The Issue The issue for determination is whether Jupiter Hills Lighthouse Marina is entitled to be issued a permit by the Department of Environmental Protection for its project application submitted July 29, 1992, and revised November 15, 1993, to enlarge an existing marina and add new slips.
Findings Of Fact On July 29, 1992, Jupiter Hills Lighthouse Marina (Respondent Jupiter Hills) submitted an application to the Department of Environmental Protection (Respondent DEP) for a permit to enlarge an existing dock facility to 488 feet and to increase the existing 6 slips to 48 new slips. Respondent Jupiter Hills is located 0.7 miles north of Martin County Line Road, on U. S. Highway One, Indian River Lagoon, Jensen Beach to Jupiter Inlet Aquatic Preserve, more particularly described as Martin County, Section 19, Township 40 South, Range 43 East, Indian River Lagoon Class III Waters. On November 15, 1993, Respondent Jupiter Hills amended its application at the request of Respondent DEP. The revised proposed project increases the dock facility from 6 slips to 18 slips, restricting 12 of the 18 slips for sailboat use; and proposes a new 149 foot long T-shaped pier from the existing pier, creating a total dimension of 180 feet by 60 feet. Further, Respondent Jupiter Hills proposes to remove four existing finger piers and 10 existing mooring pilings, to add eight finger piers and 34 new mooring pilings, and to place riprap along the existing seawall and new pier. The proposed project is located in an Outstanding Florida Water (a designated aquatic preserve), the Jensen Beach to Jupiter Inlet Aquatic Preserve, which is a part of the Indian River Preserve. Significant water quality parameters for this proposed project include coliform bacteria, heavy metals, and oil and grease. Water quality standards for oil and grease are not being currently met. However, to address this noncompliance, Respondent Jupiter Hills has agreed to include, as part of this project, the installation of an exfiltration trench to trap grease coming from the uplands. This trench will improve water quality, causing a net improvement of water quality in the proposed project area. Stormwater from the area, including a portion of U. S. Highway One and parking areas within U. S. Highway One right-of-way, discharge directly into Respondent Jupiter Hills. This stormwater then drains directly into tidal waters. The exfiltration trench is designed to intercept up to three-fourths of an inch of the stormwater flow currently draining into the basin. The owners of Respondent Jupiter Hills will maintain the exfiltration trench. They have signed a long-term agreement with Respondent DEP for the maintenance of the trench, and the agreement is included in Respondent DEP's Intent to Issue. Water quality standards for fecal coliform are currently being met. The construction of the proposed project will not preclude or prevent continuing compliance with these standards. Respondent Jupiter Hills has proposed a sewage pump-out station which is not currently in the area and which will encourage boaters to pump boat sewage into the city treatment area instead of dumping the sewage into the water. The pump-out station will be connected to the central sewage system, but boaters will not be required to use the sewage pump-out station. However, since liveaboards are more likely to cause fecal coliform violations, Respondent Jupiter Hills has agreed that no liveaboards will be permitted in the proposed project. Water quality standards for heavy metals are currently being met. The construction of the proposed project will not preclude or prevent continuing compliance with these standards. Respondent Jupiter Hills proposes to use construction materials which have not been treated by heavy metals. Also, because the proposed project area flushes in one tidal cycle, any additional metals from the boats themselves would be swept away quickly. The proposed project will not adversely impact or affect the public health, safety or welfare or the property of others. Respondent Jupiter Hills has provided reasonable assurance that water quality standards will be met, continue to be met, and not violated. As a result, the public health and safety are protected. The proposed pump-out facility will reduce the incidences of illegal head discharges into the Jupiter Sound. Thus, this facility will benefit the health and safety of swimmers or others participating in water-related activities in the Jupiter Sound. The proposed project will not adversely affect the conservation of fish and wildlife, including endangered or threatened species, or their habitats. Respondent Jupiter Hills has agreed to several measures designed to reduce any adverse impacts to fish and wildlife and the measures have been incorporated into the Intent to Issue. Respondent Jupiter Hills has agreed to not allow new power boats to dock at the proposed facility, which will prevent adverse affects on the manatee population in the area. Additionally, the proposed pump-out facility will improve the water quality, resulting in a benefit to fish and wildlife, including the Benthic habitat and seagrasses. Respondent Jupiter Hills has further agreed to install navigational signs, directing boaters away from manatees, and no wake signs, indicating the presence of manatees; these signs do not presently exist. Furthermore, Respondent Jupiter Hills has agreed to post signs directing boaters away from any seagrasses located in the proposed project area. Whether seagrasses in the proposed project area will be adversely affected is also a factor to be considered. Inspections and surveys of the proposed project area in December 1992 and mid-March 1993 revealed one patch of Halophila decipiens and Halophila johnsonii at the 100 foot contour but no seagrasses within the footprint of the proposed project. A survey of the area in late April 1994 revealed some seagrasses in the proposed project area but no seagrasses within the footprint of the proposed project. In September 1995, an examination of the area revealed Halophila decipiens just waterward of the existing slips down to the southern property boundaries 20 to 30 feet wide and revealed sparse seagrasses approximately 300 to 500 feet from the shoreline. Halophila decipiens is more abundant and thick in the summer and tends to die off and at its thinnest in the winter. Neither Halophila decipiens nor Halophila johnsonii are threatened or endangered species of seagrasses. The seagrasses provide a significant environmental benefit. The benefits include nutrient recycling in the area and providing habitat for Benthic invertebrates, such as crabs, which are at the bottom of the food chain. Also, other plants grow on the seagrasses, such as algae, and the other plants provide food for other organisms. Manatees eat several seagrasses, including Halophia decipiens but it is not one of the manatees preferred seagrasses. Seagrasses can be adversely affected in two ways. One way is that prop dredging could scar the seagrasses. However, as to the proposed project, the depth of the water in the area of the seagrasses will prevent any adverse affects from prop dredging. The second way that seagrasses can, and will, be adversely affected is being shaded by the proposed dock or by boats tied-up to the dock. The density of the seagrass, pertaining to this proposed project, is thin and low and approximately one percent of actual coverage. In determining whether the proposed project is clearly in the public interest, Respondent DEP uses a balancing test which consists of taking the public interest criteria and weighing the pros and cons of the proposed project. Balancing the adverse impacts on the seagrasses and the positive effects of the public interest criteria, the proposed project is clearly in the public interest. The slips in the proposed project will increase by 12; however, the slips can only be used by sailboats. Since sailboats move slowly, the manatees in the area will not be adversely affected by the proposed project. Neither navigation nor the flow of water will be adversely affected by the proposed project. Further, no harmful erosion or shoaling will be caused by the proposed project. Adequate depths are off of the end of the dock for boats to safely navigate. Shoaling is not a potential problem, and therefore, any potential shoaling which may develop will not adversely affect navigation. The proposed dock will not impact navigation into the Intracoastal Waterway (ICW) because the dock will not extend into the ICW and because Respondent Jupiter Hills will provide navigational aids to guide boaters to access the Atlantic ICW. Furthermore, there is sufficient depth for navigation between the end of the proposed dock and the sandbar where the seagrasses are located. Boat traffic coming from the south will primarily originate from the residences to the south. The proposed dock will force these boaters 200 feet offshore where the natural channel is located. Additionally, the dock will keep boaters further offshore from the riparian land owners to the north, including the Petitioners. To improve the public interest aspects of the project, Respondent DEP proposed that Respondent Jupiter Hills install riprap, which Respondent Jupiter Hills agreed to do. Installation of the riprap will be 367 feet along the perimeter of the proposed dock and in a 10 by 50 foot area along the bulkhead north of the dock. Some shoaling will result but will not affect navigation. The riprap will provide substrate and shelter for marine life. The fishing or recreational values or marine productivity will not be adversely affected by the proposed project. Marine productivity will increase because the sewage pump-out station will improve the water quality which will benefit the Benthic community. The proposed project will be of a permanent nature. Significant historical and archaeological resources will not be adversely affected by the proposed project. The Department of State, which is responsible for historical and archaeological resources, reviewed the Notice of Intent and has no objection to the proposed project. The current condition and relative value of functions being performed by areas affected by the proposed project will be increased and, therefore, benefited. No cumulative impacts are associated with the proposed project. The proposed project is not in an area of pristine shoreline; the area is highly developed. Approximately 1,200 feet to the south of the proposed project is a 270 foot dock with about 50 slips. When considered with the other docks in the area, the extension of the dock in the proposed project will not significantly or measurably further violate the water quality. Respondent Jupiter Hills has provided reasonable assurance that the proposed project is clearly in the public interest.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Environmental Protection issue a final order issuing Permit No. 432170499 to Jupiter Hills Lighthouse Marina. DONE AND ENTERED this 8th day of April, 1996, in Tallahassee, Leon County, Florida. ERROL H. POWELL, 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 8th day of April, 1996. APPENDIX The following rulings are made on the parties' proposed findings of fact: Petitioners Proposed Findings of Fact Partially accepted in finding of fact 1. Partially accepted in finding of fact 3. Partially accepted in findings of fact 1 and 2. Partially accepted in finding of fact 2. Partially accepted in finding of fact 10. Rejected as being irrelevant, or unnecessary. See, conclusion of law 43. Also, partially accepted in findings of fact 19-27, 34-35. Partially accepted in finding of fact 4. Partially accepted in finding of fact 5. Partially accepted in findings of fact 5 and 6. Partially accepted in finding of fact 7. Partially accepted in finding of fact 9. Rejected as being unnecessary. Also, see finding of fact 18. Partially accepted in finding of fact 10. Partially accepted in findings of fact 8, 9, and 10. Partially accepted in finding of fact 9. Partially accepted in findings of fact 12 and 13. Partially accepted in finding of fact 11. See, conclusion of law 46. Partially accepted in findings of fact 9 and 16. Partially accepted in finding of fact 18. Partially accepted in finding of fact 18. Partially accepted in finding of fact 31. Partially accepted in findings of fact 18 and 28. Partially accepted in findings of fact 29 and 30. Partially accepted in finding of fact 31. Partially accepted in finding of fact 33. Partially accepted in finding of fact 9. Partially accepted in finding of fact 37. Partially accepted in finding of fact 36. Rejected as being argument, or a conclusion of law. Rejected as being argument, or a conclusion of law. Partially accepted in finding of fact 23. Partially accepted in finding of fact 23. Partially accepted in finding of fact 24. Rejected as being irrelevant, or unnecessary. Partially accepted in finding of fact 20. Partially accepted in finding of fact 20. Partially accepted in finding of fact 20. Rejected as being irrelevant, unnecessary, argument, or a conclusion of law. Rejected as being irrelevant, unnecessary, argument, or a conclusion of law. Partially accepted in finding of fact 20. Rejected as being irrelevant, unnecessary, argument, or a conclusion of law. Partially accepted in findings of fact 20 and 21. Partially accepted in finding of fact 26. Partially accepted in findings of fact 3 and 20. Partially accepted in finding of fact 20. Rejected as being not supported by the greater weight of the evidence, argument, or a conclusion of law. Rejected as being irrelevant, unnecessary, argument, or a conclusion of law. Rejected as being irrelevant, unnecessary, argument, or a conclusion of law. Rejected as being irrelevant, unnecessary, argument, or a conclusion of law. Rejected as being not supported by the greater weight of the evidence, argument, or a conclusion of law. Rejected as being irrelevant, unnecessary, argument, or a conclusion of law. Partially accepted in findings of fact 19-27. Rejected as being irrelevant, unnecessary, argument, or a conclusion of law. Rejectd as being irrelevant, unnecessary, argument, or a conclusion of law. Rejected as being irrelevant, unnecessary, argument, or a conclusion of law. Rejected as being irrelevant, unnecessary, argument, or a conclusion of law. Rejected as being irrelevant, unnecessary, argument, or a conclusion of law. Respondent Jupiter Hills' Proposed Findings of Fact Partially accepted in finding of fact 1. Partially accepted in finding of fact 1. Partially accepted in finding of fact 2. Partially accepted in findings of fact 1 and 2. Partially accepted in finding of fact 13. Partially accepted in finding of fact 13. Partially accepted in findings of fact 30 and 31. Partially accepted in finding of fact 14. Partially accepted in finding of fact 17. Partially accepted in finding of fact 29. Partially accepted in finding of fact 34. Partially accepted in finding of fact 36. Partially accepted in finding of fact 13. Partially accepted in finding of fact 38. Partially accepted in finding of fact 39. Partially accepted in findings of fact 29, 30 and 33. Partially accepted in finding of fact 31. Partially accepted in finding of fact 15. Partially accepted in findings of fact 4, 5, 8, and 11. Partially accepted in findings of fact 5 and 6. Partially accepted in finding of fact 9. Partially accepted in findings of fact 5, 8, and 9. Partially accepted in finding of fact 9. Partially accepted in finding of fact 9. Partially accepted in finding of fact 9. Partially accepted in finding of fact 16. Partially accepted in findings of fact 9, 14, 15, and 16. Partially accepted in findings of fact 18, 24, and 27. Partially accepted in findings of fact 18 and 28. Partially accepted in finding of fact 28. Partially accepted in finding of fact 18. Partially accepted in finding of fact 22. Partially accepted in finding of fact 21. Partially accepted in findings of fact 20 and 26. Partially accepted in finding of fact 26. Partially accepted in findings of fact 20 and 26. Rejected as being irrelevant, or unnecessary. Rejected as being unnecessary, argument, or a conclusion of law. Partially accepted in finding of fact 27. Partially accepted in finding of fact 27. Rejected as being argument, or a conclusion of law. Rejected as being unnecessary, argument, or a conclusion of law. Rejected as being irrelevant, unnecessary, argument, or a conclusion of law. Partially accepted in finding of fact 25. Partially accepted in finding of fact 33 Partially accepted in finding of fact 33. Partially accepted in finding of fact 40. Rejected as being irrelevant, or unnecessary. Rejected as being irrelevant, or unnecessary. Rejected as being irrelevant, or unnecessary. Partially accepted in finding of fact 10. Rejected as being unnecessary, or a conclusion of law. Partially accepted in findings of fact 27 and 41. Respondent DEP's Proposed Findings of Fact Partially accepted in finding of fact 1. Partially accepted in finding of fact 2. Partially accepted in finding of fact 3. Partially accepted in finding of fact 4. Partially accepted in finding of fact 5. Partially accepted in finding of fact 6. Partially accepted in finding of fact 7. Partially accepted in finding of fact 8. Partially accepted in findings of fact 9 and 10. Partially accepted in finding of fact 11. Partially accepted in findings of fact 12 and 13. Partially accepted in finding of fact 15. Partially accepted in finding of fact 14. Partially accepted in finding of fact 15. Partially accepted in finding of fact 16. Partially accepted in finding of fact 17. Partially accepted in finding of fact 18. Partially accepted in findings of fact 19 and 20. Partially accepted in finding of fact 20. Partially accepted in finding of fact 20. Partially accepted in finding of fact 20. Partially accepted in finding of fact 21. Partially accepted in finding of fact 22. Partially accepted in findings of fact 25 and 26. Partially accepted in finding of fact 26. Partially accepted in finding of fact 26. Partially accepted in finding of fact 27. Partially accepted in finding of fact 27. Partially accepted in finding of fact 28. Partially accepted in finding of fact 29. Partially accepted in finding of fact 30. Partially accepted in finding of fact 31. Partially accepted in finding of fact 32. Partially accepted in finding of fact 33. Partially accepted in finding of fact 33. Partially accepted in finding of fact 34. Partially accepted in finding of fact 35 Partially accepted in finding of fact 36. Partially accepted in finding of fact 37. Partially accepted in finding of fact 37. Partially accepted in finding of fact 38. Partially accepted in finding of fact 39. Partially accepted in finding of fact 40. Partially accepted in finding of fact 41. NOTE: Where a proposed finding of fact has been partially accepted, the remainer has been rejected as being irrelevant, unnecessary, cumulative, not supported by the evidence presented, not supported by the greater weight of the evidence, argument, or a conclusion of law. COPIES FURNISHED: J. A. Jurgens, Esquire Post Office Box 1178 Winter Park, Florida 32790-1178 Timothy C. Laubach, Esquire Sears and Manuel, P.A. 1218 Mount Vernon Street Orlando, Florida 32803 M.Tracy Biagiotti, Esquire Scott Hawkins, Esquire Jones, Foster, Johnston & Stubbs, P.A. Post Office Box 3475 West Palm Beach, Florida 33402 (Attorney for Jupiter Hills Lighthouse Marina) Lynette L. Ciardulli Assistant General Counsel Department of Environmental Protection 2600 Blair Stone Road Tallahassee, Florida 32399-2400 Douglas MacLaughlin Assistant General Counsel Department of Environmental Protection 2600 Blair Stone Road Tallahassee, Florida 32399-2400 Kenneth Plante General Counsel Department of Environmental Protection Douglas Building 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 Virginia B. Wetherell, Secretary Department of Environmental Protection Douglas Building 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000
