that the site would add to knowledge concerning the Orange Period or pre-history because it is a very common type of site for northeast Florida and is not an extensive village site. There are likely other campsites around and very few artifacts were found. No artifacts were found which would associate the site with historic events or persons. The applicant provided the findings of its cultural resource assessment, made by Dr. Stokes, to the Florida Division of Historical Resources. That agency is charged with the responsibility of reviewing cultural resource assessments to determine if significant historic or archaeological resources will be impacted. The division reviewed the survey techniques used by Dr. Stokes, including shovel testing, sub-surface testing and pedestrian walk-over and investigation. The division determined that the site in question is not of a significant historical or archaeological nature as a resource because it does not meet any of the four criteria for inclusion in the National Register.1 Thus the referenced agency determined that the site in question is not a significant historical or archaeological resource and that construction may proceed in that area without further investigation, insofar as its regulatory jurisdiction is concerned. Wetlands The wetlands to be impacted by the project consist of a 1,000 foot drainage-way made up of a 0.11 acre open-water channel, approximately four feet wide, and an adjacent vegetated wetland area of approximately 0.52 acres containing fewer than 30 trees. The open-water channel is intermittent in that it flows during periods of heavy rainfall and recedes to a series of small, standing pools of water during drier periods. The Parcel D wetland is hydrologically connected to Marshall Creek, although its ephemeral nature means that the connection does not always flow. The wetland at times consists only of isolated pools that do not connect it to Marshall Creek. Although it provides detrital material export, that function is negligible because the productivity of the adjacent marsh is so much greater than that of the wetland with its very small drainage area. Because of the intermittent flow in the wetland, base flow maintenance and nursery habitat functions are not attributed to the wetland. The Parcel D wetland is not unique. The predominant tree species and the small amount of vegetated wetland are water oak and swamp bay. Faunal utilization of the wetland is negligible. The wetland drainage-way functions like a ditch because it lacks the typical characteristics of a creek, such as a swampy, hardwood floodplain headwater system that channelizes and contains adjacent hardwood floodplains. The location of the wetland is an area designated by the St. Johns County comprehensive plan as a development parcel. The Florida Natural Areas Inventories maps indicate that the wetland is not within any unique wildlife or vegetative habitats. The wetland is to be impacted as a freshwater system and is not located in a lagoon or estuary. It contains no vegetation that is consistent with a saltwater wetland. The retaining wall at the end of the impact area is located 1.7 feet above the mean high water line. Wetland Impacts The proposed 0.63 acre wetland impact area will run approximately 760 linear feet from the existing trail road to the proposed retaining wall. If the wetland were preserved, development would surround the wetland, adversely affecting its long-term functions. Mitigation of the wetland functions is proposed, which will provide greater long-term ecological value than the wetland to be adversely affected. The wetland to be impacted does not provide a unique or special wetland function or good habitat source for fish or wildlife. The wetland does not provide the thick cover that would make it valuable as Black Bear habitat and is so narrow and ephemeral that it would not provide good habitat for aquatic-dependent and wetland-dependent species. Its does not, for instance, provide good habitat for woodstorks due to the lack of a fish population and its closed- in tree canopy. Minnow sized fish (Gambusia) and crabs were seen in portions of the wetland, but those areas are downstream of the proposed area of impact. Mitigation Mitigation is offered as compensation for any wetland impacts as part of an overall mitigation plan for the Marshall Creek DRI. The overall mitigation plan is described in the development order, the mitigation offered for the subject permit and mitigation required by prior permits. A total of 27 acres of the more than 287 acres of wetlands in the total 1,300-acre DRI tract are anticipated to be impacted by the DRI. Approximately 14.5 acres of impacted area out of that 27 acres has already been previously authorized by prior permits. The overall mitigation plan for the DRI as a whole will preserve all of the remaining wetlands in the DRI after development occurs. Approximately one-half of that preserved area already has been committed to preservation as a condition of prior permits not at issue in this case. Also, as part of prior permitting, wetland creation areas have been required, as well as preserved upland buffers which further protect the preserved wetlands. The mitigation area for the project lies within the Tolomato River Basin. The development order governing the total DRI requires that 66 acres of uplands must also be preserved adjacent to preserved wetlands. The overall mitigation plan for the DRI preserves or enhances approximately 260 acres of wetlands; preserves a minimum of 66 acres of uplands and creates enhancement or restores additional wetlands to offset wetland impacts. The preserved wetlands and uplands constitute the majority of Marshall Creek, and Stokes Creek which are tributaries of the Tolomato River Basin, a designated Outstanding Florida Water (OFW). Preservation of these areas prevents them from being timbered and ensures that they will not be developed in the future. The overall DRI mitigation plan provides regional ecological value because it encompasses wetlands and uplands they are adjacent to and in close proximity to the following regionally significant resources: (1) the 55,000 acre Guana- Tolomato-Matanzas National Estuarine Research Reserve; (2) the Guana River State Park; (3) the Guana Wildlife Management Area; (4) an aquatic preserve; (5) an OFW; and (6) the 22,000 acre Cummer Tract Preserve. The mitigation plan will provide for a wildlife corridor between these resources, preserve their habitat and insure protection of the water quality for these regionally significant resources. The mitigation offered to offset wetland impacts associated with Parcel D includes: (1) wetland preservation of 0.52 acres of bottom land forest along the northeast property boundary (wetland EP); (2) wetland preservation of 3.98 acres of bottom land forest on a tributary of Marshall Creek contained in the DRI boundaries (Wetlands EEE and HHH); (3) upland preservation of 2.49 acres, including a 25-foot buffer along the preserved Wetlands EEE and HHH and a 50-foot buffer adjacent to Marshall Creek and preserved Wetland EP; (4) a wetland creation area of 0.82 acres, contiguous with the wetland preservation area; and (5) an upland buffer located adjacent to the wetland creation area. The wetland creation area will be graded to match the grades of the adjacent bottomland swamp and planted with wetland tree species. Small ponds of varying depths will be constructed in the wetland creation area to provide varying hydrologic conditions similar to those of the wetland to be impacted. The wetland creation area is designed so as to not de-water the adjacent wetlands. All of the mitigation lands will be encumbered with a conservation easement consistent with the requirements of Section 704.06, Florida Statutes. The proposed mitigation will offset the wetland functions and values lost through the wetland impact on Parcel D. The wetland creation is designed to mimic the functions of the impact area, but is located within a larger ecological system that includes hardwood wetland headwaters. The long-term ecological value of the mitigation area will be greater than the long-term value of the wetland to be impacted because; (1) the mitigation area is part of a larger ecological system; (2) the mitigation area is part of an intact wetland system; (3) the wetland to be impacted will be unlikely to maintain its functions in the long-term; and (4) the mitigation area provides additional habitat for animal species not present in the wetland to be impacted. Certain features will prevent adverse secondary impacts in the vicinity of the roadway such as: (1) a retaining wall which would prevent migration of wetland animals onto the road; (2) a guard rail to prevent people from moving from the uplands into wetlands; and (3) a vegetated hedge to prevent intrusion of light and noise caused by automotive use of the roadway.

Recommendation Having considered the foregoing Findings of Fact and Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses and the pleadings and arguments of the parties, it is RECOMMENDED: That a final order be entered granting the subject application for modification of Permit 4-109-0216A-ERP so as to allow construction and operation of the Parcel D project at issue, with the addition of the inclusion of a supplemental permit condition regarding the vegetated natural buffers for Lots 16 through 19 described and determined above. DONE AND ENTERED this 9th day of April, 2001, in Tallahassee, Leon County, Florida. P. MICHAEL RUFF 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 9th day of April, 2001.

Florida Laws (5) 120.57, 267.061, 373.086, 373.414, 704.06 Florida Administrative Code (5) 40C-4.091, 40C-4.301, 40C-4.302, 40C-42.023, 40C-42.026

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PASCO COUNTY (RYALS ROAD) vs DEPARTMENT OF ENVIRONMENTAL PROTECTION, 94-000001RX (1994)

Division of Administrative Hearings, Florida Filed:Tampa, Florida Jan. 03, 1994 Number: 94-000001RX Latest Update: Nov. 07, 1995

Findings Of Fact On or about July 25, 1989, Stephen G. Thompson, Permitting Engineer with the Department of Environmental Regulation (DER), predecessor of the Department of Environmental Protection (DEP), wrote a memorandum to Howard Rhodes, Deputy Director of DER's Bureau of Water Facilities Planning and Regulation. The memo relayed a question being posed by an engineering consultant working for Pasco County on its Lake Padgett Effluent Disposal System, DER construction Permit No. DC51-159899. The question was whether Special Condition 15 should be deleted from the permit. The Lake Padgett permit was for a rapid rate infiltration (percolation pond) land application system for the disposal, via ground water recharge, of domestic wastewater effluent. Through the question passed along to Rhodes, Rhodes understood that the system included percolation ponds and drainage ditches on the site, which the County's engineer referred to as "perimeter ditches." Rhodes was given to understand that the perimeter ditches were designed to improve the performance of the system by lowering the ground water table at the site and increasing the hydraulic capacity of the ponds. The question posed by the County's engineer indicated to Rhodes that Special Condition 15 to the Lake Padgett permit prohibited discharges from the perimeter ditches into wetlands, citing Section 403.086 of the Florida Statutes. The County's engineer suggested: Since these perimeter ditches are being installed 100 feet from the wetted perimeter of the percolation ponds, I believe it is correct to define the water in said ditches as groundwater rather than wastewater effluent. Therefore, I do not believe that Chapter 403.086 would apply to the water in these perimeter ditches. In passing the question along to Rhodes, Thompson also cast it in his own words: If the permittee designs the project with a perimeter ditch system 100 feet away from the edge of the percolation/evaporation pond wetted area, will the discharge from the ditch system have to meet WQBEL or Grizzle-Figg limits if applicable? According to Chapter 17-610.517(2) and 17-610.522, the collection and discharge of more than 50 percent of the applied reclaimed water shall be considered as an effluent disposal system. The question is whether the 100 feet buffer will allow the descrip- tion of the perimeter ditch water to be ground water or a co-mingled ground/reclaimed water. Rhodes reviewed the question and answered by memorandum dated September 15, 1989, which stated in salient part: Based on this review, discharges from perimeter ditch systems of percolation ponds must meet surface water quality requirements of advanced treatment, water quality based effluent limitations, or Grizzle- Figg limitations where applicable. Attached are comments which explain why these surface water quality requirements must be met. * * * COMMENTS Depending on site-specific parameters such as the infiltration rate, existing ground water table, subsurface flow, percolation pond depth, and ditch depth, the content of the water in the ditch may be either ground water or a mixture of ground water and reclaimed water. Because these parameters are site-specific, the content of water in the ditch is site-specific. However, knowledge of whether the water in the ditch is ground water or a mixture of ground water and reclaimed water is not important in determining the effluent limitations of the discharge from the ditch. . . . Because construction of perimeter ditches is associated with the operation of percolation ponds, the ditch should be considered part of the wastewater treatment facility and any discharge from the ditch must meet the applicable requirements of Rule 17-6, F. A. C., or Chapter 403, F.S. Also, because perimeter ditches are constructed around percolation ponds to improve performance, the ditches are located near the percolation ponds and some reclaimed water is normally drained to and collected in the ditch. Rule 17-610.517(2), F.A.C., specifically states discharge from perimeter drainage features that collect reclaimed water after land application are restricted by surface water quality considerations of additional treatment or the WQBEL provisions of Rule 17-6, F.A.C. . . . It was argued that because the zone of discharge is 100-feet from the percolation pond and the ditch is also 100-feet from the percolation pond, the water in the perimeter ditch system is ground water. However, zone of discharge as defined by Rule 17-6.0321(33), F.A.C., does not mean that all water located outside the zone of discharge is ground water. Zone of discharge is more appropriately interpreted as a "mixing zone" for ground water. Waters inside the zone do not have to meet water quality standards. If waters outside the zone do not meet water quality standards, the permit is violated. The following question also was raised: Why do the effluent limitations of Chapter 403.086, F.S., apply for the discharge of a perimeter ditch constructed 100-feet from a percolation pond when they do not apply for the discharge from a percola- tion pond constructed 100-feet away from wetlands? The answer to this question is: The discharge from the ditch is a surface water discharge whereas the discharge from the percolation pond is a ground water discharge. In the case of ground water discharges, ground water quality standards must be met outside the zone of discharge. . . . It seems that [the second sentence of F.A.C. Rule 17-610.517(2)] was interpreted to mean; if more than 50 percent of the applied reclaimed water is collected in the ditch, the water is considered effluent and if 50 percent or less of the applied reclaimed water is collected, the water is considered ground water. This is not the intent of this rule. The intent is; if more than 50 percent of the applied reclaimed water is collected in the ditch, the applied reclaimed water is considered an effluent disposal system and if 50 percent or less of the applied reclaimed water is collected, the applied reclaimed water may be considered a reuse