Findings Of Fact The following findings are based on the uncontested facts alleged in Petitioner's Motion For Summary Recommended Order and from the Final Orders issued in Bayshore Homeowners Association v. Department of Environmental Regulation and Grove Isle, Inc., Case Nos. 79-2186, 79-2324 and 79-2354. On December 29, 1980 DER entered a Final Order on the application of Petitioner for a 90 slip marina in Biscayne Bay, Florida. The Order denied the permit because Grove Isle had not demonstrated that the project is "affirmatively in the public interest" and because the applicant had not demonstrated that it "can meet ambient water quality standards within the project area itself." In the Recommended Order on Remand the Hearing Officer had defined "existing ambient waters" to be the area in the cove between Grove Isle and the Miami mainland. The Final Order rejected that concept and held if any waters others than those contained within the immediate project site were to be considered as ambient, Petitioner must request a mixing zone as part of its application. See Section 17-4.242, (1)(a)2.b. and Section 17-4.244, Florida Administrative Code. By a letter received at the Department of Environmental Regulation on May 20, 1981, Grove Isle reapplied for the boat dock permit which was the subject of the foregoing proceedings. Petitioner's application, which was in the form of a letter from counsel, stated: May 18, 1981 Mr. Larry O'Donnell Department of Environmental Regulation Post Office Box 3858 West Palm Beach, Florida 33402 RE: GROVE ISLE - Application for Boat Dock Dear Mr. O'Donnell: On behalf of Grove Isle, LTD, I am reapplying for the boat dock permit previously applied for by Grove Isle, LTD. Please consider this a short-form application. Your office designated a previous file number, DF 13-7956, to this matter. In conjunction with that application I am applying for a mixing zone, pursuant to Rule 17-4.244, for both the construction and operation of this marina. Please refer to your file on the previous application and incorporate said documents into this reapplication. I am submitting with this application: A scale drawing (one inch = 100') of the proposed facility. (which you have) A certified survey of the proposed mixing zone. (one inch = 100') An application fee of $20.00 A copy of the Final Order issued by Jacob D. Varn, former secretary of DER, on the previous application. A copy of the Notice of Intent previously issued for this project, dated 9/23/79. (which you have) As you will note from reading Mr. Varn's Final Order, he concluded that issuance of this permit was not appropriate inasmuch as the applicant had not applied for nor received a designated mixing zone. We do not necessarily agree with this order and have, in fact, appealed this decision to the First District Court of Appeal. However, in an attempt to keep this matter from becoming any more complicated, we have decided to reapply for the permit and to apply for a mixing zone. We do not concede that a mixing zone should be required for this project or that the facility will result in the release of any pollutants so as to significantly degrade ambient water quality. However, should this project, through its construction or operation, result in the release of any pollutants, I believe they would be limited to: Bottom sediments placed in suspension by the installation of the concrete piles used to support the docking facility during construction; Minimal amounts of oil and grease which may escape from the various vessels moored to the docks; The constituants of anti-fouling paint which may be applied to the hulls of the various vessels moored at the docks. Turbidity will be controlled by the use of curtains during construction. If lowered water quality occurs at all in this project it would only occur within the designated mixing zone, as per Rule 17-4.242 (2)(b) F.A.C. Please advise me should additional information be needed to process this re-application. Yours truly, /s/ KENNETH G. OERTEL On June 19, 1981, DER sent a "completeness summary letter" to Petitioner which requested the following information: Your project is in Outstanding Florida Waters. Please provide the following items demonstrating compliance with Section 17-4.242, Florida Administrative Code. Please demonstrate that this project is clearly in the public interest and that this project will not result in the degradation of ambient water quality beyond the 30 day construction period. Petitioner responded by letter dated June 22, 1981 and which was received at DER on June 25, 1981. Petitioner said in pertinent part: Dear Mr. Duke: If you would check your previous file no. DF-13-7956, I believe you will find all the information you have requested has previously been provided to your office either in that permit file or through the administrative hearings held in pursuit of this application. I think it would be more fruitful if you would communicate with Al Clark, Attorney for DER, with regard to the status of this application. As I do not wish to speak on behalf of Mr. Clark, I believe you should confirm the status of this application with him, particularly in view of our attempt to comply with Secretary Varn's Final Order which suggests the application for this mixing zone. The record reflects no further correspondence between the parties until September 23, 1981 when the Department entered a Final Order Denying Application for Permit. The Order provided that: This project was reviewed previously (DF 13-7956) and was determined not to be clearly in the public interest pursuant to Section 17-4.242, F.A.C. No further evidence upon resubmittal, has been provided to clearly demonstrate that this project is in the public interest. Furthermore, the requested mixing zone exceeds that allowable pursuant to Section 17-4.244, F.A.C. and can be applied only during the construction period, pursuant to Section 17-4.242, F.A.C. During the operation of this facility ambient water quality is expected to be degraded in violation of Section 17-4.242, F.A.C. This order was entered ninety-one days after DER received Petitioner's June 22, 1981 letter.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Department of Environmental Regulation issue the permit applied for by Petitioner, Grove Isle, Ltd. on May 20, 1981 subject to the conditions contained in the Notice of Intent To Issue Permit dated October 23, 1979 which is a part of the record in Bayshore Homeowners Association et al., v. State of Florida Department of Environmental Regulation and Grove Isle, Inc., Case Nos. 79-2186, 79-2324 and 79-2354. DONE and RECOMMENDED this 12th day of February, 1982, in Tallahassee, Florida. MICHAEL P. DODSON 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 12th day of February, 1982.
The Issue The issues in this proceeding involve whether the Respondent, St. Joe Paper Company ("St. Joe"), is entitled to a "dredge and fill permit" authorizing it to construct a marina for recreational boats, containing 84 boat slips, along the eastern shore of the St. Johns River in St. Johns County, Florida. Embodied within that general consideration are issues involving whether St. Joe, in the construction and operation of the marina, can comply with water-quality parameters embodied in Chapter 17- 3, Florida Administrative Code, for Class III waters of the State, Section 403.918(1), Florida Statutes, as well as the public interest standards of Section 403.918(2), Florida Statutes, and the standard concerning "cumulative impact" embodied in Section 403.919, Florida Statutes.
Findings Of Fact The applicant, St. Joe, seeks to construct and operate a recreational boat marina, consisting of a single, main pier, 12 feet wide and extending some 850 feet waterward in a westerly direction from the shoreline of the east bank of the St. Johns River in St. Johns County, Florida. The main pier will join a terminal pier extending approximately 575 feet in a general north/south direction parallel to the shoreline of the St. Johns River, perpendicular to and abutting the longer main pier. Extended in a landward or easterly direction from the terminal pier structure will be four (4) individual "finger piers" ranging from 119 to 305 feet in length. Located along the individual piers and along a portion of the main pier near the waterward end of it will be 84 slips for recreational-type boats. Additionally, a breakwater system will be suspended along the outer perimeter of the terminal pier and northernmost and southernmost individual piers in order to reduce wave action and its effect on boats in the interior of the marina. Additional details concerning the marina design and operation are contained in the findings of fact below. The Site The site of the proposed marina is on the eastern shore of the St. Johns River in St. Johns County, Florida. At that point, the St. Johns River is almost two miles wide, being approximately 10,000 feet from shoreline to shoreline. The proposed marina site encompasses approximately 1,100 linear feet of river bank frontage. All of the adjacent upland property is owned by St. Joe, and St. Joe owns extensive additional river frontage to the north and south of the marina site. The nearest properties not owned by St. Joe are located 3,500 feet to the north of the site and 1,500 feet to the south of the site. The site is located approximately two miles north of Hallowes Cove, a relatively pristine, diverse and productive marine habitat. The site is characterized, landward of the terminal end of the pier and waterward of the upland, by an unvegetated "near shore area or tidal zone" which extends approximately 50 feet from the mean high-water line of the river to the mean low-water line. Waterward of this zone and extending to a depth of approximately two feet is a system of grass beds, (vallisnerida), commonly known as "tape grass". The grass beds extend approximately 200 to 250 feet from the shoreline. Waterward of the grass beds is an unvegetated area with a gradual slope to a depth of approximately six feet. From the six-foot contour of the river bottom, a relatively precipitous slope begins, extending to depths which exceed 19 feet. In this zone, there are no grass beds. Further waterward and extending beyond the most waterward extent of the the marina site, the river bottom rises somewhat to depths of 13 feet, 12 feet and 11 feet, in the direction of the center of the river. The river bottom substrate in the area of the marina is composed primarily of sand. This includes some shell and other coarse materials, with minor amounts of silt. In fact, organic silt is a very small portion of the bottom sediments, consisting, at a depth of four and one-half feet, of less than 1% silt and at a depth of 15 feet of less than 6% silt content. The present water quality prevailing at the marina site is good, and the benthic habitat in the general area is healthy and diverse. The most landward boat slips proposed at the marina will be located at a distance of approximately 275 feet from the most waterward extent of the grass beds. These most landward slips will be located in depths of approximately eight feet. Access to the marina will be from the north and south in defined channels marked on the west by the end of the individual piers and on the east by channel markers located at the depth contour of minus six feet. That is, the six-foot depth will be the most shallow portion of the channel marked by the channel markers, so that boats will not be permitted to navigate the shallower portion landward of the channel markers insofar as the marina's enforcement program can insure that. The approximate width of the northern channel is 75 feet, and the width of the southern channel is 50 feet. Due to the precipitous drop in depth beyond the contour of minus six feet, the average depth of the channels is 10 to 12 feet. The majority of the boat slips, as well as the basin of the marina, will be located in depths of between 10 and 18 feet. The consultant and expert witness who designed the marina, Erik Olsen, established that the length of the main pier and the location of the most landward of the boat slips and the location of the channel markers are all part of a design and plan intended to insure that marina and boat activity within the marina occur well beyond the extant grass beds and waterward of depths of six feet, to insure that no damage to the grass bed habitat area is occasioned by propeller scouring, "prop-wash", or grounding of boats. Other design measures are also intended to preclude boaters from entering the shallow depths and grass bed areas. Two tiers of signs will be located between the marina basin and the most waterward extent of the grass beds. First, regulatory buoys and signs are proposed to be located at the contour of minus four feet and will establish a "manatee protection zone" landward of that contour. The evidence reveals, however, that a safer contour for the manatee protection zone boundary to be established by the applicant would dictate placing the regulatory warning signs concerning the manatee protection zone at the same contour, minus six feet of water, where the channel markers will be located. This is because the marina will serve boats of up to 4.5 feet in draught. Secondly, a tier of signs will be located approximately ten feet waterward of the most waterward extent of the grass beds warning boaters that aquatic grass beds exist landward of the signs and that prop dredging and boat operation is prohibited. Such warnings at the locations found above should be mandatory conditions to any grant of the permit. A specific, agreed-upon condition is already in the draft permit issued by the Department prescribing the size and lettering of these signs and other design details. A railing will extend, as proposed by the applicant, along the main pier between the slips and the shoreline to discourage boaters from mooring along the main pier, landward of the slips. The evidence establishes that in order to more adequately insure protection of the manatee habitat area and the grass beds, a mandatory condition in boat-slip rental leases should be inserted to absolutely prohibit boaters from mooring along the main pier, landward of the boat slips. Because of the currents and significant water depth prevailing at the marina site, the marina construction will require no dredging nor will operation and maintenance of the marina require any dredging on a continuing basis. Additionally, in the interest of protecting water quality, no fueling facilities or boat fueling will be permitted at the marina at all; and the grant of a permit should be mandatorily conditioned on this basis. Neither will any boat maintenance or repair be permitted at the marina, including no hauling of boats or scraping or painting of boat bottoms. This condition should be clearly pointed out to users of the marina by appropriate warning signs regarding the prohibition against boat maintenance and repair, including warnings concerning the proper methods of disposal of used oil and other petroleum products. The marina will feature pump-out facilities for boat heads and bilges. The pump-out facilities will consist of a central pumping system in which waste is removed from the boats, transported by pipeline to an upland, central waste water collection and treatment system. No holding tanks or other storage of wastes will be located at the piers. The pump-out facility will serve not only the boat heads but also boat bilges in order to prevent contaminants, such as oil and boat fuel from entering the State waters involved. The piers will feature trash collection containers of appropriate number, size and location on the piers so as to provide convenient trash disposal for each boat slip. The piers will also feature plastic modular dock boxes to preclude boaters from randomly storing materials and equipment on the piers. No fish cleaning will be permitted on the piers at all, but rather must be accomplished on the uplands, with disposal of related wastes in the upland collection system. A "no wake" zone will be established in an area extending 500 feet north and 500 feet south of the marina. The "no wake" zone will be marked pursuant to requirements of the Florida Marine Patrol. The marked "no wake" zone should also extend waterward of the farthest waterward extent of the marina, as well as 500 feet north and south of it. Only private, recreational boats will be moored at the marina. All commercial boats will be prohibited. The marina will serve a Yacht Club to be developed by St. Joe in conjunction with the marina. Only members of the Yacht Club and their guests will be permitted to use the marina. This will assist with enforcement of the various conditions on marina operation and maintenance by the owners as to the boat-slip lessees and their guests. This and all other conditions should be enforced by mandatory restrictions in the boat-slip leases. Likewise, the applicant has agreed to permit no "liveaboard" boats at the marina in order to avoid the possibility of sewage or other contaminants entering the State waters from liveaboard boats. The upland facilities will include restrooms, and signs should be appropriately placed on the piers to advise boaters and boat owners and operators of the availability of restroom facilities. The marina will not feature fueling facilities; however, St. Joe will maintain pollution containment supplies and equipment at the marina sufficient to contain any potential fuel or other petroleum spills from catastrophic events, such as the rupture of a boat fuel tank. Expert witnesses for St. Joe established that a "management and operational plan" designed to enforce the provisions enumerated above will be enacted by the applicant. The management and operational plan includes three mechanisms of enforcement: Warning signs. Boat-slip lease agreements which must incorporate all restrictions found to be necessary herein. These will contain an enforcement provision providing for mandatory eviction from use and lease of the marina facilities for any breach of those conditions by lessees or their guests. Management personnel will be employed on the marina property to enforce all restrictions and conditions designed to insure environmentally-safe operation and maintenance of the marina, and such personnel should be employed during all operating hours of the marina, not just during daylight hours, as proposed by the applicant. Signs will be posted at conspicuous locations at the marina and at the upland facilities of the Yacht Club informing boaters of the marina rules and prohibitions. The signage will be visible to Yacht Club members and their guests using the marina, and members' guests will be required, upon mooring at the marina, to register and to review the rules and prohibitions. Boat-slip lease agreements at the marina will incorporate these marina rules and prohibitions. Under the lease agreements, a violation of the marina rules or prohibitions by a member or guest will be considered a breach of the lease and will result in revocation of the lease and removal of the member's boat from the marina. A dock master will be employed at the marina to supervise the operation and maintenance of the marina and will be assisted by dock hands and other personnel in order to see that the conditions and restrictions referenced herein are enforced. The applicant has proposed such personnel being employed during daylight hours. However, in order to insure that the standards for operation and maintenance of the marina and boats using it will be enforced so as to avoid water-quality violations and violations of the public interest parameters delineated below, the permit grant should be conditioned upon such personnel being employed during all operating hours of the marina, whether daylight hours or not. If this is accomplished, the enforcement mechanisms outlined in the management and operational plan will reasonably insure enforcement of the marina's rules, prohibitions and conditions on any grant of the permit and likewise reasonably insure that water-quality and public interest standards are not violated. Upland Facilities The upland and Yacht Club facilities to be developed in conjunction with the marina will be located on approximately seven acres adjacent to the marina site. The Yacht Club and related facilities will include a clubhouse, parking, and a storm water treatment system which will serve the upland facilities. St. Joe has obtained a conceptual permit for the management and storage of surface waters for the proposed upland improvements, including the Yacht Club. It will also seek a permit for the storm water treatment system, itself. St. Joe, through its consultants, has investigated and opined that the installation of the proposed upland facilities are feasible and can comply with applicable regulatory criteria and is pursuing the necessary permits and approvals from local governments and state agencies. It will insure that all such is accomplished prior to initiation of construction of the Yacht Club facilities. The precise configuration and design of all upland facilities will be dictated by applicable local ordinances and the requirements of State regulatory agencies. Marina Impacts The applicant/Respondent and the Petitioners are in essential agreement, through the testimony of their witnesses, regarding the general potential impacts which may be posed by marinas in a general sense, when located in proximity to environmentally-sensitive areas. Concerning anticipated impacts of this marina at the subject site, however, St. Joe presented the testimony of three expert witnesses, as well as a hydrographic study. It was thus established that violations of the pertinent water-quality statute and rules and the public interest standards contained in the statute referenced herein will not be violated. The Petitioners, although presenting both lay and expert testimony regarding the water quality and habitat type and quality in the general area of the site and the general impacts that can be caused by marinas in such areas, presented no expert testimony or studies regarding the anticipated impacts of this particular marina, as designed and configured by the applicant, on the subject site and aquatic habitat. Water Quality Considerations Marinas are potential sources of pollutants which may adversely impact water quality. Different sources at a marina may generate different pollutants; and in this case, testimony addressed these potential pollutant impacts. The totality of the expert testimony taken at hearing establishes that the marina will not likely cause a violation of applicable water-quality standards. One witness for the Petitioners, Bill Watkins, was accepted as an expert in water quality. In describing potential impacts of the marina, however, he only opined that there "could be some effect on water quality"; however, he did not specifically establish adverse effects on water quality which could be anticipated or reasonably expected regarding violations of applicable standards. Mr. Watkins acknowledged: "As to whether or not that degree of pollution, and that's what we're talking about, degree of impact, would be something that would be, have a significant degradation effect, I could not answer without further site specific studies." Mr. Watkins further described the type of site specific information which would be required for him to make a proper assessment of water-quality impacts, including hydrographics and the nature of the sediments existing at the site. Other witnesses for the Petitioners similarly declined to opine regarding violations of the water-quality standards because site specific information was not available to them. Dr. DeMort, for example, explicitly declined to offer an opinion regarding water-quality violations. The opinions and testimony of the expert witnesses on water quality presented on behalf of St. Joe, as well as by the Department, are accepted in establishing that no water-quality violations by the construction and operation of the marina are anticipated. The reasonable assurance that water-quality violations will not occur through the construction and operation of the marina is illustrated by the unrefuted evidence concerning the hydrographics by which the site is characterized. A knowledge of site hydrographics is necessary to accurately determine potential water-quality impacts. A hydrographic study was prepared by St. Joe through the auspices of its consultant, Olsen Associates Incorporated. The experts who prepared that study testified on behalf of St. Joe at hearing, and a Department witness who reviewed the study testified by deposition. None of the Petitioners' expert witnesses addressed the subject of site hydrographics other than to note that they were an important consideration. Mr. Buckingham was accepted as an expert witness in the area of marine engineering with emphasis on hydrographics. He testified regarding the hydrographic study prepared and submitted by St. Joe. The study involved the collection of data at the site, including the gauging of water surface elevations over a two-day period in December of 1988; the comparison of those elevations to predicted elevations based upon historical data; a measurement of current velocities at the site; a dye study to assess the flow regime at the site; and the gathering of depth soundings and sediment samples to confirm the bathymetry and nature of bottom sediments at the site. The hydrographic study also involved the analysis of the data collected at the site. Hydrographics at the site are composed of two components, the transport of a pollutant by advective currents and the dispersion or diffusion of a pollutant within the water column. The physical transport by advective currents dominates the hydrographic circumstance prevailing at the marina