system. Therefore, this section of rule is not applicable to the Lake Padgett effluent disposal question. The permittee requested Specific Condition 15 be deleted from the permit. In some cases, this may be done. However, if it is deleted, a condition should be added to the permit that the discharge from the ditch meet surface water quality requirements of advanced treatment, WQBELS, or Grizzle-Figg limitations, where applicable . . ., [and] the permittee should also be required to provide reasonable assurance that the required discharge limitations can be met. On March 15, 1990, another Department employee, named Jim Bottone, prepared a two-page memorandum generally discussing the increasing use of perimeter ditches conjunction with rapid-rate land application systems. The memorandum concluded: "In summary, the use of perimeter ditches in conjunction with rapid-rate systems appears to be a 'force fit' of technology in order to save money on disposal. These systems appear to circumvent the intent of the Department's reuse initiative." The discussion included a statement: "Rule 17- 610.517(2) states that the discharge from a perimeter ditch shall be restricted by surface water quality considerations." On December 13, 1990, the Department's Reuse Coordinator, David W. York, Ph.D., P.E., sent Richard Harvey, Deputy Director of the Department's Division of Water Facilities, a memorandum on the subject of perimeter ditches and rapid-rate land application systems. It referred to the Rhodes and Bottone memos, stating that the Rhodes memo "clearly addresses the applicability of surface water quality considerations for this type of system." It also stated: If perimeter ditches are used in association with land application projects, and if the ditches receive flows containing a portion of the applied reclaimed water, the ditches are subject to surface water quality constraints. Surface water quality constraints may include technology-based effluent limits, water quality-based effluent limits, or Grizzle-Figg limitations, as appropriate. F.A.C. Rule Chapter 17-610 pertains to "Reuse of Reclaimed Water and Land Application." F.A.C. Rule 17-610.517 is entitled "Surface Runoff Control." Paragraph (1) of the rule requires that the land application site be designed to prevent the entrance of surface runoff, if necessary by placement of berms around the application area for this purpose. Paragraph (2) of the rule provides: Discharge from perimeter drainage features that collect reclaimed water after land application, shall be restricted by surface water quality considerations pursuant to additional treatment or WQBEL provisions of Rules 17-600.420(2) and 17-600.430, F.A.C., respectively. Rapid-rate land application systems that result in the collection and discharge of more than 50 percent of the applied reclaimed water shall be considered as effluent disposal systems. Rules 17-600.420(2) and 17-600.430 establish additional levels of wastewater treatment for facilities that discharge to surface waters. The Department is in the process of amending part (2) of Rule 17- 610.517(2) by separating the sentences, making the second sentence a new part (3) of the rule, and explaining that the new part (3) would be used solely to classify projects as "reuse" or "disposal" and would in no way affect the requirements of part (2) of the rule. This amendment explicitly would codify in the rule the explanation in the Rhodes memo that the second sentence of current Rule 17-610.517(2) addresses the classification of disposal systems and, to that end, establishes as a benchmark the "collection and discharge [in the ditches] of more than 50 percent of the applied reclaimed water." F.A.C. Rule 17-610.522, entitled "Subsurface Drainage," provides: Subsurface drain systems, where necessary, shall be designed in accordance with appropriate portions of Rule 17-610.300(4)(f), F.A.C., concerning Soil Conservation Service criteria for subsurface drains. The drainage system shall be designed so that the seasonal high water table is drawn down to a minimum of 36 inches below pond bottoms during resting periods. Pollutant content (including fecal coliforms) of the reclaimed water collected by the underdrains may be further restricted by surface water quality considerations pursuant to additional treatment or WQBEL provisions of Rules 17-600.420(2) or 17-600.430, F.A.C., respectively. Rapid-rate land application systems that result in the collection and discharge of more than 50 percent of the applied reclaimed water shall be considered as effluent disposal systems. The Department also is in the process of amending Rule 17-610.522 by separating the sentences, making the last sentence a new part (2) of the rule, and explaining that the new part (2) would be used solely to classify projects as "reuse" or "disposal" and would in no way affect the requirements of part (1) of the rule. The 50 percent figure in F.A.C. Rules 17-610.517(2) and 17-610.522 was chosen based on deliberations by the 1988-89 Reuse Technical Advisory Committee (RTAC). The RTAC offers technical expertise and advice to the Department as revisions to Chapter 17-610 are drafted. A criterion was needed for categorization purposes, and it was determined that 50 percent represented a reasonable break point. The members of the RTAC represent the national leaders in reuse of reclaimed water. F.A.C. Rule 17-610.521(2) establishes a minimum 500-foot setback distance between the wetted areas of a reuse land application site and Class I and II surface waters of the state, reduced to 100 feet if high-level disinfection is provided. F.A.C. Rule 17-610.521(5) provides that setback distances to other classes of surface waters "shall be sufficient to provide reasonable assurance of compliance with applicable water quality standards." F.A.C. Rule 17-610.521(8) provides: The minimum setbacks . . . shall only be used if, based on review of the soils and hydrogeology of the area, the proposed hydraulic loading rate, quality of the reclaimed water, expected travel time of the ground water to the potable water supply wells and surface waters, and similar considerations, there is reasonable assurance that applicable water quality standards will not be violated. There is a valid reason for not establishing the same minimum setback distances between the wetted edge of percolation ponds and perimeter drainage features that collect reclaimed water after land application. Unlike reclaimed water that disperses and diffuses in the ground before a part of it reaches a water body solely through the ground, even though reclaimed water may travel through the ground for 100 feet before reaching perimeter drainage features, those features then collect and concentrate the resulting mixture of reclaimed water and groundwater for discharge into the surface water, typically at a limited number of discharge points and at higher volumes and flow rates. At some point as it migrates through the ground and mixes with other ground water, reclaimed becomes indistinguishable from naturally occurring ground water. It is, of course, difficult to pinpoint precisely how far from the wetted edge of a percolation pond this occurs.

Florida Laws (5) 120.52, 120.54, 120.56, 120.68, 403.086

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LINDA YOUNG vs DEPARTMENT OF ENVIRONMENTAL PROTECTION, 01-001462RP (2001)

Division of Administrative Hearings, Florida Filed:Tallahassee, Florida Apr. 13, 2001 Number: 01-001462RP Latest Update: Jun. 06, 2003

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THOMAS W. HANCOCK vs. DEPARTMENT OF ENVIRONMENTAL REGULATION, 83-002805 (1983)

Division of Administrative Hearings, Florida Number: 83-002805 Latest Update: Apr. 11, 1984

The Issue The issues in this matter concern Petitioner's requests of Respondent to be granted an after-the-fact dredge and fill permit related to the placement of fill. See Chapters 253 and 403, Florida Statutes, and Chapter 17-4, Florida Administrative Code. Respondent denied this request and this occasioned the formal hearing of February 10, 1984.

Findings Of Fact Petitioner placed a bulkhead waterward of the line of mean high water and the landward extent of the St. Johns River in Duval County, Florida, to improve his property. He then placed approximately 140 cubic yards of fill material in existing wetlands which were located landward of the bulkhead. This was done without obtaining an environmental permit from Respondent. Subsequently, Petitioner discovered that such permit was necessary and on April 28, 1983, he applied to the Department of Environmental Regulation for the issuance of an after-the-fact dredge and fill permit in keeping with the requirements of Chapters 253 and 403 Florida Statutes, and Chapter 17-4, Florida Administrative Code. An on-site inspection was made by reviewing authorities within the Department of Environmental Regulation and, based upon an appraisal of the project, the Department issued a Notice of Intent to Deny the application. The date of the notice was August 15, 1983. A Final Order related to the environmental permit request was issued on August 29, 1983, conditioned upon failure of the Respondent to apply for an administrative hearing within 14 days of the date of that order. Petitioner filed a Request for Formal Hearing on August 31, 1983, and the formal hearing ensued. The placement of the bulkhead and fill material was approximately 15 feet waterward of the line of mean high water in the St. Johns River and 30 feet waterward of the landward extent of the St. Johns River according to the plant indices set forth in Rule 17-4.02(17), Florida Administrative Code. The St. Johns River is a Class III water body and is a navigable waterway over which the state retains possessory and public trust rights. Notwithstanding the fact that the Petitioner has obtained permission from the State of Florida, Department of Natural Resources, related to property rights and utilization of the waters of the St. Johns River in the area of his project, he is not relieved from obtaining an environmental permit from Respondent. The Department of Environmental Regulation has jurisdiction over the construction of the bulkhead and the placement of the fill in the landward extent of St. Johns River, according to Chapters 253 and 403, Florida Statutes, and the associated rules of the Department. The landward extent of the waters of the St. Johns River was determined by the existence of smooth cordgrass (Spartina alterniflora), the dominant vegetation of the area filled by the Petitioner and a variety listed in Rule 17-4.02(17), Florida Administrative Code, as an indicator species of the Department's jurisdiction. That vegetation was covered over by the fill material along the 100-foot wide front in which the fill was placed. The previous existence of smooth cordgrass was established by testimony of the Petitioner's son and the continuing existence of that species in a property adjacent to the Petitioner's land along the St. Johns. The effect of the placement of the fill landward of the bulkhead caused the removal of approximately 1,200 to 1,500 square feet of tidal marsh. That tidal marsh was a vital part in the maintenance of water quality in the St. Johns River. In effect, the vegetation and microbiopopulation in soils served to filter out and assimilate pollutants from upland runoff and from the water in the river, and with the placement of the fill those resources and protections were destroyed. Moreover, water quality standards within Chapter 17-3, Florida Administrative Code, were also adversely impacted with the installation of the fill, including those standards related to BOD, dissolved oxygen, nutrients, and turbidity. Petitioner not only failed to give reasonable assurances that the placement of the fill in its short-term implication would not violate the aforementioned water quality criteria, he has also failed to give reasonable assurances that there will be no violations in the long-term results of the placement of fill. The destruction of the tidal marsh is detrimental to the ecological system in that it takes away detritus which is a necessary part of the food chain. Removal of the marshland is detrimental to the conservation of fish, marine and wildlife, and other natural resources. Petitioner has failed to affirmatively demonstrate that the quality of this detriment will not be contrary to the public interest. In fact, Respondent's presentation shows that the activity of the placement of fill is contrary to the public interest because of the adverse impacts on the natural resources of the area, in that natural marine habitats and grass flats suitable to nursery or feeding grounds for marine life were destroyed when the marshland was removed.

Florida Laws (2) 120.57, 403.031

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THE CONSERVANCY, INC., AND FLORIDA AUDUBON SOCIETY vs. COLLIER DEVELOPMENT CORPORATION AND DEPARTMENT OF ENVIRONMENTAL REGULATION, 88-006212 (1988)

Division of Administrative Hearings, Florida Number: 88-006212 Latest Update: Jan. 08, 1991

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COASTAL ENVIRONMENTAL SOCIETY, INC., AND ST. JOHNS PRESERVATION ASSOCIATION, INC. vs. GATE PETROLEUM COMPANY AND DEPARTMENT OF ENVIRONMENTAL REGULATION, 89-001939 (1989)

Division of Administrative Hearings, Florida Number: 89-001939 Latest Update: Oct. 11, 1989

The Issue The issues to be resolved in this proceeding concern whether the Respondent Gate Petroleum Company (Gate) has provided reasonable assurances that Water Quality Standards will not be violated by the proposed modification of Gate's dredge and fill permit No. 160462149 and whether Gate has provided reasonable assurances that the proposed modification of that permit will not be contrary to the public interest, nor be the occasion of adverse cumulative impacts to water quality or public interest considerations so as to make this project contrary to the public interest.