site. A pollutant introduced at the site is more likely to be physically transported away from the site, in addition to being merely dispersed through the water column at the site. This is because of the relatively high current velocities prevailing. Both the transport and dispersion components were analyzed in the study to determine the time and distance necessary to reduce an initial concentration of a hypothetical pollutant to 10% of its initial concentration. A pollutant introduced at the site would be reduced to 10% of its initial concentration in less than seven minutes and within 400 feet of the site on the ebb tide and within 300 feet of the site on the flood tide. Moreover, the "plume" of this hypothetical pollutant would occur in a longshore direction parallel to the shore, as opposed to a direction toward the shore and would be of comparatively narrow width (approximately 30 feet). The hydrographics of this site are such that a complete water exchange will occur in 20 to 30 minutes at any point during the tidal cycle. The evidence thus demonstrated that the site is extremely well flushed by tidal currents. In his deposition, Ken Echternacht, of the Department, testified that data in the hydrographic study was realistic in his experience and that he had no questions or concerns regarding the data and methodology used to confirm that data. In addition to Mr. Buckingham's testimony and the study, itself, the testimony of Dr. Echternacht established that flushing is of no concern and is thoroughly adequate at the site. Dr. Echternacht is the Department's hydrographic engineer, whose function is to review all dredge and fill permit applications which may have impacts upon the hydraulics of surface water systems. He has reviewed approximately 1,500 dredge and fill permit applications. His testimony and that of Mr. Buckingham is accepted, as is that of other Department expert witnesses in establishing the excellent flushing characteristics of the site and that the construction and operation of the marina will not adversely affect the present hydrographic situation at the site, as that relates to establishing that no water quality violations will occur. All marinas are potential sources of pollutants. The first to be addressed involves the installation of the pilings themselves during the construction of the marina. This is a potential source of turbidity. Turbidity involves the suspension of bottom sediments and substrate material in the water column, which can pose, among other problems, the retardation of light penetration through the water column which can have an adverse impact on photosynthesis in marine grass beds. In extreme cases, it can cause the destruction of grass beds through killing of the grass by lack of adequate light penetration, as well as the smothering effect of sediments being deposited upon grasses. The method to be used by St. Joe in installing the pilings will be by "jetting" them into the bottom of the river initially and then driving the pilings into the river bottom to the required depth to support the piers. Witnesses for St. Joe and the Department established that this method will constitute an adequate safeguard to be employed during construction to minimize any turbidity. Any temporary or local turbidity caused by the installation of the pilings will be transitory and will pose no significant water-quality violation; however, turbidity curtains will, be employed, if necessary, by the applicant to control any such turbidity during construction. Another potential source of turbidity at a marina involves the dredging, washing or disturbance of the river bottom caused by boat propellers or boat keels. The evidence demonstrated that the risk of such "prop dredging" or wash at this marina will be negligible due to the design features and conditions at the site, including the channels and channel markers, and particularly by the depth of waters prevailing at the site. The marina basin and boat slips are located in water of sufficient depth to prevent prop dredging or wash. The =average depth of the entrance channels is between 10 and 12 feet. Maneuvering within the marina basin will occur in depths of 10 feet or greater. Although the most landward boat slips are located in depths of approximately eight feet, the average depth within most slips is approximately 10 to 12 feet. These depths are based upon the bathymetric survey of the site and confirmed by random soundings performed during the course of the hydrographic study in evidence. Further, these depths are "mean low water" depths. Mean low water reflects the "lowest expected level" within a 29-day tidal epic. The "mean lower low" level is the lowest expected level over the course of a year. That level prevailing at the site, according to the study, is 0.1 feet lower than mean low water. The maximum draught of boats expected to be moored at the marina is 4.5 feet. Thus, the depths in the marina will allow ample clearance between propellers and keels and the river bottom. The required clearance between boat bottoms and propellers and the river bottom can further be assured by proper placement of boats in the boat slips in the leasing process and in the assignment of boat slips to casual, temporary users of the marina. In other words, the larger boats will be assigned to the deeper, more waterward slips. Other measures include warning signs, which should be placed along the six-foot depth contour, along the landward edge of the entrance channels and beyond the waterward extent of the grass beds. This will insure that boaters do not stray into shallow-water, aquatic habitat areas. A second factor in determining the potential for prop dredging at the marina is the nature of the sediments themselves. Four witnesses, including those testifying for the Department and for the Petitioners, established that the sediments at the site are primarily sand-based, with minimal organic silt content. The sandy nature of the sediments minimizes the potential for turbidity caused by prop dredging or prop washing (hydraulic currents created by propeller operation) because sand, by its density, mass and weight, tends to settle out to the bottom much quicker if it is suspended in the water column. Even if prop dredging did occur at the marina, generating turbidity, the high flushing characteristic of the site would quickly transport and disperse any such turbidity and render it undetectable and likely prevent its deposition on the grass beds. A potential source of pollutants at a marina is boat fuel. Expert witnesses for the Department and the applicant established that the design and operational features of the marina, primarily the absence of any fueling facilities, will minimize or eliminate the potential for pollutants generated by fueling operations. Another potential source of pollutants at a marina is waste from boat heads and bilges generated by flushing boat heads or pumping out of bilges with bilge pumps. Expert witnesses for St. Joe, as well as the Department, established that the design and operational features with which this marina will be characterized will minimize or eliminate the potential for such pollutants to be generated because liveaboard boats will be prohibited, and the pumping out of heads and bilges will also be prohibited because of the conditions agreed to by the applicant for a grant of this permit. Another potential source of pollutants at a marina is the use of anti-fouling paint used on the bottoms of boats and the periodic scraping and repainting of boats. Expert witnesses for the Department and the applicant established that the operational features and design of this marina will minimize the potential for pollutants from this source because boat painting, sanding, and scraping and other operations attendant to boat painting will be absolutely prohibited at the marina. Finally, another potential source of pollutants would be trash and garbage materials. The potential for pollution from this source will be minimized by the use of trash containers and dock boxes located at frequent intervals around the piers and boat slips, as well as the instructional signs to be placed on the piers and slips by the applicant and the publication of marina rules in order to inform boat operators and guests of the necessity to dispose of trash in the proper containers. It has thus been established that the design and operational characteristics of the marina and conditions to be imposed thereon will minimize or eliminate the potential for pollutants to be generated and placed in the surface waters at the site. The marina will not occasion violations of applicable water-quality standards. Any pollutants which might be deposited in the surface waters at the site will be quickly transported and dispersed so as to be undetectable at the marina or in the vicinity of the marina because of the critical role played by the hydrographics prevailing at the site. Public Interest Impacts Much of the testimony at hearing regarding impacts upon the various public interest standards, including wildlife and habitats, focused upon the grass beds, and the benthic communities prevailing in deeper water at the site, as well as the fact that the site is used by manatees. Dr. Quinton White was accepted as an expert in biology and biological impacts of marina construction and operation. He testified on behalf of the applicant. His testimony and that of other expert witnesses offered by St. Joe and the Department established that there would be no adverse impact on benthic communities and organisms, including manatees, caused by the construction and operation of the marina. The Petitioners called expert witnesses on the issue of impacts on wildlife. Mike Allen, a Florida Game and Fresh Water Fish Commission staff member, testified that he was not really qualified as an expert in fisheries or benthic communities but, rather, in terms of terrestrial species which are not involved in this proceeding. Lawson Snyder, another Florida Game and Fresh Water Fish Commission staff member, was accepted as an expert in fisheries biology on behalf of Petitioner but testified that the marina's impacts upon fish and wildlife would not be detectable. Jim Valade, a Florida Department of Natural Resources staff member, was also accepted as an expert in marine biology, including fish and manatees, but testified that the permit applicant has taken steps to protect manatees in virtually all aspects and that his department's concerns regarding the safety of manatees have been adequately addressed by the design and proposed operation of the marina. Bill Watkins, a St. Johns River Water Management District staff member, was accepted as an expert in biology, but testified that the design of the marina provides the grass beds "a fair degree of protection" and declined to opine that the marina would have any adverse impacts upon wildlife or fish. Finally, Dr. Carol DeMort, in her deposition, specifically declined to render any opinion regarding adverse impacts upon wildlife or fish. Thus, the evidence adduced by the Petitioners at hearing did not rebut the evidence introduced by the applicant that the marina will have no detectable impacts upon wildlife or habitats involved in the vicinity of the site St. Joe introduced evidence concerning impacts from shading upon grass beds by the marina structures themselves and from turbidity "washed" onto, the grass beds by motorized boats maneuvering in the marina basin. Expert testimony was adduced that established that shading caused by the widest pier, that is, the main pier with a width of 12 feet, would have no adverse impact on the grass beds due to shading. That testimony was unrebutted and is accepted. Two expert witnesses for St. Joe, a marine engineer and a biologist, as well as a Department witness, established that, even assuming that turbidity was generated by propeller action in the marina basin, the turbidity resulting from prop wash would not be transported 275 feet from the marina basin offshore to the :grass beds at the inshore area. They attributed those opinions to the nature of the sediments involved which are not readily suspended, the flushing at the site, the distance between the basin and the grass beds, and the typical extent of prop wash from boats expected to be used at the marina. The Petitioners presented two witnesses, who testified regarding the impacts of prop wash. Mr. Allen, an expert in upland terrestrial species, testified regarding the potential for deposition of sediments on grass beds but also acknowledged that the hydrographics at the site, the distance between the marina basin and the grass beds and other protective measures would minimize this potential. One lay witness for the Petitioners testified to the effect that if a "handful" of boat owners in the marina violated the "no wake" restrictions and accelerated their boats in violation of those restrictions, they would cause turbidity to be placed upon the grass beds. His testimony was contradicted, however, by a marine engineer, who testified that prop wash is a function of many parameters (e.g., the RPM of the engine, the horsepower of the engine, the draught of the boat, and configuration of the propellers, etc.). He established that it would not be reasonable to expect prop wash extending twice the length of a boat. Regarding impacts upon benthic communities at the site, the applicant introduced expert testimony which established that the benthic communities in that vicinity of the marina, including the grass beds, fin fish, shellfish, and other organisms, will not be adversely impacted by the construction and operation of the marina in light of the safeguards which would be imposed upon the permit, as delineated herein. This is primarily due to the absence of significant concentrations of pollutants to be expected and the hydrographics prevailing at the site as that relates to the unlikelihood of boat grounding, prop dredging, and prop wash suspending pollutants and turbidity and depositing them on benthic community habitat areas. Only one of Petitioners' witnesses, Dr. DeMort, testified in her deposition concerning potential impacts upon benthic communities. Dr. DeMort made it clear, however, that she had conducted no investigations and studies necessary to enable her to render an expert opinion on the impacts upon the benthic communities prevailing at the site which might be caused by the marina's construction and operation. Her testimony in this regard only related to marina installation and operation in general and was not related to the specific design characteristics and proposed operational parameters of the subject marina. Manatees are an endangered species. There is much concern about their welfare with regard to the proposed project because all parties acknowledge that the site and the shoreward grass bed areas, particularly, are frequented by manatees, particularly for summer foraging. Manatees tend to forage in shallow waters and associated grass beds. Boats pose definite hazards to manatees and cause significant manatee deaths each year due to impact from boats, as much as 15% to 30% of the known population. In response to this hazard, the U.S. Marine Mammal Commission has recommended that grass beds be protected and that establishment of protective or "no wake" zones in manatee foraging areas be accomplished. In light of such restrictions voluntarily agreed to by St. Joe and its expert testimony in this regard and in light of the manatee education and awareness measures proposed by the applicant, it has been demonstrated that the marina will not have any negative impact on the manatee population in the area. The Petitioners' only expert witness concerning manatees, Jim Valade, indeed, opined that the marina had taken steps to protect manatees "in virtually all aspects". In this connection, the design features in the management and operational plan discussed herein and proposed by the applicant embodies measures to address potential impacts upon manatees which frequent the marina site. These include manatee awareness signs to be posted at the marina; and an additional specific condition has been agreed upon by the Department and the applicant which specifies the size, lettering and other details of the warning signs, and the location of them within the marina, all of which will be included in a plan to be submitted to, reviewed, and approved by the Florida Department of Natural Resources. Additionally, a permanent educational display will be located at the Yacht Club informing boaters who frequent the facility of the presence of manatees in the area and the need to minimize the impact of boats upon manatees. During construction, if a manatee is sited within 100 yards of the marina site, construction activities will cease and not resume until manatees have left the area. A handbook will be prepared concerning manatees and the effect on them of boat operation, which will be distributed to employees of the facility and to Yacht Club members and guests. This requirement and the review of it by Yacht Club members and guests will be an integral requirement in the terms of the slip leases. Additionally, no docking facilities, pilings or cleats will be located along the portions of the piers not containing boat slips in order to discourage boaters from attempting to moor at those locations, which will reduce the number of boats frequenting the marina, as that relates to manatee safety. This portion of the St. Johns River functions as a highly productive juvenile fish nursery and sports fishing area. Therefore, an examination of the marina's potential impacts upon marine productivity, fishing and recreation in the area is an important consideration in this proceeding. The discussion of this potential impact involves the same issues discussed in connection with impacts upon water quality and wildlife habitat; namely, the generation of pollutants and the impacts upon the grass beds and benthic communities directly by boat operation itself. Unrefuted testimony adduced by the applicant and the Department has established that impacts upon the fish population and upon marine productivity, fishing and recreational values will not be adverse. No deliterious effect is likely to be occasioned the fisheries and fish habitat and the habitat of other aquatic organisms in terms of juveniles or adults or to the sport fishing values of the area in which the marina will be located. Indeed, the marina structures and the shade and concealment offered by moored boats will provide additional habitat for juvenile fish, as well as provide an additional source of food because of the "fouling communities" of life forms which will be expected to grow on the pilings. These will serve as food for juvenile fish and some species of adult fish which, in turn, will enhance the food supply of predatory fish operating at an upper level in the food web. The boats and structures themselves also will operate as a source of protection for certain fish populations from predators. The Petitioners produced a fisheries biologist as an expert witness, who testified in this regard; but he acknowledged that he did not know whether noticeable impacts on conservation of fish, marine productivity and recreational values will be caused by the installation and operation of the marina. He testified in a general sense that he feared some negative impacts might result but did not feel that any such impacts would be detectable based upon testimony he heard and deferred to, including testimony that the littoral zone would not be impacted by the marina to any significant degree. He ultimately opined that the marina would likely have little impact on sports fishing. The other witness produced by the Petitioners concerning impacts upon fishing and recreational values was unable to render any expert opinion, by her own admission, because she had conducted no studies or otherwise been provided information regarding the design and proposed operation of the marina. Consequently, the testimony adduced by the applicant as to these parameters is accepted; and it has been established that the marina will not adversely impact fisheries, fish conservation, aquatic habitat, sport fishing, recreational values and marine productivity in the area involved at the project site. Regarding potential impacts upon the public health, safety and welfare and property of others, the applicant and the Department adduced expert testimony that no adverse impact regarding these interests will occur. The testimony of Petitioners' experts similarly establishes that the marina would not pose safety hazards or would otherwise give rise to any noticeable impacts upon the public health, safety, welfare and property of others. Regarding potential impacts upon navigation or the flow of water, St. Joe and the Department introduced expert testimony to establish that the marina would not adversely impact navigation or the flow of water, and it is so found. The Petitioners' introduced no evidence regarding this subject. Regarding potential impacts upon significant historical and archaeological resources, the applicant and the Department introduced evidence that no adverse impact as regards these resource parameters will occur. Although one of the Petitioners, in her testimony, speculated that the marina could "detract" from the William Bartram scenic highway, she was unable to specify how the marina would impact the highway or to what extent the highway was a significant, historical or archaeological resource. It is found that no such adverse impact on the William Bartram scenic highway will occur. Cumulative Impact Regarding cumulative impacts, the applicant and the Department introduced evidence that the marina would not give rise to impacts which, cumulative with the impacts of other marina facilities, would be significant. The evidence establishes that there are six marinas within four miles of this marina site; two upriver, and four downriver. Due to the hydrographic circumstances in the area and the distance of the other marinas from this site, it has been demonstrated that the addition of this marina to the area will not result in any adverse cumulative impacts. Mr. Mike Allen, the expert in upland terrestrial species (not involved in this proceeding), referenced in his testimony the cumulative impacts he feared on sports and commercial fishing. Mr. Allen made it clear, however, that his reference was not to cumulative impacts caused by the marina and existing marinas but, rather, to impacts which could be brought about by many such future facilities located in this particular area. The evidence does not reflect, however, that any other marinas are conceptually contemplated or are the subject of other permit applications for this area for the future. It is thus found that no significant adverse cumulative impacts will be occasioned by the installation and operation of the subject facility.