Findings Of Fact The Respondent Gate Petroleum Company, by and through its wholly-owned subsidiary, Gate Maritime Properties, Inc., proposes to construct a ship- berthing facility for two ships adjacent to Blount Island Channel, along the southeastern portion of Blount Island, in the St. Johns River, in Duval County, Florida. The proposed facility would provide for the berthing of two ships of the United States Navy Military Sea-Lift Command in conjunction with the mission of the Navy's Rapid Deployment Force. The proposed facility would be located along the southeasterly portion of "Cut A" of the Blount Island Channel and will consist of a "T-head Pier", a breasting dolphin and cat walk and two mooring dolphins. The pier would be connected to the land by an approach trestle. The facility involved will be constructed by the insertion of concrete pilings into the bottom of the Blount Island Channel and in the adjacent upland, which would support concrete decks and caps. Removal of dredged material will be necessary to accomplish the project and will be performed by a floating hydraulic dredge with associated "Cutter Head." The resulting dredged material would be disposed of in a diked spoil area on either Blount Island or at the Dayson Spoil Site adjacent to the mouth of Clapboard Creek. The Respondent Gate currently holds a DER dredge and fill permit, No. 160462149, authorizing the removal of approximately 3.4 million cubic yards of dredged spoil and the installation of an associated 5,000 feet of shoreline bulkhead. The proposed installation of the pier and mooring facilities would result in a modification of that permit so that approximately 1,000 feet of shoreline bulkhead and most of the related dredging will be unnecessary and not performed. Instead, approximately 7,100 cubic yards of dredging would be necessary, without the necessity for bulkheading. The remaining shoreline bulkhead and dredging authorized under the above permit would be rendered unnecessary and replaced by the addition of two additional T-head piers and associated dredging at some indefinite time in the future. The additional piers and dredging are not involved in this permit modification application and are not before the Hearing Officer at this time. The Blount Island Channel of the St. Johns River, the St. Johns River and Clapboard Creek are classified as Class III surface waters of the state pursuant to Sections 17-3.081 and 17-3.121, Florida Administrative Code. It has been established by stipulation of the parties that the proposed modification of the dredge and fill permit will not adversely affect navigation nor the flow of water in the Class III state waters involved. It is also stipulated that the proposed modification will not adversely affect historical and archaeological resources pursuant to Section 267.061, Florida Statutes. It is stipulated as well that the discharge of effluent from the Dayson spoil site will not violate water quality standards at the point of discharge in the Fulton-Dames Point Cut. On March 22, 1989, the Florida Department of Environmental Regulation issued its intent to approve the proposed permit modification so as to allow the elimination of the previous requirement in the permit to monitor for copper at the site of the effluent discharge; the relocation of the Blount Island spoil site effluent discharge and the construction of a T-head pier on the southeast side of Blount Island adjacent to the Blount Island Channel. The Department did not initially grant the request to relocate the Dayson spoil site effluent discharge from the Corps of Engineer Channel (Dames Point Cut) to the mouth of Clapboard Creek. On January 31, 1986, Gate was issued permit No. 160462149, pursuant to Chapters 403 and 253, Florida Statutes, with an expiration date of January 31, 1991. It authorizes the dredging and filling on and adjacent to Blount Island referenced above. The permit authorizes those operations in two phases, consisting of new dredging of approximately 300,000 cubic yards in the existing slipway and test area to obtain a project depth of 40.2 feet mean low water. Maintenance dredging was authorized in the amount of approximately 1,850,000 cubic yards in the slipway to maintain the above-noted project depth. New dredging of no more than 3 million cubic yards from the northeastern and southern margins of Blount Island to a depth of 38 feet mean low water (MLW) and 20 feet MLW on the northeastern and southern portions of Blount Island respectively, with attendant maintenance dredging, was authorized. The permit also allowed he construction of shoreline bulkheads along the eastern and southern margins of Blount Island. That 1986 permit also required disposal of dredged material from both phases of the project into diked areas on Blount Island and the existing diked off-site disposal area known as the Dayson Site, near the mouth of Clapboard Creek. Effluent from both sites was to be discharged to the Fulton-Dames Point Cut. Effluent from the Dayson site was to be discharged to the Fulton-Dames Point Cut or routed by pipeline to the Blount Island disposal site for additional treatment prior to discharge. All dredging under the 1986 permit was to be done via a suction, cutter-head dredge apparatus, with the speed of the cutter-head to be controlled so as to prevent excessive turbidity; and with all dredged material to be placed in diked areas, with the effluent discharge being conducted over adjustable weirs. The dredging of the approximately 7,100 cubic yards of material associated with the modification application at issue will be performed with the same type of equipment. Both spoil disposal sites have sufficient capacity for disposal of the material involved with the construction of the T-head pier. The effluent or "de-watering water" generated from the disposal of the dredged material at the Dayson on site will be discharged through a pipe under the St. Johns River to a point near the confluence of the Dames Point Cut and the Old River Channel. That material will consist of approximately 10 percent dredged solid material and 90 percent water. The Dayson disposal site is surrounded by dikes 24 feet high and 120 feet wide at their base. They are so constructed that there will be no discharge of effluent from the Dayson disposal site to Clapboard Creek. Since 1974, over four and one-half million cubic yards of material have been disposed of at the Days on site without any violation of state water quality standards in the creek or the adjacent salt marsh. The entire 7,100 cubic yards of dredged material, together with related water could be placed in the Dayson disposal site without causing any discharge. Gate Maritime Properties, Inc. has a five-year lease agreement with Leadermar, Inc. which will operate the T-head pier as a berthing facility for the two ships. The lease was scheduled to commence July 22, 1989. Under the terms of the contract awarded by the Navy to Leadermar, Inc., Gate, or its lessee, is required to maintain a 110 foot, safe working area surrounding the vessels for operation of tugs, lighterage vessels and fendering operations. The contract with the Navy does not require, however, that the safe working area be maintained at a depth of minus 32 feet "mean lower low water" as shown by Gate Exhibit 6 in evidence. 