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 St. Joe Paper Company for the dredge and fill permit at issue be granted, provided that the terms and conditions enumerated in the Department's Intent to Issue, in evidence as St. Joe Exhibit 9, and accepted by the applicant, as well as those conditions found in this Recommended Order to be necessary and supported by the evidence, are incorporated in the permit as mandatory conditions. DONE AND ENTERED this 26 day of October, 1990, in Tallahassee, Leon County, Florida. P. MICHAEL RUFF Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 29 day of October, 1990. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 89-5053 Applicant's/Respondent's Proposed Findings of Fact 1-53. Accepted, but are subordinate to the Hearing Officer's Findings of Fact on the same subject matter, particularly in those several instances where conditions on the grant of the permit have been recommended to be modified somewhat by the Hearing Officer in light of the totality of the preponderant evidence presented. Rejected, as unnecessary. Accepted. Respondent DER's Proposed Findings of Fact The Department submitted no proposed findings of fact but, rather, adopted those submitted by the applicant/Respondent. Petitioners' Proposed Findings of Fact Petitioners, Hoffert, presented no proposed findings of fact but, rather, a letter in the nature of final argument which has been referenced and discussed in the above Preliminary Statement to this Recommended Order. Petitioners, Cornwell, submitted a post-hearing pleading; but it contained no specific, separately-stated proposed findings of fact, which can be separated from their mere recitation and discussion of testimony in evidence and arguments such that coherent, specific rulings could be made. Petitioners, Cornwell's post-hearing pleading did not conform to the instructions given to them by the Hearing Officer at the conclusion of the hearing concerning the appropriate manner for submission of proposed findings of fact, and they were submitted late. They have been considered in the rendition of this Recommended Order, however, in spite of the fact that they were filed in a tardy fashion. COPIES FURNISHED: Dale H. Twachtmann, Secretary Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, FL 32399-2400 Daniel H. Thompson, Esq. General Counsel Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, FL 32399-2400 T. R. Hainline, Jr., Esq. ROGERS, TOWERS, ET AL. 1300 Gulf Life Drive Jacksonville, FL 32207 William H. Congdon, Esq. and Joanne Barone, Esq. Department of Environmental Regulation Twin Towers Office Building Room 654 2600 Blair Stone Road Tallahassee, FL 32399-2400 Barbara Davis Winn 3448 State Road 13 Jacksonville, FL 32259 Mary and Irv Cornwell 2652 State Road 13 Switzerland, FL 32259
Findings Of Fact Permitting History This development was originally known as North Largo Yacht Club and was owned and developed originally by the Largo Brand Corporation. That developer and this development received Development of Regional Impact approval from the county commission of Monroe County in accordance with Chapter 380, Florida Statutes in 1974. In 1975 that developer received various permits and water quality certifications authorizing construction of the "Atlantic Marina" (the existing marina) from both the Florida Board of Trustees of the Internal Improvement Trust Fund and the United States Army Corps of Engineers. The marina was ultimately constructed and no further governmental approvals are required for the present Respondents to make full use of the existing marina which has an authorized boat capacity of 363 boat slips, which are situated around long piers extending from the shore of the marina basin out into the marina basin. Sometime after construction of the marina, the mortgagee, through foreclosure, obtained title to the property from Largo Brand Corporation which has since dissolved, ultimately conveying it to City National Bank as trustee under a Florida land trust. City National Bank filed the present application in its original form but in February, 1984, conveyed the property to Port Bougainville, Inc. and Port Bougainville Enterprises, Inc., the present Applicant/Respondent who succeeded City National Bank as the real parties in interest prosecuting the present permit application, as modified. The permit application as it presently exists is the result of various modifications suggested by the Department of Environmental Regulation and agreed to by the present Applicant/Respondents, which had the effect of causing the Department to change its position from one of denial of the permit to one of approval, by issuance of a Notice of Intent to grant the permit in June of 1984. The Applicant/Respondent's original decision to apply for the new permit was based upon aesthetic considerations and a desire to redesign and change the theme of the development and the marina itself. It is thus proposed that the boat-mooring facilities be moved to the periphery of the basin and the piers or docks extending out into the basin be removed. This would create an open body of water in the basin, more in keeping with the "Mediterranean Village Harbor" theme of the entire development. The original application filed in early 1984, called for realignment of the docks rather than removal, and the creation of various baylets or inlets along the access canal and contained no proposal for shoaling the existing boat basin. The Department used this original proposal as a basis for its Intent to Deny the Permit Application since it considered those modifications unacceptable in terms of the likelihood that it might degrade water quality or at least not improve the ambient water quality then existing in the marina basin and entrance canal. The Respondents acceded to the demands of the Department, employed additional consultants and redesigned the project, including the creation of a sophisticated hydrographic model by which, and through which, the Respondents ultimately proposed (with the Department's agreement) to revise the application as follows: Shoal the entire basin and canal system to no more than -6 Ft. mean low water; widen and sculpt the access canal on the west side and install solid flow baffles on the east side so as to create a sinusoidal or curving configuration in the canal to improve mixing of the water in the canal and basin system; remove the existing docks and construct new docks around the periphery of the basin so as to provide a decreased number of boat slips and capacity for a total of 311 boats; install one bubble screen surrounding the fueling facilities to contain oil and fuel spills and another at the entrance of the access canal where it opens into the Garden Cove Channel so as to prevent organic materials from outside the canal and basin system from being carried into it with tidal currents and wind; installation of "batter boards" along the length of the waterward or easterly and southeasterly side of the access canal so as to protect the mangroves along that side of the canal from the effects of wake energy caused by boats. After further "free-form" review, investigation and negotiation, the Department required, and the Respondents agreed to make the following additional modifications to the marina development plan: Shoal the north end of the basin to -4 ft. mean low water; slightly reconfigure the access canal and install an additional wave baffle on the eastern periphery of the canal in order to improve circulation in the western portion of the boat basin; relocate the proposed fueling facilities more toward the rearward center of the basin in order to further isolate them from the outstanding Florida waters lying at the outward, "seaward" end of the project; provide funds necessary to more adequately mark the Garden Cove Channel in accordance with the requirements specified by the Department of Natural Resources so as to further ensure that boat traffic and possible propeller damage could be prevented to the marine grassbeds and other marine life on either side of the Garden Cove Channel; install tidal level gauges at the mouth of the Garden Cove Channel which would show boaters wishing to use the channel and access canal the current, minimum depths prevalent in the channel and canal; grant to the Department a "conservation easement" binding upon the Respondent which would provide the following: That no hydraulic connection be made from any of the upland lakes on the Respondent's property to the marina, to the canal, to the channel or any other state waters; an agreement not to employ boat lifts that would require a dredge and fill permit from the Department; an agreement not to apply for additional permits so as to increase the number of boat slips in the marina beyond the 311 presently proposed; to develop a reef management plan in conjunction with the Florida Audubon Society to include educational programs for the public as well as underwriting the installation of mooring buoys and adequate channel markers in the John Pennekamp Reef Park, the Outstanding Florida Waters (OFW) involved in this proceeding. During the time of construction of the proposed marina modifications, the entire marina will be closed and isolated from the waters of Garden Cove by the installation of a dam at the entrance to the marina access canal where it opens into Garden Cove. The dam will remain in place until turbidity resulting from the dredging, filling and construction has settled and the waters in the marina have achieved the turbidity standards required by the Department and its rules contained in Chapter 17 3, Florida Administrative Code. All the proposed modification work will be performed landward of the surveyed mean high water line. Additionally, a storm drainage system will be installed which will prevent any stormwater runoff from being deposited into the marina harbor. The stormwater runoff will be routed away from the harbor through the use of a reverse gradient around the periphery of the harbor and runoff from the adjacent real estate development will be thus routed away from the harbor into grass swales to be collected into holding areas for filtration. Ambient Water Quality in the Marina and Garden Cove Respondents tendered Dr. Earl Rich, a professor of Biology at the University of Miami as an expert in ecology and he was accepted without objection. Since 1974 he has conducted extensive studies with attendant sampling, observation and water quality monitoring in the Port Bougainville Marina. Beginning in 1983 he also performed certain chemical analyses on the water samples from the marina. Photographs taken underwater in the marina basin were adduced and placed in evidence, as were the results of the observations and tests. It was thus established that there is a dense growth of macroalgae in the marina at a depth of about six feet, although at the nine-foot level there is much less such growth. Concomitantly, the deeper holes in the marina basin exhibit a low dissolved oxygen reading and are largely responsible for the frequently occurring, low dissolved oxygen reading in the marina system that is lower than acceptable standards embodied in Chapter 17-3, Florida Administrative Code. Garden Cove itself is a shallow embayment open toward the Atlantic Ocean in a generally easterly direction, characterized by a rocky or coarse sediment bottom substrate. It is characteristic of this area that organic materials such as seaweeds and the like, are transported by currents and winds into Garden Cove from other marine areas. The underwater vegetation in Garden Cove is lush. There are extensive shallow-water marine grass beds. These vegetated areas support a large population of marine animals and fish. Dissolved oxygen is, of course, essential to the metabolism of these organisms. The two primary means for oxygen to enter the water are as a result of photosynthetic activity of marine plants and through oxygen entering the surface waters through waves and wind action, with that surface water being distributed and mixed so as to disburse the action throughout the water column. The term biochemical oxygen demand or BOD, refers to the rate at which organisms use oxygen in the water. If there are many active photosynthetic organisms, as in Garden Cove, the production of oxygen during the day, as for instance by the seagrasses in the cove, exceeds the BOD of the plant and animal community in the water body, in which case the plants contribute excess oxygen to the air. During hours of darkness, plant and animal communities in the water body will continue to consume oxygen although there will be no photosynthesis to contribute oxygen. Therefore, in an underwater community rich in plant and animal life, such as Garden Cove, the dissolved oxygen level is typically higher during the daylight hours and BOD readings will be decreased during the night, reaching a low level during the early morning hours. Frequently, dissolved oxygen readings in Garden Cove are below state standards for waters of the State under natural conditions. These low DO readings occur commonly in Garden Cove during conditions of calm wind. Indeed, Dr. Rich has measured dissolved oxygen in Garden Cove below the four-part per million state standard even before the present marina and canal were ever constructed. Since the opening of the marina there have been times when the DO readings in Garden Cove have been lower than those inside the marina itself. Hydrodynamics of the Modified Marina The proposal by the permit applicant calls for widening the access channel into the marina to approximately 130 feet by excavating upland on the western bank of the canal. The access canal will then be reconfigured during the excavation into a winding or curving fashion. That adjustment, along with the solid flow baffles to be installed on the eastern bank of the canal, will set up a winding or sinusoidal flow of tidal currents. The sinusoidal flow will induce secondary helical currents that will move water repeatedly from the top to the bottom of the canal and then back, thereby significantly improving the mixing action. The improved mixing of the waters in the canal and marina will serve two purposes: It will disperse any pollutants so as to reduce pollutant concentrations. It will disperse the oxygen introduced into the surface waters by wave and wind throughout the water column. Dr. Bent Christensen is Chairman of the University of Florida Hydraulics Lab. Using knowledge gained in hydrographic modeling as a result of work he performed in carrying out a "Sea Grant study" under the auspices of the University of Florida, Dr. Christensen designed a computer model of the proposed Port Bougainville marina and access canal by which, in turn, he designed the winding access canal which will emulate nature in producing a turnover of water induced by current velocities and canal configuration, rather than by temperature differences in water. The computer model takes into account tidal flows and wind-induced velocities which are important to mixing of water within the system. Using this model, Dr. Christensen was able to redesign the marina canal so as to improve water quality within that system as well as improving the quality of water leaving the system into Garden Cove. Drs. Lee and Van de Kreeke are ocean engineers who testified as expert witnesses on behalf of Petitioners. They sought to dispute Dr. Christensen's conclusion that the redesign would improve DO levels within the marina based upon their independent determination that a different design would increase flushing times for the system. Flushing, however, is a simplistic way of analyzing water quality. Flushing analysis assumes that the only means to improve water quality is to replace water within the system with water from outside the system. The Christensen model and the resulting proposed design of the marina and canal, on the other hand, improves water quality through internal mixing action. The proposed design actually reduces flushing time, but more importantly, maximizes dispersion of water within the system and along with it, dissolved oxygen. The design introduces dissolved oxygen throughout the water column in the system through internal mixing because of the sinusoidal configuration of the canal and the helical currents the canal configuration sets up. The concentration of pollutants measured by the State Water Quality Standards are, in turn, reduced through the same hydrodynamics. Dr. Van de Kreeke admitted that a key ingredient in his model was the assumption he had regarding BOD in the system, but he had no idea what the BOD extant in the Port Bougainville system might be. He also admitted that his calculations did not take into consideration the factor of wind mixing of the waters in the system and acknowledged that wind can and does play an important role in flushing and mixing the waters in marinas. Finally, Dr. Van de Kreeke admitted that he could not fully analyze Dr. Christensen's assumptions in arriving at his model and design because he did not have the information Dr. Christensen relied upon. Thus, Dr. Christensen's model and design is accepted as more credible than that of Drs. Van de Kreeke and Lee. That model and design establishes that the quality of water exiting the marina into the Outstanding Florida Waters in Garden Cove will be improved by the modifications proposed to be constructed in the marina. Impact on Benthic Communities The northerly end of the marina basin will be sloped from -6 feet to - 4 feet. This widening and shallowing of the marina basin and access channel will have the affect of promoting the growth, regrowth and welfare of the benthic communities in the waters in the marina and access canal by providing greater light penetration to the bottom of the marina. The widening will have the effect of causing a greater portion of the marina bottom to be lighted during the day since at the present time, the bank and surrounding trees shade the marina basin for substantial portions of the day. The increased light penetration will result in more photosynthetic activity by the plant life in the marina and canal such that increased amounts of oxygen will be produced enhancing the dissolved oxygen levels of the marina waters. In that connection, the Respondents' expert, Dr. Rich, has examined a number of marinas and observed very healthy benthic communities in marina harbors more densely populated with boats than will be the proposed marina. Another significant improvement in the ecological status of the present marina will be the placing of a bubble screen device across the mouth of the entrance canal. This will have the effect of preventing floating organic materials such as sargassum, from entering the marina. Marinas typically experience problems related to dissolved oxygen levels in their waters because of an accumulation of floating organic material which tends to settle to the bottom creating excessive biochemical oxygen demand in their decomposition process, thus resulting in decreased dissolved oxygen levels. Thus, the bubble screen will aide in decreasing BOD. Likewise, a bubble screen device is proposed to be placed around the fueling facilities in the rearward portion of the marina basin so as to prevent the spread of pollutants such as spilled oils, greases and fuels, which may occur during routine fueling operations from time to time. Inasmuch as the modifications have been shown to cause some improvement in the dissolved oxygen level in the waters of the marina basin and access canal, it has been demonstrated that the modifications will not interfere with the conservation of marine wildlife and other natural resources. The bodies of water consisting of the marina, the access canal and Garden Cove, at the present time support a diverse marine community that can be expected to continue to flourish. Neither will the proposed activity destroy any oyster or clam beds, as none have been shown to exist in these waters. Dr. Rich has monitored waterways and offshore waters at a nearby, comparable marina, The Ocean Reef Club, for approximately ten years. He has discerned no noticeable impact on the benthic communities within that marina from a very heavy boat traffic during that period of time. The boats using The Ocean Reef Club Marina are typically larger than will use the Port Bougainville facility and boats of over 100 feet in length commonly use The Ocean Reef Club. In terms of impact on offshore benthic communities, he has observed no visible impact by the heavy amount of boat traffic using The Ocean Reef Marina from the standpoint of comparison of the experience with that marina, in terms of biological impacts, with the marina configuration proposed by the Applicant/Respondents. In short, the proposed marina configuration as contrasted to the existing permitted marina, represents an improvement because of the increased surface area providing increased oxygen exchange through wave and wind action, the shoaling which will also be beneficial to dissolved oxygen levels because of its enhancement of photosynthetic processes, and because of the proposed marina management steps designed to prevent floating organic material from entering the marina. Thus, the modified design was shown to provide a meaningful improvement in general ecological conditions within the marina and hence, in the offshore waters of Garden Cove with which the marina waters exchange and mix. Water Quality Dr. Eugene Corcoran is Professor Emeritus of the Rosensteel School of Marine and Atmospheric Sciences. He is a marine chemist and performed a chemical analyses of the samples taken for the water quality report presented by Respondents and in evidence as Respondent's Exhibit 17. Dr. Corcoran also performed the analyses