1/ Given the findings made infra., concerning the lack of adverse water quality or public interest impacts caused by the dredging, and the paucity of any attendant suspension of bottom materials in the operation of the ships to be berthed at the proposed facility, the issue of whether the contract with the Navy requires a depth of minus 32 feet "mean low water" or "mean low low water", a reputed difference of 1.03 inches according to the rebuttal exhibit of Respondent Gate, neither Gate's position nor the Navy's reputed position regarding this apparent contractual dispute item, if carried out, would have any adverse water quality or public interest impact in the context referenced in these findings of fact and conclusions of law. The fact remains that Gate has applied for authority to recede from the massive dredging project presently authorized in the existing permit, to stipulate by this modification application that it only seeks to dredge 7,100 cubic yards of material in the area involved. Based upon the depth established by the marine survey conducted by Bennett, Wattels and Associates, there will be an adequate safe working area for tug boats, fuel barges and lighterage vessels, as well as the ships themselves, for operations involving the berthing facilities. See Gate Exhibit 5 in evidence. If the requested modification is granted, Gate will not dredge more than 7,100 cubic yards of material for construction of the pier and related facilities and in order to provide a safe working area as required under Leadermars contract with the Navy. Indeed the amount of material to be dredged for the construction and operation of the T-head pier was based upon the above- referenced Marine survey, unrefuted evidence in this record. The volume of material was calculated by using the Marine Survey depths and the "average end area method," a widely accepted method of such calculation in the marine engineering and construction field. Further, Gate adduced the only substantial evidence in this record concerning the issue of the amount of dredging involved or the extent of the dredged area, as that relates to the "safe working area" and other issues. Water Quality Gates' consulting experts performed various chemical and sediment analyses in the project area in order to establish a general composition of bottom sediments and to establish the likelihood of suspension of any toxic substances or pollutants in those sediments as a result of the dredging operation or the operation of the ships and berthing facilities. Those analyses, and their results, in evidence in this record, were unrefuted. The bottom sediments in the vicinity of the project area are predominantly fine sand with small fractions of silt. In general, the dredged material is most likely to be free from chemical or biological pollutants where it is composed of sand, gravel or other naturally occurring inert materials, as opposed to large percentages of organic materials, which were not shown to exist in the vicinity of the project site. Based upon the characteristics of the bottom sediments in the project area, there will be no re-entrainment of toxins or pollutants which night presently be sequestered in the sediments due to construction, dredging operations or the operations of the berthing facility and ships involved. An elutriate test was performed to predict the effect on water quality from temporary suspension of the bottom sediments during the dredging operation itself. Elutriate testing is a widely recognized, conservative estimate of contaminant releases, caused by dredging, into a water column. The parameters tested for are those specified in the Department's rules for Class III waters and include cyanide, mercury, silver cadmium, selenium, barium, beryllium, nitrogen, (unionized NH3, NO2, total TKN), fluoride, copper, iron, nickel, zinc, aluminum, pesticides, herbicides and PCBs (polychlorinated biphenyls). The elutriate test results did not reveal any excess ion of any of these parameters in terms of the state water quality standards or as to prevailing natural background levels. There are no PCBs, hydrocarbons, heavy metals or pesticides shown to be sequestered in the bottom sediments of the Blount Island Channel in the vicinity of the proposed project. The chemical analyses was performed on composite elutriate samples of sediments which came from the area of the T- head pier location and the area north of the pier, where the propellers of the ships will be located and operated during test trials, after the ships are berthed at the site. Site specific chemical analyses and core borings were taken and compared with historical data or studies for these sites and found to be consistent with them. There is no likelihood of sequestered contaminants in the bottom sediments which would be released, with deleterious effect on water quality, as a result of the action of the dredge equipment or the operation of the ships after the facility is installed. Cutter-head, hydraulic pipeline dredges are not significant generators of turbidity. They are an efficient means of performing dredging and are designed to loosen and remove material from the bottom substrate, without disturbing or redistributing the dredged material around the dredge apparatus in the water column. The use of the hydraulic pipeline dredge will result in minimal water quality disturbance and any dredge-induced turbidity will be of a transitory, short-term nature. It would be localized in the immediate vicinity of the dredge's cutterhead in any event. Ambient water quality conditions can be expected to return to normal background levels in a matter of hours following cessation of the dredging activity. It is estimated by Gate's consultant witnesses that the dredging activity might be accomplished in approximately one day. It has thus been established that the relevant stage water quality standards will not be violated by the action of the dredging equipment and the dredging operation itself. Water Quality Impacts of Facility Operation The two ships of the military sealift command which are to be berthed at the proposed T-head pier are 948 feet in length and approximately 105 feet in beam. They are equipped with two main engines and two propellers. The propellers are 22 feet, 11 and 9/16 inches in diameter. The ships will be in what is known as "reserved operating status". The ships will go through a dry- docking procedure at a local shipyard approximately every two years for major overhauls, repairs and painting. Such maintenance work will not be performed at the project site. The ships will, however, undergo periodic "dock trials" while berthed at the facility. The dock trials will be conducted on a quarterly basis if the vessels have not been out on a mission in that quarter of the year. The dock trial procedure calls for the main propulsion powerplants of the ships to be put into operation and evaluated. Both main engines are tested under this procedure for approximately one hour, at ten revolutions per minute (rpm) ahead and astern. The tests are to be conducted by civilian personnel retained by the Navy or its contractor, with all appropriate safety precaution being taken. These include, but are not limited to, the manning of the bridge during tests by a master or chief mate and by rotating one engine ahead simultaneously with the other engine being rotated astern. The ships are also equipped with onboard, internal sewage treatment plants so as to prevent the discharge of pollutants to state waters. Only routine maintenance or repair work will be performed on the ships at the lay birth facility. The ships will be refueled at the facility from time to time with "bunker c" or diesel fuel brought in by barges. The barges will be conveyed by tugboats of no more than 16 feet draft. The fueling operation will be governed by the U.S. Coast Guard regulations and are performed by Coast Guard certified and licensed personnel. Dr. Neal Boehnke was accepted as an expert in the field of chemical analysis of water and testified on behalf of the Petitioner. In his opinion, water quality in the facility of the proposed project is poor and may contain elevated hydrocarbon levels. His opinions, however, are based upon 1982 and 1983 reports of sampling results allegedly obtained by the City of Jacksonville Bioenvironmental Services Division and the DER, as well as the study entitled "Survey of Hydrocarbons and the Lower St. Johns River in Jacksonville." These documents were not introduced into evidence. While it is true that an expert may base his opinion on facts and data made known to him in the normal course of his practice at or before trial and that those facts or data may be relied upon by him in formulating his opinions, it must be demonstrated that those facts and data are "of a type reasonably relied upon by experts in the subject to support the opinions expressed." See Section 90.704, Florida Statutes. In this proceeding, it was not established by competent evidence or testimony at hearing that the facts or data derived from these documents were of such a type as to be encompassed by this statutory section and thus