for the ongoing water sampling program conducted by Dr. Renate Skinner, an expert witness for Petitioners. The Petitioners accepted Dr. Corcoran as an expert witness without objection. The proposed marina modifications involved in this permitting application were thus shown to cause no violations of the state standards for dissolved oxygen. The Rio Palenque Water Quality Study in evidence indeed documented a number of instances where dissolved oxygen fell below the state minimum standards of four parts per million in the present marina. Once the modifications are completed there still may be instances when dissolved oxygen falls below that standard, but this can be attributed to natural phenomenon and the same relatively low levels of dissolved oxygen below state standards have been observed in the offshore waters of Garden Cove itself, which is an Outstanding Florida Water. Significantly, however, it was established that concentrations of dissolved oxygen will likely increase as a result of these modifications, the inducement of the helical flow and consequent vertical mixing, the widening of the entrance canal and the shoaling of the bottoms in the marina basin and canal, as well as the measures to be taken to reduce the deposition of organic materials in the marina basin and canal. The only water quality criteria placed in contention by the Petitioners and Intervenors were dissolved oxygen and copper. Although a number of Petitioners' witnesses were qualified to address the impacts of water quality on different marine organisms, only Dr. Curry was qualified as an expert in water quality. Dr. Curry's chief concern was with dissolved oxygen, which is based on the Rio Palenque Study showing present low values for dissolved oxygen in the marina as it now exists. Dr. Curry did not establish that the proposed modifications to the marina would themselves cause dissolved oxygen violations and although he testified in great detail concerning his attempt to compute the amount of copper that might be given off by the bottom paint of boats in the modified marina, he was unable to render an opinion that the modifications would increase copper levels in the waters in the marina. He acknowledged that his calculations were based on the assumption that all the boats in the marina would be using copper anti-fouling paints and his calculations took into account an assumption that all boats in the marina would have been painted within the last six months as a base datum for his calculations. Additionally, he did not take into account dispersion ratio associated with the hydrodynamic forces present in the modified marina. Dr. Curry admitted that he had never studied copper levels in a marina environment and was unable to explain the chemical effects on water quality of copper anti-fouling paints on boats. In all his sampling, he only found one instance of a violation of the Chapter 17-3 copper standard and that occurred within only a few millimeters of the hull of a newly-painted boat. Other fallacies involved in Dr. Curry's analysis, concern the interaction of seawater with copper bottom paint. Since seawater has a high level of carbonates, copper is immediately complexed with organic compounds such as amino acids. These organic complexes are soluble in seawater and indeed, serve as important nutrients to phytoplankton and other beneficial marine organisms. Thus, that portion of the total complex copper precipitated from the water as well as that portion taken up as nutrients would not be included in any concentrations of copper measured in the water column. Additionally, Dr. Curry's computations did not take into account the dispersion of copper concentrations due to mixing or flushing, which has a direct beneficial effect on reducing concentration of copper and other pollutants in the water column. Thus, Dr. Curry's computations are deemed immaterial, inasmuch as he effectively admits that the modifications to the marina would not be detrimental to water quality. The proposed modifications will not lower ambient water quality or significantly degrade the waters in the adjacent John Pennekamp Park, Outstanding Florida Waters. Since it has been established that the marina modifications will likely improve water quality within the marina, logically, the water quality in the park to some degree might be slightly improved, since those waters exchange with the waters in the marina. There will be no increase in concentrations of any pollutants emanating from the Port Bougainville Marina as a result of the proposed modifications. Improved Marking of Garden Cove Channel The Applicant/Respondents are required to provide improved navigational markers in the Garden Cove Channel, pursuant to an amended development order. Additionally, they have agreed to provide additional channel markers delineating the channel from the entrance of the existing marina to the Garden Cove Channel proper. With regard to the Garden Cove Channel, the Respondents proposed to move certain existing channel markers to more clearly identify that channel, which would make certain portions narrower and thereby eliminate boat passage over some shallow areas populated with marine grasses which presently lie within the marked channel. The Respondents also propose to add two more sets of channel markers at the seaward end of Garden Cove Channel, so that boats exiting the channel heading for the open sea will avoid certain shallow marine grass areas. The reason for this is to avoid possible damage to valuable marine grass beds and habitat which might be caused by prop wash of boats crossing over them, as well as actual contact and scouring by propellers or potential grounding of boats navigating these areas. Witness Balfe for the Respondents has personally sounded the entire length of the access canal and Garden Cove Channel. His soundings are admitted in evidence as Respondent's Exhibit 19 and are unrefuted. It was established therefore, that the bottom configuration of that access channel is basically flat or level with only minor irregularities of less than a foot. There are no rock outcroppings or other obstructions which would reduce the controlling depth below -4 feet. Approximately 12 times per year however, during "spring tides", the ambient water depths in Garden Cove could be expected to go below -4 feet mean low water. During these times the tide will be approximately 6 to 8 inches below that normal depth. Perhaps 25 times per year the tide is 5 or 6 inches below that mean low depth. The tide gauge which will be installed will alleviate possible propeller scouring or grounding damage to grass beds and marine habitat, especially during those abnormally low tides, by providing boat operators a current, up-to-date reading on the depths in the channel. Contributions to Park Management Plan and Marina Management Plan The Applicant/Respondents have agreed to a permit condition requiring a financial commitment to assist in the management of the John Pennekamp Park so as to minimize the adverse impacts of human use of the park. This commitment includes the provision of $75,000 to finance a study and preparation of a management plan for the John Pennekamp Coral Reef State Park and Key Largo National Marine Sanctuary, which would include study of the feasibility of inaugurating an entry permit system for the park, a testing and certification program for commercial dive boat operators, possible zoning of the park to allow recovery of the park coral reefs and other resources from the impacts of human visitors, locating central mooring buoys so that visitors' boats could be moored in one restricted area to avoid damage to the delicate coral reefs, and more adequately marking the boundaries of the park. Additionally, the Respondents propose to provide $50,000 for the acquisition of anchor buoys to be placed in selected areas of the park and to provide funds to finance a survey to more adequately identify the boundaries of the park. In order to more adequately protect water quality in the marina itself, the Respondents will inaugurate a marina management program which will include the installation of a sewage pump-out station and a pump-out station for motor oils and lubricants for boats. In addition to the two bubble curtains mentioned above, the Respondents will install containment booms and absorption mats and will permanently maintain a boat equipped with absorption mats and suction equipment for fuel or oil spill removal. The marina will prohibit persons living aboard boats, to prevent attendant sewage effluent problems, and will prohibit maintenance of boats, including painting and oil changes, while boats are in the water. This program will be monitored by an environmental protection officer employed by the condominium association under the auspices of the Respondents. Many of these marina management provisions are already requirements of the Port Bougainville 1982 development order referenced above. Management of Inland Lakes Although the use and management of the inland lakes on the Respondents' property is not directly involved in this permit application proceeding, the Respondents' overall development plan encompassed by the development order anticipates that at a future time a boat lift will be installed on upland so as to allow boats to be transferred from the inland lakes into the marina for access to marine waters. The lakes themselves, however, will not be open to the marina or to outside waters. The inland lakes are anticipated to provide dockage for approximately 200 boats, with restrictions against boats exceeding 20 feet in length and boats powered by combustion engines. The Respondents expect that the inland lakes will be primarily used by small boats such as canoes or sailboats. Dry storage for boats will be maintained on an upland site, for which a DER permit is not required. Neither is a permit for a boat transfer facility required since it would not involve dredging, filling or construction over water. The use of a boat lift, although it itself is not an issue before the Hearing Officer in this proceeding, would involve the potential of 200 or more boats using the marina in addition to those for which the marina is designed. This could occasion substantially greater risk for oil, grease and fuel spills and other potential damage to the water quality within the marina and damage to the marine habitat, grass beds and so forth within the marina, the access canal and the adjacent areas in Garden Cove. Accordingly, the conservation easement which the Respondents have agreed to provide the department as a condition to the grant of this permit should be amended to add a further condition on a grant of this permit so as to preclude placement of boats from the inland lakes into this marina or its access canal. Such a restriction would comport with the proposed uses of the inland lakes established by Mr. Scharenberg, the Respondent's principal. Boating Impacts Boat traffic in the Garden Cove Channel area is significant, with heaviest traffic occurring on the weekends when approximately two to three hundred boats navigate that channel. The boats presently using Garden Cove Channel come from a number of nearby marinas, small fishing docks and dry storage areas, as well as from a marked navigational channel called North Creek that provides access to the Garden Cove area and the Atlantic Ocean from Largo Sound. A small canal cuts through Key Largo into Largo Sound and provides access for boats in the Black Water Sound and other areas on the west side of Key Largo to the Garden Cove area and the Atlantic. The Port Bougainville Marina is expected to attract a mix of boats typical for such a marina, with the majority consisting of boats ranging from 27 to 35 feet in length. Approximately 20 percent of the boats will likely be in the 40-foot range. Larger boats may also use the marina, particularly those with a shallow draft, and "shoal draft" sailboats of 35 to 40 feet can safely navigate in and out of the marina. The marina, as it would be modified, would permit use of boats with a draft of up to three and one-half feet, although deeper draft boats could use the marina by timing arrivals and departures for the high tide, which is a common mode of operation by boat operators in the Florida Keys and other marine areas. The Port Bougainville Marina will contribute approximately 30 to 50 boats to the Garden Cove boat traffic on an average weekend out of the possible 311 boats in the harbor as it is proposed to be constructed. There will be a lesser number of boat arrivals and departures during the weekdays. The primary users of boats in and out of the marina will be people who own condominiums in the attendant real estate development. Temporary visitors, not owning boats moored in the marina, would typically use the dive charter boats and other rental boats in the surrounding areas, such as at the Ocean Reef facility. The existing marina which is already permitted and can be fully used at the present time from a legal standpoint, could accommodate the same reduced number and sizes of boats as the proposed modified marina by simply removing some of the present docks and finger piers. The Respondents propose to maintain approximately 20 slips for boats which are not owned by condominium unit owners, and they anticipate operating six to seven deep-sea charter boats as well as five smaller skiff-type charter boats, and perhaps as many as two dive charter boats with additional demands for charters to be serviced by charter boats in the surrounding areas. Boating adverse impacts on the marine benthic communities inside and outside of the marina will be minimized by the construction configuration of the marina and boat slips, the shoaling and widening of the marina basin and canal, and the channel marking and tidal gauging provisions proposed by the Applicant/Respondents. These safety arrangements would be further enhanced by the above-mentioned restriction on the placing of boats into the waters of the marina and canal from the inland lakes. The configuration of the proposed modified marina and the shoaling will have a beneficial effect in rendering use by extremely large boats, which might cause propeller, wake or grounding damage to the marine benthic communities unlikely because of the inaccessibility caused by the intentional shoaling. Coral Reef Impacts Dr. Peter Glynn is a qualified expert in marine ecology and was accepted as an expert witness in that area with particular emphasis, through his long specialization, in the ecology of corals and coral reefs. He has researched the effects of sediments, herbicides, pesticides, oxygen levels, temperature, salinity, tidal effects and oil pollution on corals. He testified as a rebuttal witness addressing concerns raised by Petitioners' and Intervenor's witnesses with regard to boat traffic, attendant turbidity and possible synergistic effects on coral reefs caused by oils, greases, low oxygen levels and turbidity. Dr. Glynn has studied corals in many areas of the world including the Caribbean and the Florida Keys. The coral reefs in Florida are similar to those in the Caribbean area and belong to the same "biogeographic province." He has dived in and examined the Garden Cove area and found four species of small reef building corals in Garden Cove. These were found in the vicinity of a shipwreck near the channel entrance to Garden Cove and the remainder of the corals observed in Garden Cove were in the bottom of the boat channel running through Garden Cove. There were no corals observed on the grass flats and in shallower areas of Garden Cove. The corals occurring in the boat channel are in isolated colonies of less than a foot in diameter. The Petitioners and Intervenors attempted to raise the possibility of synergistic adverse effects on corals posed by combinations of oils, oxygen levels, temperatures and sedimentation or similar impacts. It was not shown how or at what concentration turbidity might combine with various oxygen levels, temperatures or degrees of light penetration to produce such effects, however. The only type of synergistic effects on corals Drs. Glynn and Corcoran have observed is that between oils and pesticides. Although this effect has been demonstrated in another study area far removed from the Florida Keys, no such pesticide and oil synergistic impact has been observed in the Florida Keys area, chiefly because it is not an agricultural area characterized by significant use of pesticides. Likewise it was not established that suspended sediments in the Garden Cove area could have an adverse effect on corals by reducing light penetration. In tropical areas such as the Keys, light penetration is often saturating or in greater quantities than are really needed for healthy coral growth and indeed, many corals in these areas have pigments that naturally shield them from excess light because these coral species actually can suffer from too much light penetration. Additionally, Dr. Glynn has observed good coral reef health and growth in areas that are highly turbid. It was not established that an increase of sedimentation deposit on corals will necessarily have an adverse impact, particularly because most corals can accept a substantial amount of fine-grain sediment deposition without adverse effect. The manner in which the proposed marina modifications will be accomplished will minimize sedimentation at any rate since the canal will be dammed off from Garden Cove until all work is completed and all sedimentation within the marina and marina access canal has subsided to levels compatible with the state standards for turbidity. In any event, there is no evidence that boat traffic in Garden Cove at the present time influences the distribution and health of live coral, particularly since the main coral abundance in Garden Cove occurs in the heavily-used boat channel at the present time. Likewise, Dr. Glynn established that sediments from any increase in boat traffic in Garden Cove will not likely drift out on the offshore reef tract and be deposited on the reefs to their detriment in any event, since the fine sediments occurring in Hawk Channel and in Garden Cove, are largely precluded from deposition on the offshore reefs because the waters over the reef tract offshore have very different physical characteristics. That is, there is distinct interface between the inshore and oceanic waters caused by the strong wave assault and current action near the reefs, which precludes the fine sediments from the inshore areas remaining in the area of the reefs. Finally, any increase in the number of people visiting the Pennekamp Park attributable to use of the modified marina will not inevitably lead to degradation of the reefs. By way of comparison, studies of Kaneoi Bay in Hawaii where a major pollutant source from human sewage caused degradation of the coral reefs, showed that when sewage effluent was subsequently directed away from the reefs, the reefs rejuvenated and repopulated and are now used extensively for recreational activities without observable biological degradation. These studies are consistent with studies Dr. Glynn referenced with regard to Biscayne Bay National Park, which have shown no significant degradation occasioned by human visitation of the reefs in that park. Those studies have not shown a significant difference between the health of the "controlled reefs" and the reefs which are allowed to be used for recreational purposes. It was thus not established that there will be any degradation of the corals in the near-shore areas of Garden Cove nor in the offshore reef areas occasioned by any increased boat traffic resulting from the modification of the marina. Indeed, it was not demonstrated that the mere modification of the marina, which will actually accommodate fewer boats than are presently permitted, will cause any increase in present boat traffic at all. Dr. Glynn, in the course of his teaching and studies in the field of marine ecology has become familiar with the causes and effects of Ciguatera toxin in marine environments. He recently participated in the study of possible Ciguatera toxin at the grounding site of the freighter Wildwood on Molasses Reef, some miles distant from the marina site. All cases reported of such harmful concentrations of this toxin have originated from open water, outer coral reef environments, and not from near shore areas such as those involved in this case, where seagrasses and mangroves are the dominant marine communities. Ciguatera toxin organisms require clear open ocean water with strong currents and well-developed coral reefs which are found offshore in the Keys and not in the near-shore mangrove-type environments. The cause of Ciguatera is a concentration of toxin in the food chain. Although the bacteria that cause Ciguatera Toxin in fish, and resulting harmful effects in humans, occur everywhere in marine waters, the bacteria are not a hazard because generally, conditions are not appropriate for the bacteria to multiply. The two main species of dinoflagellates, that have been associated with causing Ciguatera poisoning do not occur in an environment such as the Port Bougainville Marina. They are typically concentrated in larger fish such as snapper, grouper and barracudas which cause problems when they are eaten by people. These species are not generally found in the inshore mangrove and grassbed areas such as are involved in the case at bar. Thus, the concerns expressed by Petitioner's witnesses concerning the possibility of Ciguatera poisoning occurring because of possible damage to corals and coral death caused by the dredge and fill operations, and boat operation associated with the marina and Garden Cove are, in reality, only unsubstantiated speculation.