they cannot serve as a legitimate basis for Dr. Boehnke's opinion. They otherwise constitute inadmissible hearsay, not sufficient to support a finding of fact on the water quality impacts from the proposed project and they do not constitute corroborative or explanatory hearsay related to any accepted, competent, substantial evidence in this record for purposes of the hearsay admissibility provision in Section 120.58, Florida Statutes. Therefore, Dr. Loehnke's opinion concerning alleged elevated levels of hydrocarbons in the water at the project site is not credited and is rejected. Dr. Allan Niedororda was accepted as an expert in the fields of oceanography, hydrology and hydrologic assessment. He conducted a study on the potential impact to water quality in the Blount Island Channel which might result from the dock trials to be carried out as a part of the routine maintenance and testing of the ships. His study evaluated the degree to which the propeller wash from the dock trials might entrain and transport bottom sediments, any related pollutants and the effect of this entrainment on water quality in the surrounding water column. His study consisted of field sampling and measurements of currents in the area, laboratory analysis and related data analysis. Bottom sediment samples from the project area were analyzed for particle size and grain size distribution according to standard, scientifically accepted procedures. The bottom sediments in the area of the project site are characterized by a sandy sediment of a fine to medium particle size characteristic. The bottom sediments largely consist of clean sand and small gravels, with some silt composition. The propeller wash which will be generated by the testing of the ships engines was computed to have a speed of approximately one half foot per second. Maximum speed will occur about three propeller diameters behind the plane of the propeller itself or about 72 feet behind the propellers. The bottom tip of the propeller with which the ships are equipped will be six feet off the bottom of the channel at low tide. At the point the propeller wash contacts the bottom, its speed will be approximately two tenths of a foot per second. Such a velocity will not be of sufficient force to produce such sheer stress on the bottom sediments as to entrain them or, that is, to displace them upward into the water column. Dr. Niedororda established that, even if the propeller wash is added to the natural velocity of the water currents at the project site, there would be no entrainment of the bottom sediments which he sampled in the project area. It has also been established that the routine, minor maintenance of the ships and dockage facilities involved in the permit application and the fueling and other operations associated with the berthing, testing, entry and egress of the ships from the proposed berthing facility will occasion no water quality violations, so long as appropriate Coast Guard regulations attendant to fueling and the prevention of the deposition of refuse and other wastes into the waters involved are observed. Any grant of the proposed permit modifications should be conditioned upon the strict observance of those regulations and procedures, especially with regard to the potential for spillage during fueling operations. Public Interest Standards Section 403.918(2), Florida Statutes provides that a permit may not be issued unless the applicant provides the department with reasonable assurances that the project is not contrary to the public interest. In determining whether this is the case, the Department must consider and balance the following criteria: Whether the project will adversely affect the public health safety or welfare or the property of others; Whether the project will adversely affect the conservation of fish and wildlife, including endangered or threatened species, or their habitats; Whether the project will adversely affect navigation or the flow of water or cause harmful erosion or shoaling; Whether the project will adversely affect the fishing or recreational values or marine productivity in the vicinity of the project; Whether the project will be of a temporary or permanent nature; Whether the project will adversely affect or will enhance significant historical and archaeological resources under the provisions of Section 267.061; The current condition and relative value of functions being performed by areas affected by the proposed activity. It has been established by stipulation that the project will not adversely affect navigation or the flow of water and that the project will not adversely affect significant historical or archaeological resources. Unrefuted evidence adduced by Gate and the Department have established that the project will not adversely affect the public, health, safety, welfare or the property of others, if the project is constructed, installed and operated as proposed in the modification application and as proved in this case. The conservation of fish and wildlife, including endangered or threatened species, or their habitats, as well as fishing and recreational values and marine productivity in the project area will not be adversely affected. No harmful erosion or shoaling will be caused by the installation or operation of the project facility. In this connection, Dr. A. Quinton White, a member of the Board of Directors of the Petitioner, C.E.S., acknowledged in his testimony that the Manatee Protection Plan and Manatee Watch Program proposed to be inaugurated by Gate will adequately protect any Manatees frequenting the area. Manatees are an endangered species, but it has been established that the permit modification proposed, if installed and operated, will not adversely affect the conservation of Manatees or their habitat. The Petitioner adduced no evidence on this issue or any of the public interest criteria enumerated above. The area at the project site is characterized by fairly firm consolidated bottom substrata, characterized by very few submerged grasses. Due to the sandy, hard bottom in the project vicinity, there is a paucity of marine grass upon which Manatee could feed. Consequently, Manatees do not and are not likely to frequent the area involved at the project site as that might reflect on the likelihood of their injury or destruction due to operation of the ships and any attendant vessels. Dr. Niedoroda established that the project and the attendant operations of the ships will not cause harmful erosion or shoaling and witness Gary Tourtellotte, testifying for Gate, established that the effects of the construction and operation of the T-head pier on the benthic community and marine productivity in the vicinity of the project will not induce any adverse effect on those elements of the public interest standards involved. The Petitioner offered no credible or credited evidence of equivalent value which could contradict the evidence adduced by Gate on this aspect of the public interest standards. It is true that dredging of the bottom substrata will temporarily eliminate the benthic community within the dredged area itself. It was established by expert testimony, however, that the benthic community will rapidly re-colonize itself with similar organisms to a naturally occurring degree within approximately 6-12 months. The benthic community in the project vicinity is of a low density nature, with a low diversity of organisms. Those organisms occurring in the project site area are estuarine, marine benthic species commonly associated with sandy or silty bottom substrates. Because the area to be dredged is quite small or approximately .25 acres, and the dredging operations will be of short duration, approximately one day, the dredging operations will not have a significant adverse effect on the benthic communities occurring in the project area or in the adjacent St. Johns River. The dredging associated with the project will likewise not have a significant long-term adverse impact on fisheries resources or marine productivity of the Blount Island Channel or the St. Johns River. This is because the area to be dredged is minimal in size and does not contain critical marine benthic habitat. The turbidity generated will be minimal because the sediments are predominantly coarse sands and gravels. Because of this, any turbidity occasioned by the installation and operation of the proposed facility will be very brief and not of a sufficient significance as to violate water quality standards. In view of the hydrologic analysis in evidence concerning propeller wash effects, the bottom sediments at the ship mooring area will not be entrained or suspended in the water column to any significant degree due to propeller operation of the ships. Thus the benthic community in the mooring area for the ships will not be disturbed due to currents created by the operation of the propellers. In a similar vein, it has been shown that the dredging and operation of the T-head pier and mooring facilities, including the attendant conduct of periodic dock trials and the entry and egress of the ships will not violate the water quality criteria for biological integrity. Indeed, the periodic dock trials are shown to have no impact on the benthic community, the fisheries or marine habitat involved at the project site. It was neither shown that the dredging associated with the construction of the pier and berthing facilities will have any adverse impact on fin fish or shellfish in the project area. It has been established that the project will be of a permanent nature, but it has not been established that the current condition and relative value of the functions being performed by the areas affected by the proposed activity in terms of their functions as productive marine habitat, as furnishing fishing or recreational values and the like, will be adversely affected by the proposed project and attendant activity. Deletion of Copper Monitoring Requirement The 1986 permit authorizing the removal of approximately 3.4 million yards of dredged material with attendant extensive bulkheading in the Blount Island Channel requires also that Gate Monitor for copper every two weeks during discharges at the downstream boundary of the mixing zone for each point of a effluent discharge. Effluent from both the Blount Island and Dayson Disposal Sites is discharged into the Fulton Dames Point Cut. The Petitioner has stipulated that the discharge of effluent from the Dayson Spoils Site will not violate any water quality standard at that discharge point. Elutriate testing and other analyses submitted in support of the permit modification request to delete the copper monitoring requirement in the present permit have shown that there will be no violation of water quality standards as to copper, or any of the other water quality parameters involved due to any re-suspenions of bottom sediment during dredging. There will be no violation of water quality standards for copper, caused by the deposition of spoil, consisting of those bottom sediments, and the draining of effluent from the spoils site into the Dames Point Cut. The Department has independently verified the data submitted by Gate as a result of this testing and it has been established that there is no occurrence of any man induced pollutants in the sediments at the project site which will be deposited in the spoil site, (from which the effluent will be disposed of in the Dames Point Cut) which represents any elevation over natural background levels. The sediments to be dredged from the berthing area are not distinguishable from naturally occurring sediments and the copper values in the sediments to be dredged are no higher than those naturally occurring throughout the area. Thus there will be no adverse impact on the water quality occasioned by discharge of the effluent from the spoil site to the Dames Point Cut area due to copper occurring in the sediments or as to any of the other pollutants enumerated above. Thus, there has been no demonstrated necessity to continue monitoring the effluent from the spoil site for copper. In this regard, the Petitioner presented no evidence at hearing concerning the issue of whether copper monitoring should be continued or not. Cumulative Impact Blount Island was created in the 1950's and 1960's by the filling of its area with spoil material during the U.S. Army Corps. of Engineers' construction of the Fulton-Dames Point Cut-Off Channel. Since that time, port facilities and an industrial complex have been constructed on Blount Island. It is one of the principle port facilities for the City of Jacksonville. Under the 1982 DER dredge and fill permit issued to Off-Shore Power Systems, and later transferred to Gate in 1986, the developed area of the island adjacent to the original St. Johns River Channel (the Blount Island Channel) was required to be bulk-headed and the channel dredged to -38 feet MLW. The amount of material to be dredged in the old channel of the St. Johns River for construction of the vertical shoreline bulk head totalled approximately 3.4 cubic yards. The T-head pier involved in this modification proceeding, if constructed, would replace 1,000 linear feet of that shoreline bulkhead authorized by the present permit and would substantially reduce the amount or quantity of material to be dredged. Construction of the T-head pier, instead of the permitted shoreline bulkhead, will minimize dredging and the environmental impact of the facility. Gate has elected to rescind its plans to construct the shoreline bulkhead along the eastern shore of Blount Island, as authorized under the existing dredge and fill permit. Gate instead intends to seek future modification of its existing dredge and fill permit to substitute at least 2 additional T-head piers for all of the shoreline bulk head authorized for the eastern shore of Blount Island. The construction of the additional T-head piers will require substantially less dredging than is authorized under the existing permit. Instead of the 3.4 million cubic yards of dredged material authorized under the existing permit, associated with installation of the shoreline bulkhead, the amount of material to be dredged, if indeed 2 additional T-head piers were applied-for and constructed, would amount to only 269,000 estimated cubic yards, as opposed to the originally authorized 3.4 million. Kevin Pope, the DER witness, established that there are no other projects in the area, or reasonably expected to be located in the project area, which would create impacts in addition to or cumulative with the proposed permit modification project so as to create adverse water quality impacts or which would make this project, because of cumulative impact, contrary to the public interest. There are no other dredge and fill projects in the area of the proposed T-head pier which would adversely impact the waters of the Blount Island Channel and the St. Johns River. The proposed modifications are shown not to likely cause any adverse environmental results and, in fact, will result in an environmental benefit as represented by the agreed-upon recession from the extensive dredging and bulkheading authorized by the present permit. No evidence was adduced by the Petitioner to contravene that adduced by Gate and the Department, which establishes the lack of any adverse cumulative impacts to be occasioned by the proposed project, both as to water quality standards and the public interest standards involved in this proceeding.

Recommendation Having considered the foregoing findings of fact, conclusions of law, the evidence of record, the candor and demeanor of the witnesses and the pleadings and arguments of the parties, it is therefore, RECOMMENDED: That a Final Order be entered by the Department of Environmental Regulation approving the proposed modification to permit number 160462149 with the proviso that the conditions contained in the above findings of fact and conclusions of law be incorporated as specific conditions in the modified permit, including the additional condition agreed to at Final Hearing that the Manatee Protection Plan and Manatee Watch Program will be inaugurated and be incorporated as a specific condition in the modified permit. DONE and ENTERED this 11th of October, 1989, at Tallahassee, Florida. P. MICHAEL RUFF Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 12th day of October, 1989.

Florida Laws (3) 120.57, 267.061, 90.704

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