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, RECOMMENDED: That the State of Florida, Department of Environmental Regulation, issue the requested permit subject to the conditions incorporated in the agreement or "conservation easement" executed between the Department and the Respondents with the further condition added to that conservation easement such that the deposition of boats from the inland lakes system into the marina and its access canal be prohibited. DONE and ENTERED this 9th day of April, 1985 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 9th day of April, 1985. COPIES FURNISHED: Elizabeth J. Rickenbacker, Esquire 10500 Southwest 108th Avenue Miami, Florida 33176 Michael F. Chenoweth, Esquire 522 Southwest Third Avenue Miami, Florida 33130 Douglas H. MacLaughlin, Esquire Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32301 Michael Egan, Esquire, Robert Apgar, Esquire Post Office Box 1386 Tallahassee, Florida 32302 Victoria Tschinkel, Secretary Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32301 ================================================================= AGENCY FINAL ORDER ================================================================= BEFORE THE STATE OF FLORIDA DEPARTMENT OF ENVIRONMENTAL REGULATION SIERRA CLUB: UPPER KEYS CITIZENS ASSOCIATION, INC., a non-profit Florida corporation; PAMELA BERYL PIERCE, and FRIENDS OF THE EVERGLADES, INC., a non-profit Florida corporation, Petitioners, and DOAH CASE NOS. 84-2364 84-2365 FRIENDS OF THE EVERGLADES, INC., 84-2385 a non-profit Florida corporation; 84-2827 THE FLORIDA DIVISION OF IZAAK (Not consolidated) WALTON LEAGUE OF AMERICA, INC., a non-profit Florida corporation; UPPER KEYS CITIZENS ASSOCIATION, INC., a non-profit Florida corporation, Intervenor-Petitioners, vs. STATE OF FLORIDA DEPARTMENT OF ENVIRONMENTAL REGULATION, and PORT BOUGAINVILLE ASSOCIATES, LTD. a Florida limited partnership, and PORT BOUGAINVILLE ENTERPRISE, INC. a Florida corporation, Respondents. /
The Issue Is the City of Mexico Beach (the City or Applicant) entitled to the issuance of a joint coastal permit and consent to use of sovereign submerged land for the Mexico Beach Canal (Main Canal) and a municipal flushing outlet adjacent to 8th Street (8th Street outlet)? Those permits would be issued by the Department of Environmental Protection (DEP) in response to DEP Application File No.: 0124938-001JC and DEP Application File No.: 0129039- 001JC, respectively.
Findings Of Fact Petitioners Edmond Blount, Sr.; Edmond Blount, Jr.; and Robert Davenport are residents of the City of Mexico Beach, Florida. As residents they have access to the Main Canal, the public beaches adjacent to the Main Canal, and beaches adjacent to the 8th Street outlet. Edmond Blount, Jr., and Robert Davenport oppose the issuance of any permits by DEP which would allow the City to conduct dredging and the placement of dredge materials associated with the Main Canal. Those Petitioners and Edmond Blount, Sr., oppose the grant of necessary permits by DEP upon the application by the City to conduct occasional maintenance excavation at the 8th Street outlet to alleviate potential damage through erosion to properties adjacent to the 8th Street outlet. The City of Mexico Beach is a municipality in Florida which serves as the local government for that community. The City owns the Main Canal and 8th Street outlet. DEP is an environmental regulator with authority to issue or deny joint coastal permits and to grant or deny consent to use sovereign submerged lands belonging to the State of Florida. The joint coastal permitting authority and right to grant consent to use is pursuant to Chapters 161, 253, and 373, Florida Statutes, and Chapters 18-21 and 62B-49, Florida Administrative Code. In particular, DEP has joint coastal permitting authority upon sovereignty lands in the State of Florida below the mean high waterline (MHWL) of any tidal water of the State. The reference to sovereign land is an association with lands below MHWL held in trust by the State of Florida. The term tidal waters refers to waters in which there is an astronomical effect on the elevation of that water. The Gulf of Mexico which fronts the City is a tidal water of the State of Florida. The MHWL is established along the coastal regions in Florida, to include the Gulf coast that fronts the City. The MHWL is set based upon charting information concerning the local mean high tide, the average height of the high waters, and where this average intersects the land. PERMIT APPLICATION FOR MAIN CANAL On June 30, 1997, the City applied to DEP for a ten-year permit/water quality certification and authorization to use sovereign submerged lands owned by the Board of Trustees of the Internal Improvement Trust Fund (the Trustees), which would allow the City to maintenance dredge the Main Canal entrance and place the dredge material on the beach east of the canal below the water's edge. This task would be accomplished by the use of hydraulic dredging device. In the course of these activities, approximately 660 cubic yards of material would be removed approximately four times a week. The application file number for the requested permit in the Main Canal project was: 0124938-001 JC. The City, through its application, provided a complete and appropriate application with adequate engineering data to support the proposed project. The Main Canal is located in the western part of the City and is partially located in sovereign submerged lands of the State of Florida where the canal intersects the Gulf of Mexico below the MHWL. On January 13, 1998, DEP gave notice of its intent to issue necessary permits for the activities to allow dredging and the placement of fill in association with the Main Canal. More specifically, the hydraulic dredge the City intends to use in the maintenance dredging of the Main Canal is a floating device which excavates the sand from the bottom of the entrance of the Main Canal and pipes the material onto the beach immediately east of the dredge site. The dredging activities may only be conducted in a manner designed to protect the beach-dune system, water quality and habitat for marine turtles. These restrictions in the conduct of the dredging are in accordance with the proposed joint coastal permit. The dredging activity is to remove and deposit clean beach sand that has been transported by coastal processes and deposited in the lee of the jetty within the Main Canal. There is no intent, nor permission under the proposed permit, that would allow disturbance of any sediments more landward of the extent of the canal. The dredging is necessitated because the entrance of the Main Canal slowly fills with sand being transported from west to east along the shoreline. The Main Canal is stabilized on both sides by jetties. The western-most jetty extends further out than the eastern-most jetty. The Main Canal has seawalls along its inside. A recreational area is located on the western side of the Main Canal. The Main Canal is highly utilized for purposes of commerce and recreation. The Main Canal constitutes an economic support for many residents of the City. The Main Canal in proximity to the Gulf and the Gulf itself are not considered outstanding Florida waters or aquatic preserves. The waters in the Main Canal and Gulf are Class III marine waters when considering the parameters for water quality under DEP statutes and rules. Competent evidence was presented concerning water quality sampling and results in the analysis of those samples for fecal coliform bacteria and total coliform bacteria in relation to the Main Canal at its entrance where dredging would take place under the terms of the permit. Some values for fecal coliform and total coliform exceeded the allowable limits for those parameters as envisioned by Section 62-302.530, Florida Administrative Code, as preexisting conditions. However, the dredge operations will not lead to further degradation of the existing Class III marine waters in the Main Canal and degradation of the Gulf. The relatively clean sand being excavated does not contain fines or organics, which, through the dredging and placement of the sand on the beach following the dredging, would contribute to degradation of water quality standards. The activity associated with the dredging and placement of those materials on the beach will not cause a significant adverse impact to the beach-dune system, nor will the transport of sand from west to east along the beach as it presently exists be interrupted by the dredging and placement of the sand. The dredged material is being placed immediately east of the dredge operation avoiding a disruption of the natural processes of transport. The proposed disposal area is located on the beach at least 100 feet east of the canal below the waters edge at approximately minus 0.5NGVD. Finally, the deposit of the sand on the beach contributes to beach stabilization as opposed to depriving the beach of sand. The proposed permit requires that the dredge pipeline be retracted upon a daily basis during marine turtle nesting season from May 1 until October 31 each year. By this limitation in the operation of the dredge pipeline, marine turtles are not hindered in their behavior nor is their habitat unduly disturbed. The placement of the dredged sand on the beach would not be in the dry upland where the turtles would typically nest. The DEP Bureau of Protected Species Management reviewed the permit application for any significant adverse impact on nesting sea turtles and recommends the approval subject to specific conditions such as have been described. The dredging of the sand from the Main Canal and placement of that material on the beach will not cause significant adverse impact to the property of others. The Main Canal project will not create any significant erosion or turbidity. Given the small volume and coarseness of the dredged sand, elevated turbidity levels are not expected. The dredging of material from the mouth of the Main Canal and placement on the adjacent beach does not block lateral access to the beach, because the hydraulic dredge pipeline is placed at the water's edge with a discharge of dredge material being made at the water's edge in the area of the intertidal zone where water comes up to the beach. The exact discharge point is seaward of the area described as the intertidal zone. Given that the project associated with the Main Canal is located in Class III marine waters, it must not be contrary to the public interest. The project is not contrary to the public interest. PERMIT APPLICATION FOR 8TH STREET OUTLET On June 13, 1997, the City applied to DEP for a ten- year permit/water quality certification and authorization to use sovereign submerged lands owned by the Board of Trustees. This would allow the City to conduct occasional excavation of the 8th Street municipal flushing outlet which connects to the Gulf, having in mind the alleviation of potential damage to adjacent beachfront properties. That potential damage would be expected to occur in the instance where there was an uncontrolled breach of the berm surrounding the 8th Street outlet due to high incidence of rainfall, thus eroding adjacent beachfront properties. With the advent of scheduled maintenance, excavation of the outlet that erosion is expected to be deterred. The application file number for the requested permit in the 8th Street outlet project was File No.: 0129039-001 JC. The City, in its application for necessary permits to conduct excavation at the 8th Street outlet, submitted a complete and appropriate application setting forth adequate engineering details. More specifically, the permit application contemplates the removal of approximately 20 to 40 yards of beach sand per excavation, with the material excavated being placed on the beach near the water's edge. The excavation would be approximately 4 to 5 feet wide, 50 feet long, and 2 to 3 feet deep. Ordinarily, the frequency of excavation would be one to two times per month. The excavation practices would be by the use of a backhoe other than in the sea turtle nesting season. While sea turtles are nesting, the plans contemplate excavation by hand by use of a shovel or similar tool. In addition, during the turtle nesting season the application contemplates that the excavation would be done during daylight hours, only twice a month, to reduce potential flooding of marine turtle nests due to a meandering outflow from the outlet. Other than in the marine turtle nesting season the excavation would be done on an "as needed" basis. On March 16, 1998, the DEP gave notice of its intent to issue a permit for the dredging at the 8th Street outlet. The conditions associated with the intended permit for dredging of the 8th Street outlet deter any significant adverse impacts to the beach-dune system. In the area of the 8th Street outlet, a large box culvert runs underneath U.S. 98, the main highway in the city. That highway runs parallel to the beach. Once the water flows through the culvert, it accumulates in the outlet south of the road. In the instance where rainfall is diminished, the flushing outlet does not flow to the Gulf and the beach berm, which accretes seaward of the outlet, traps the water that is being released via the culvert. By contrast, in instances where heavy rainfall occurs, the water in the outlet collects to a point that it begins to flow away from the culvert in the direction of the Gulf. If the beach berm has built up over time, the path of that flow in high incidence of rainfall can encroach on buildings that are adjacent to the culvert on the south side of U.S. 98. When the rainfall is sufficient, and the water begins to flow, it reaches a sufficient velocity to move sand as a bed load. Under those circumstances, when the water strikes a ridged object, like a house foundation, the local water velocity will act to carry away the sand more readily from that location where the house foundation is found, by scouring out the sand near the foundation, undermining the building and risking the collapse of the building onto the beach. In the course of this process the water breaches the beach berm and flows towards the Gulf. In the instance where the berm on the beach has been breached, the water that has been released begins to scour the beach and establish a pattern that can run down the beach roughly parallel to the Gulf for a distance before flowing into the Gulf. By contrast, the controlled release of water from the outlet would cause less of an impact, in that it would create an immediate access through the beach berm to the Gulf without creating the potential for harm to upland property or causing erosion or scouring of dunes and vegetation in beach areas, some of which might contain turtle nests. Unlike the circumstances with high incidence of rainfall where adjacent property is eroded and damaged, the use of controlled maintenance excavation to relieve the outlet would not cause significant and adverse impact to adjacent property owners. The controlled release of the water in the outlet, unlike the natural release of that water in high incidence of rainfall, is more in the interest of the public when considering adverse impacts to property. The introduction of the water in the outlet, and its constituents, onto the beach and its consequences, is no more a problem whether based upon the natural event of high incidence of rainfall or the routine release contemplated by the project. Therefore, the alternative method of releasing the water by use of scheduled excavation is not contrary to the public interest. If anything, the use of periodic excavation to relieve the outlet would limit the breadth of discharge and the amount of discharge. The 8th Street outlet and the Gulf area adjacent to that outlet are not within outstanding Florida waters or aquatic preserves. The project site for the 8th Street outlet and the Gulf are within Class III marine waters. The existing Class III marine water quality parameters for fecal coliform and total coliform when considered in accordance with Rule 62-302.530, Florida Administrative Code, have been exceeded in the 8th Street outlet. This is borne out by test results from samples gathered at the 8th Street outlet presented at hearing. However, as with the circumstance with the Main Canal, the effect of periodic excavation to relieve the outlet will not further degrade state waters found in the outlet. The results of water quality tests performed following sampling that relate to the amount of fecal coliform and total coliform in the Gulf that could be expected at the entrance of the Main Canal and as the discharge of water within the 8th Street outlet enters the Gulf show low values for those parameters. Therefore, it is not anticipated that the release of the water from the 8th Street outlet to the Gulf under controlled conditions contemplated by the permit application would cause a violation of the parameters for fecal coliform and total coliform in the Gulf, the receiving body of water, especially when compared to the existing release of water from the 8th Street outlet to the Gulf in high incidence of rainfall. This finding is also influenced by the fact that the most excessive values for total coliform and fecal coliform in the 8th Street outlet system were found 600 to 800 feet up the water course described as the 8th Street outlet. Similar to the Main Canal, the project contemplated at the 8th Street outlet would not require mitigation before being permitted by DEP. The 8th Street outlet project would not create significant adverse impacts on coastal sediment transport. The DEP Bureau of Protective Species Management reviewed the 8th Street outlet application and recommended approval with specific conditions. Those conditions offer adequate protection to marine turtles and their habitat. The conditions include project excavation that does not create parallel trenches in the sand that inhibit movement on the beach by sea turtles. The 8th Street outlet project will not create significant erosion concerns or turbidity concerns. The 8th Street outlet project does not block lateral beach access to the public, in that the excavation to relieve the outlet on a periodic basis is temporary, that is to say only in effect when the water is being released from the outlet to the Gulf. CONSENT TO USE SOVEREIGN SUBMERGED LANDS The 8th Street outlet project, as well as the Main Canal project, involves sovereignty submerged lands below the MHWL constituted of the beach and ocean bottom. The facts show that the City is entitled to consent of use to work on sovereign submerged lands in the Main Canal and 8th Street outlet projects.
Recommendation Based upon the facts found and the conclusions of law reached, it is RECOMMENDED: That DEP issue a final order granting the City the joint coastal permits and consent to use sovereign submerged lands in accordance with application File Nos.: 0124938-001JC and 0129039-001JC respectively, subject to specific conditions contained therein. DONE AND ENTERED this 10th day of November, 1998, in Tallahassee, Leon County, Florida. CHARLES C. ADAMS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 10th day of November, 1998. COPIES FURNISHED: Edmond Blount, Sr. Post Office Box 13855 Mexico Beach, Florida 32410 Edmond Blount, Jr. Post Office Box 13854 Mexico Beach, Florida 32410 Robert Davenport Post Office Box 13926 Mexico Beach, Florida 32410 Gerard Murnan Post Office Box 13378 Mexico Beach, Florida 32410 Paul G. Komarek, Esquire Daniel and Komarek, Chartered Post Office Box 2547 Panama City, Florida 32402 Ricardo Muratti, Esquire Department of Environmental Protection Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 John McInnis, City Manager City of Mexico Beach Post Office Box 13425 Mexico Beach, Florida 32410 Kathy Carter, Agency Clerk Department of Environmental Protection Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 F. Perry Odom, General Counsel Department of Environmental Protection Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000
The Issue The issues in this case are whether IP is entitled to issuance of National Pollutant Discharge Elimination System (NPDES) Permit Number FL0002526-001/001-IW1S ("the proposed permit"), Consent Order No. 04-1202, Authorization for Experimental Use of Wetlands Order No. 04-1442, and Waiver Order No. 04-0730 (collectively, "the Department authorizations"), which would authorize IP to discharge treated industrial wastewater from its paper mill in Cantonment, Escambia County, Florida, into wetlands which flow to Elevenmile Creek and Perdido Bay.
Findings Of Fact Introduction A. The Parties The Department is the state agency authorized under Chapter 403, Florida Statutes (2006),2 to regulate discharges of industrial wastewater to waters of the state. Under a delegation from the United States Environmental Protection Agency (EPA), the Department administers the NPDES permitting program in Florida. IP owns and operates the integrated bleached kraft paper mill in Cantonment, Escambia County, Florida. FOPB is a non-profit Alabama corporation3 established in 1988 whose members are interested in protecting the water quality and natural resources of Perdido Bay. FOPB has approximately 450 members. About 90 percent of the members own property adjacent to Perdido Bay. James Lane is the President of FOPB. Mellita A. Lane, Zachary P. Lane, Peter A. Lane, and Sarah M. Lane are the adult children of Dr. Jacqueline Lane and James Lane. Dr. Lane and James Lane live on property adjacent to Perdido Bay with their son Peter. The Adjacent Waters The mill's wastewater effluent is discharged into Elevenmile Creek, which is a tributary of Perdido Bay. The creek flows southwest into the northeastern portion of Perdido Bay. Elevenmile Creek is a freshwater stream for most of its length but is sometimes tidally affected one to two miles from its mouth. Elevenmile Creek is designated as a Class III water. Perdido Bay is approximately 28 square miles in area and is bordered by Escambia County on the east and Baldwin County, Alabama on the west. The dividing line between the states runs north and south in the approximate middle of Perdido Bay. U.S. Highway 90 crosses the Bay, going east and west, and forms the boundary between what is often referred to as the "Upper Bay" and "Lower Bay." The Bay is relatively shallow, especially in the Upper Bay, ranging in depth between five and ten feet. Perdido Bay is designated as a Class III water. Sometime around 1900, a manmade navigation channel was cut through the narrow strip of land separating Perdido Bay from the Gulf of Mexico. The channel, called Perdido Pass, allowed the salt waters of the Gulf to move with the tides up into Perdido Bay. Depending on tides and freshwater inflows, the tidal waters can move into the most northern portions of Perdido Bay and even further, into its tributaries and wetlands. The Perdido River flows into the northwest portion of Perdido Bay. It is primarily a freshwater river but it is sometimes tidally influenced at and near its mouth. The Perdido River was designated an Outstanding Florida Water (OFW) in 1979. At the north end of Perdido Bay, between Elevenmile Creek and the Perdido River, is a large tract of land owned by IP called the Rainwater Tract. The northern part of the tract is primarily freshwater wetlands. The southern part is a tidal marsh. Tee and Wicker Lakes are small (approximately 50 acres in total surface area) tidal ponds within the tidal marsh. Depending on the tides, the lakes can be as shallow as one foot, or several feet deep. A channel through the marsh allows boaters to gain access to Tee and Wicker Lakes from Perdido Bay. The Mill 1. Production Florida Pulp and Paper Company first began operating the Cantonment paper mill in 1941. St. Regis Paper Company (St. Regis) acquired the mill in 1946. In 1984, Champion International Corporation (Champion) acquired the mill. Champion changed the product mix in 1986 from unbleached packaging paper to bleached products such as printing and writing grades of paper. In 2001, Champion merged with IP, and IP took over operation of the mill. The primary product of the mill continues to be printing and writing paper. The mill is integrated, meaning that it brings in logs and wood chips, makes pulp, and produces paper. The wood is chemically treated in cookers called digesters to separate the cellulose from the lignin in the wood because only the cellulose is used to make paper. Then the "brown stock" from the digesters goes through the oxygen delignification process, is mixed with water, and is pumped to paper machines that make the paper products. There are two paper machines located at the mill. The larger paper machine, designated P5, produces approximately 1,000 tons per day of writing and printing paper. The smaller machine, P4, produces approximately 400 to 500 tons per day of "fluff pulp." 2. The Existing Wastewater Treatment Plant The existing wastewater treatment plant (WWTP) at the mill is described in the revised NPDES permit as a "multi-pond primary and secondary treatment system, consisting of a primary treatment system (primary settling basin, polymer addition, two solids/sludge dewatering basins, and a floating dredge), and secondary treatment system (four ponds in series; two aerated stabilization basins with approximately 2,200 horsepower (HP) of aeration capacity, a nutrient feed system, two non-aerated polishing ponds and a final riffle section to re-aerate the effluent)." The WWTP is a system for reducing the biological oxygen demand (BOD) of the mill's wastewater by bacteria. IP’s wastewater is nutrient deficient when it enters the WWTP. Nutrients in the form of phosphorus and nitrogen must be added for the growth of bacteria. The WWTP begins with a primary settling basin in which suspended solids settle to the bottom. The solids form a sludge that is pumped by hydraulic dredge into two dewatering basins. The dewatering basins are used alternately so that, as one pond is filled, water is removed from the other pond. After being dewatered, the sludge is removed and allowed to dry. Then, it is transported to a landfill located about five miles west of the mill on land owned by IP. The water removed from the dewatering basins moves into to the first aeration basin. The aeration basin has floating aerator devices that add oxygen to facilitate biological conversion of the wastewater. The wastewater then flows sequentially through three more basins where there is further oxygenation and settling of the biological solids. The discharge from the fourth settling basin flows through a riffle section where the effluent is aerated using a series of waterfalls. This is the last element of the treatment process from which the mill's effluent enters waters of the state. Chemicals are added during the treatment process to control phosphorus and color. Chemicals are also added to suppress foam. Sanitary wastewater from the mill, after pretreatment in an activated sludge treatment system, is "sewered" to the mill's WWTP and further treated in the same manner as the industrial wastewater. A separate detention pond collects and treats stormwater from onsite and offsite areas and discharges at the same point as the wastewater effluent from the WWTP. Stormwater that falls on the industrial area of the mill is processed through the WWTP. The discharge point from the WWTP, and the point at which the effluent is monitored for compliance with state effluent limitations, is designated D-001, but is also called the Parshall Flume. The effluent is discharged from the Parshall Flume through a pipe to an area of natural wetlands. After passing through the wetlands, the combined flow runs through a pipe that enters Elevenmile Creek from below the surface. This area is called the "boil" because the water can be observed to boil to the surface of Elevenmile Creek. From the boil, the mill effluent flows approximately 14 miles down (apparently misnamed) Elevenmile Creek to upper Perdido Bay. Regulatory History of the Mill Before 1995, the mill had to have both state and federal permits. The former Florida Department of Environmental Regulation (DER) issued St. Regis an industrial wastewater operating permit in 1982 pursuant to Chapter 403, Florida Statutes. The EPA issued St. Regis an NPDES permit in 1983 pursuant to the Clean Water Act. When it acquired the facility in 1984, Champion continued to operate the mill under these two permits. In 1986, Champion obtained a construction permit from DER to install the oxygen delignification technology and other improvements to its WWTP in conjunction with the conversion of the production process from an unbleached to a modified bleached kraft production process. In 1987, Champion applied to DER for an operating permit for its modified WWTP and also petitioned for a variance from the Class III water quality standards in Elevenmile Creek for iron, specific conductance, zinc, and transparency. DER's subsequent proposal to issue the operating permit and variance was formally challenged.4 In 1988, while the challenges to the DER permit and variance were still pending, Champion dropped its application for a regular operating permit and requested a temporary operating permit (TOP), instead. In December 1989, DER and Champion entered into Consent Order No. 87-1398 ("the 1989 Consent Order"). The 1989 Consent Order included an allegation by DER that the mill's wastewater discharge was causing violation of state water quality standards in Elevenmile Creek for dissolved oxygen (DO), un-ionized ammonia, and biological integrity. The 1989 Consent Order authorized the continued operation of the mill, but established a process for addressing the water quality problems in Elevenmile Creek and Perdido Bay and bringing the mill into compliance in the future. Champion was required to install equipment to increase the DO in its effluent within a year. Champion was also required to submit a plan of study and, 30 months after DER's approval of the plan of study, to submit a study report on the impacts of the mill's effluent on DO in Elevenmile Creek and Perdido Bay and recommended measures for reducing or eliminating adverse impacts. The study report was also supposed to address the other water quality violations caused by Champion. A comprehensive study of the Perdido Bay system was undertaken by a team of 24 scientists lead by Dr. Robert Livingston, an aquatic ecologist and professor at Florida State University. The initial three-year study by Dr. Livingston's team of scientists was followed by a series of related scientific studies, which will be referred to collectively in this Recommended Order as "the Livingston studies." The 1989 Consent Order had no expiration date, but it was tied to the TOP, which had an expiration date of December 1, 1994. Champion was to be in compliance with all applicable water quality standards by that date. The TOP established the following specific effluent discharge limitations for the mill: Monthly Average Maximum Biological Oxygen Demand (BOD) (Mar-Oct) 4,500 lbs/day 6,885 lbs/day (Nov-Feb) 5,100 lbs/day 6,885 lbs/day Total Suspended Solids (TSS) (Mar-Oct) 8,000 lbs/day 27,000 lbs/day (Nov-Feb) 11,600 lbs/day 27,000 lbs/day Iron 3.5 mg/l Specific Conductance 2,500 micromhos/cm Zinc .075 mg/l The limits stated above for iron, specific conductance, and zinc were derived from the variance granted to Champion. Champion was also granted variances from the water quality standards for biological integrity, un-ionized ammonia, and DO. The 1989 Consent Order, TOP, and variance were the subject of the Recommended Order and Final Order issued in Perdido Bay Environmental Association, Inc. v. Champion International Corporation, 89 ER FALR 153 (DER Nov. 14, 1989). Champion's deviation from the standards for iron, zinc, and specific conductance pursuant to the variance was determined to present no significant risk of adverse effect on the water quality and biota of Elevenmile Creek and Perdido Bay. The mill effluent's effect on transparency (reduced by color in the mill effluent) was considered a potentially significant problem. However, because it was found that there was no practicable means known or available to reduce the color, and there was insufficient information at that time to determine how Champion's discharge of color was affecting the biota, Champion was allowed to continue its discharge of color into Elevenmile Creek pending the results of the Livingston studies. In the administrative hearing, the petitioners argued that it was unreasonable to put off compliance for five years, but the hearing officer determined that five years was reasonable under the circumstances. One finding in the Recommended Order and a reason for recommending approval of the TOP and Consent Order was: After the studies referred to in the consent order, the Department will not allow Champion additional time to study problems further. Significant improvements will be required within the five year period and at the end of that period, the plant will be in compliance with all water quality standards or will be denied an operating permit, with related enforcement action. The requirement of the 1989 Consent Order that Champion be in compliance with all applicable standards by December 1994, was qualified with the words "unless otherwise agreed." In considering this wording, the hearing officer opined that any change in the compliance deadline "would require a new notice of proposed agency action and point of entry for parties who might wish to contest any modification in the operational requirements, or changes in terms of compliance with water quality standards." The mill was not in compliance with all water quality standards in December 1994. No enforcement action was taken by the Department and no modification of the 1989 Consent Order or TOP was formally proposed that would have provided a point of entry to any members of the public who might have objected. Instead, the Department agreed through correspondence with Champion to allow Champion to pursue additional water quality studies and to investigate alternatives to its discharge to Elevenmile Creek. In 1994 and 1995, Champion applied to renew its state and federal wastewater permits, which were about to expire. The Department and EPA notified Champion that its existing permits were administratively extended during the review of the new permit applications. Today, the Cantonment mill is still operating under the 1989 TOP which, due to the administrative extension, did not terminate in December 1994, as stated on its face. In November 1995, following EPA's delegation of NPDES permitting authority to the Department, the Department issued an order combining the state and federal operating permits into a single permit identified as Wastewater Permit Number FL0002526-002-IWF/MT. In summary, the permit requirements currently applicable to the operation of the Cantonment paper mill are contained in the following documents: January 3, 1983, EPA NPDES Permit December 13, 1989, DER Temporary Operating Permit (TOP) December 13, 1989, DER Consent Order December 12, 1989, DER Variance November 15, 1995, DEP Order (combining the NPDES permit and the State-issued wastewater permit) April 22, 1996, DEP Letter (clarifying November 15, 1995, Order regarding 1983 NPDES Permit) During the period from 1992 to 2001, more water quality studies were conducted and Champion investigated alternatives to discharging into upper Elevenmile Creek, including land application of the effluent and relocation of the discharge to lower Elevenmile Creek or the Escambia River. In 2001, IP and Champion merged and IP applied to the Department to have the mill permit and related authorizations transferred to IP. Dr. Lane formally challenged the proposed transfer, but she was determined to lack standing. One conclusion of law in the Recommended Order issued in the 2001 administrative case was that the mill was in compliance with the consent order, TOP, and variance. That conclusion was not based on a finding that Champion was in compliance with all applicable water quality standards, but that the deadline for compliance (December 1, 1994) had been extended indefinitely by the pending permit renewal application. In 2001, Dr. Lane twice petitioned the Department for a declaratory statement regarding the Department's interpretation of certain provisions of the 1989 Consent Order. The first petition was denied by the Department because Dr. Lane failed to adequately state her interests and because she was a party in a pending case in which the Consent Order was at issue. Dr. Lane second petition was denied for similar reasons. Over 14 years after the deadline established in the 1989 TOP for the mill to be in compliance with all applicable standards in Elevenmile Creek, IP is still not meeting all applicable standards. However, the combination of (1) Consent Order terms that contemplated unspecified future permit requirements based on yet-to-be-conducted studies, (2) the wording in the TOP that tied the deadline for compliance to the expiration of the TOP, and (3) the administrative extension of the TOP, kept the issue of Champion's and IP's compliance in a regulatory limbo. It increased the Department's discretion to determine whether IP was in compliance with the laws enacted to protect the State's natural resources, and reduced the opportunity of interested persons to formally disagree with that determination. The Proposed Authorizations A. In General In September 2002, while Champion's 1994 permit renewal application was still pending at DEP, IP submitted a revised permit renewal application to upgrade the WWTP and relocate its discharge. The WWTP upgrades consist of converting to a modified activated sludge treatment process, increasing aeration, constructing storm surge ponds, and adding a process for pH adjustment. The new WWTP would have an average daily effluent discharge of 23.8 million gallons per day (mgd). IP proposes to convey the treated effluent by pipeline 10.7 miles to a 1,464-acre wetland tract owned by IP5, where the effluent would be distributed over the wetlands as it flows to lower Elevenmile Creek and upper Perdido Bay. IP revised its permit application again in October 2005, to obtain authorization to reconfigure the mill to produce unbleached brown paper for various grades of boxes. If the mill is reconfigured, only softwood (pine) would be used in the new process. On April 12, 2005, the Department issued a Notice of Intent to Issue the proposed NPDES permit, together with Consent Order No. 04-1202, Authorization for Experimental Use of Wetlands Order No. 04-4442, and Waiver Order No. 04-0730. An exemption from water quality criteria in conjunction with the experimental use of wetlands for wastewater treatment is provided for in Florida Administrative Code Rule 62-660.300(1). The proposed exemption order would exempt IP from Class III water quality criteria for pH, DO, transparency, turbidity, and specific conductance. The proposed waiver order is associated with the experimental use of wetlands exemption and relieves IP of the necessity to comply with two exemption criteria related to restricting public access to the area covered by the exemption. The Department and IP contend that restricting public access to Tee and Wicker Lakes is unnecessary. The proposed Consent Order is an enforcement document that is necessary if the mill is to be allowed to operate despite the fact that its wastewater discharge is causing violations of water quality standards. A principal purpose of the proposed Consent Order is to impose a time schedule for the completion of corrective actions and compliance with all state standards. The proposed Consent Order would supersede the 1989 Consent Order. The Proposed NPDES Permit 1. WWTP Upgrades IP's primary objective in upgrading the WWTP was to reduce the nitrogen and phosphorus in the mill's effluent discharge. The upgrades are designed to reduce un-ionized ammonia, total soluble nitrogen, and phosphorus. They are also expected to achieve a modest reduction of BOD and TSS. Upgraded pond 1 is expected to convert soluble BOD to suspended solids and to accomplish other biological conversions seven or eight times faster than the current pond 1. The modification of pond 3 to an activated sludge system is expected to more rapidly remove and recycle the solids back into pond 1. Pond 3 will have a much larger bacterial population to treat the effluent. There would also be additional pH control at the end of pond 3. IP would continue to use its Rock Crossing Landfill for disposal of wastewater sludge removed from the WWTP. Authorization for the landfill is part of the proposed NPDES permit. Groundwater monitoring beneath the landfill is required. The WWTP upgrades would include increased storm surge capacity by converting two existing aeration and settling basins (ponds 2 and 4) to storm surge basins. The surge basins would allow the mill to manage upsets and to withstand a 25-year, 24-hour storm event of 11 inches of rain. Rainfall that falls into the production areas would flow to the WWTP, and be impounded in ponds 2 and 4. After the storm event this impounded water would flow back through the WWTP where it would be treated before flowing through the compliance point and into the pipeline to the wetland tract. The Department required IP to monitor for over 129 pollutants in its stormwater runoff from the mill’s manufacturing facility, roads, parking lots, and offsite nonpoint sources. No pollutants were found in the stormwater at levels of concern. The average volume of mill discharge would be mgd. IP plans to obtain up to 5 mgd of treated municipal wastewater from a new treatment facility planned by the Emerald Coast Utility Authority (ECUA), which would be used in the paper production process and would reduce the need for groundwater withdrawals by IP for this purpose. The treated wastewater would enter the WWTP along with other process wastewater, be treated in the same manner in the WWTP, and become part of the effluent conveyed through the pipeline to the wetland tract. 2. Effluent Limitations The effluent limitations required by the proposed permit include technology-based effluent limits (TBELs) that apply to the entire pulp and paper industry. TBELs are predominantly production-based and are designed to limit the amount of pollutants that may be discharged per ton of product produced. The Cantonment mill has not had a problem in meeting TBELs. The TBELs that IP must meet are in the "Cluster Rule" promulgated by the EPA and adopted by the Department. The mill already meets the TBELS applicable to its current bleaching operation. In fact, EPA determined that the mill was performing in the top 5 percent of similar mills in the nation. The mill would have to meet the TBELs for a brown kraft operation if that conversion is made by IP. The proposed permit also imposes water quality- based effluent limits (WQBELs) that are specific to the Cantonment mill and the waters affected by its effluent discharge. The WQBELs for the mill are necessary for certain constituents of the mill's effluent because the TBELs, alone, would not be sufficient to prevent water quality criteria in the receiving waters from being violated. For example, the TBEL for BOD for similar pulp and paper mills is 15,943 pounds per day (ppd) on a monthly average, but the WQBEL for BOD for the Cantonment mill would be 4,500 ppd in summer and 5,100 ppd in winter. Dr. Livingston developed an extensive biological and chemical history of Perdido Bay and then evaluated the nutrient loadings from Elevenmile Creek over a 12-year period to correlate mill loadings with the biological health of the Bay. Because Dr. Livingston determined that the nutrient loadings from the mill that occurred in 1988 and 1989 did not adversely impact the food web of Perdido Bay, he recommended effluent limits for ammonia nitrogen, orthophosphate, and total phosphorous that were correlated with mill loadings of these nutrients in those years. The Department used Dr. Livingston’s data, and did its own analyses, to establish WQBELs for orthophosphate for drought conditions and for nitrate-nitrite. WQBELs were ultimately developed for total ammonia, orthophosphate, nitrate-nitrite, total phosphorus, BOD, color, and soluble inorganic nitrogen. The WQBELs in the proposed permit were developed to assure compliance with water quality standards under conditions of pollutant loadings at the daily limit (based on a monthly average) during low flow in the receiving waters. The proposed permit also establishes daily maximum limits (the most that can be discharged on any single day). For BOD, the daily maximum limit is 9,000 ppd. William Evans, the Department employee with primary responsibility for the technical review of the proposed Department authorizations, said that setting the daily maximum limit at twice the monthly average was a standard practice of the Department. The maximum daily limits are not derived from the Livingston studies. Dr. Glen Daigger, a civil and environmental engineer, designed a model for the WWTP and determined the modifications necessary to enable the WWTP's discharge to meet all TBELs and WQBELs. Petitioners did not dispute that the proposed WWTP is capable of achieving the TBELs and WQBELs. Their main complaint is that the WQBELs are not adequate to protect the receiving waters. 3. Discharge to the Wetland Tract IP proposes to relocate its discharge to the wetland tract as a means to end decades of failure by the mill to meet water quality standards in Elevenmile Creek. Discharging to the wetland tract, which flows to the marine waters of lower Elevenmile Creek and Perdido Bay, avoids many of the problems associated with trying to meet the more stringent water quality standards applicable in a freshwater stream. An effluent distribution system is proposed for the wetland tract to spread the effluent out over the full width of the wetlands so that their full assimilative capacity is utilized. This would be accomplished by a system of berms running perpendicular to the flow of water through the wetlands, and gates and other structures in and along the berms to gather and redistribute the flow as it moves in a southerly direction toward Perdido Bay and lower Elevenmile Creek. The design incorporates four existing tram roads that were constructed on the wetland tract to serve the past and present silviculture activities there. The tram roads, with modifications, would serve as the berms in the wetland distribution system. As the effluent is discharged from the pipeline, a point designated D-003, it would be re-aerated6 and distributed across Berm 1 through a series of adjustable, gated openings. Mixing with naturally occurring waters, the effluent would move by gravity to the next lower berm. The water will re-collect behind each of the vegetated berms and be distributed again through each berm. The distance between the berms varies from a quarter to a half mile. Approximately 70 percent of the effluent discharged at D-003 would flow by gravity a distance of approximately 2.3 miles to Perdido Bay. The remaining 30 percent of the effluent would flow a shorter distance to lower Elevenmile Creek. A computer simulation performed by Dr. Wade Nutter, an expert in hydrology, soils, and forested wetlands, indicated that the effluent discharged at D-003 will move through the wetland tract at a velocity of approximately a quarter-of-a-foot per second and the depth of flow across the wetland tract will be about one-half inch. It would take four or five days for the effluent to reach lower Elevenmile Creek and Perdido Bay. As the treated effluent flows through the wetland tract, there will be some removal of nutrients by plants and soil. Nitrogen and phosphorous are expected to be reduced approximately ten percent. BOD in the effluent is expected to be reduced approximately 90 percent. Construction activities associated with the effluent pipeline and berm modifications in the wetland tract were permitted by the Department in 2003 through issuance of a Wetland Resource Permit to IP. The United States Army Corps of Engineers has also permitted this work. No person filed a petition to challenge those permits. A wetland monitoring program is required by the proposed permit. The stated purpose of the monitoring program is to assure that there are no significant adverse impacts to the wetland tract, including Tee and Wicker Lakes, and is referred to as the No Significant Adverse Impact (NSAI) analysis. A year of "baseline data" on the wetlands and Tee and Wicker Lakes was collected and submitted to the Department for use in developing the NSAI analysis, but was not made a part of the record in this case. After the discharge to the wetland tract commences, the proposed permit requires IP to submit wetland monitoring reports annually to the Department. A monitoring program was also developed by Dr. Livingston and other IP consultants to monitor the impacts of the proposed discharge on Elevenmile Creek and Perdido Bay. It was made a part of the proposed permit. The Exemption for Experimental Use of Wetlands Florida Administrative Code Rule 62-660.300(1) provides an exemption from water quality criteria for the experimental use of wetlands. The proposed Authorization for Experimental Use of Wetlands Order would exempt IP from Class III water quality criteria for pH, DO, transparency, turbidity, and specific conductance. The proposed exemption order sets forth "interim limits" for pH, DO, color, turbidity, and specific conductance. The proposed exemption order also states that IP may petition for alternative water quality criteria pursuant to Florida Administrative Code Rule 62- 66D.300(1)(b)(c) and (d). The exemption is for 5 years beginning with the commencement of discharge into the wetland tract at D-003. The exemption it can be renewed by IP by application to the Department. The Waiver To qualify for the experimental use of wetlands exemption, Florida Administrative Code Rules 62- 660.300(1)(a)3 and 4 require, respectively, that the public be restricted from the exempted wetland area and that the waters not be used for recreation. IP proposes to prevent public access to the area of the wetland tract where the effluent distribution system is located. This is the freshwater area of the wetland tract and includes the four berms. However, IP does not want, nor believe it is necessary, to prevent public access and recreation on Tee and Wicker Lakes within the tidal marsh below berm 4. These lakes are accessible by boat from Perdido Bay and are used now by the public for boating and fishing. The Proposed Consent Order The proposed Consent Order establishes a schedule for the construction activities associated with the proposed WWTP upgrades and the effluent pipeline and for incremental relocation of the mill's discharge form Elevenmile Creek to the wetland tract. IP is given 24 months to complete construction activities and begin operation of the new facilities. At least 25 percent of the mill's effluent must be diverted to the wetland tract. At least 25 percent of the effluent is to be diverted to the wetland tract when the new facilities begin operations. The volume of effluent diverted to the wetlands is to increase another 25 percent every three months thereafter so that three years after issuance of the permit 100 percent of the effluent is being discharged into the wetland tract and there is no longer a discharge at D-001 into Elevenmile Creek.7 The proposed Consent Order establishes interim effluent limitations that would apply immediately upon the effective date of the Consent Order and continue during the 24-month construction period when the mill will continue to discharge into Elevenmile Creek. Other interim effluent limits would apply during the 12-month period following construction when the upgraded WWTP would be operating and the effluent would be incrementally diverted from Elevenmile Creek to the wetland tract. A third set of interim effluent limits would apply at D-003 when 100 percent of the discharge is into the wetland tract. They include the interim limits for specific conductance, pH, DO, color, and turbidity established through the experimental use of wetland exemption. The proposed Consent Order requires IP to submit a report within six months with the results of the 2004 transparency study. The Department must be satisfied that the study shows the transparency standard will not be violated before the wetlands can be used for the discharge. This report has already been submitted to the Department, but the Department has not yet completed its review of the report. Nevertheless, it was admitted into the record as IP Exhibit 79. The proposed Consent Order provides that, in the event IP's does not receive treated sanitary wastewater from the planned ECUA facility, IP will notify the Department and submit an alternate compliance plan to the Department for the Department's approval. The submittal and approval of an alternate compliance plan would extend the time for compliance with water quality standards by another six months. The Department amended the proposed Consent Order at the conclusion of the hearing to provide for notice to the public and an opportunity for persons to object to the Department's action on any alternate compliance plan. The Consent Order requires a "Plan of Action" to determine "whether there remains a critical period for ortho-phosphate loading to lower Elevenmile Creek and Perdido Bay." The proposed Consent Order requires IP to submit within 97 months (which would allow for five years of discharge to the wetland tract) a final report on whether there has been significant adverse impacts in the wetlands and Tee and Wicker Lakes resulting from the discharge of effluent pursuant to the interim limits for pH, DO, specific conductance, turbidity, and color. If the NSAI analysis shows no significant adverse impact has occurred, the proposed Consent Order contemplates that IP or the Department would establish alternative water quality criteria that would apply permanently in the wetland tract. IP is required by the Consent Order to submit quarterly progress reports of its progress toward compliance with the required corrective actions and deadlines. The Consent Order imposes a "stipulated penalty" of $500 per day for noncompliance with its terms. It also contains a statement that a violation of its terms may subject IP to civil penalties up to $10,000 per day. The Principal Factual Disputes A. The Evidence in General Much of the water quality and biological data presented by Petitioners were limited in terms of the numbers of samples taken, the extent of the area sampled, and the time period covered by the sampling. Much of the expert testimony presented by Petitioners was based on limited data, few field investigations, and the review of some, but not all relevant permit documents.8 On the other hand, the Livingston studies represent perhaps the most complete scientific evaluation ever made of a coastal ecosystem. Even Dr. Lane called the Livingston studies "huge" and "amazing." Therefore, with regard to the factual issues raised by Petitioners that involved scientific subjects investigated in the Livingston studies, Petitioners' data and the expert opinions based on those data were generally of much less weight than the data and conclusions of the Livingston studies. However, the Livingston studies did not address all of the factual issues in dispute. Some of the evidence presented by Petitioners regarding historical water quality conditions in Perdido Bay and Elevenmile Creek was lay testimony. The lay testimony was competent and sufficient to prove the existence of environmental conditions that are detectable to the human senses, such as an offensive smell, a dark color, or a sticky texture. Historical Changes in Perdido Bay Petitioners claim that, before the Cantonment mill began operations in the 1940s, Perdido Bay was a rich and diverse ecosystem and a beautiful place for swimming, fishing, boating, and other recreational activities. Petitioners blame the mill effluent for all the adverse changes they say have occurred in Perdido Bay. Petitioners claim that the water in Perdido Bay was much clearer before the mill was built. James Lane, who has lived on the Bay for 65 years, said he began to notice in the late 1940s that the water was becoming dark and filled with wood fibers. Mr. Lane recalls that there used to be an abundance of fish in the Perdido Bay, including croakers, pinfish, flounder, redfish, minnows, and catfish. Now Mr. Lane sees few of these fish in the Bay and he believes the remaining fish are unfit to eat because they look diseased to him. Mr. Lane said there were extensive areas of sea grasses in the Bay which supported large numbers of shrimp, crabs, and mussels, but these grasses are now gone. The Lane family used to enjoy swimming in Perdido Bay but stopped swimming years ago because the water felt sticky and often had a brown foam or scum on the surface. Mr. Lane and others members of FOPB claim to have gotten infections from swimming in the Bay. Mr. Lane and other witnesses described the odor of Elevenmile Creek near the mill as unpleasant and, at times, offensive. They consider the Creek to be too polluted for swimming. Donald Ray, who has been a Department biologist for 30 years, said he has received many complaints from citizens about the conditions in Perdido Bay. He said the foam that occurs in Perdido Bay is not natural foam, but one that persists and leaves a stain on boats. On the other hand, it is Dr. Livingston's opinion that the ecological problems of Perdido Bay are due primarily to the opening of Perdido Pass around 1900. The opening of the pass allowed Gulf waters to enter Perdido Bay and caused salinity stratification in the Bay, with marine waters on the bottom and fresh water from the Perdido River, Elevenmile Creek, and other tributaries on the top. The stratification occurs regularly in the lower Bay, but only during low flow conditions in most of the upper Bay, Perdido River, and Elevenmile Creek. It restricts DO exchange between the upper and lower water layers and results in low DO levels in the lower layer. Low DO, or "hypoxia," is the primary cause of reduced biological diversity and productivity in Perdido Bay. Dr. Livingston's initial study of the Perdido Bay system (1988-91) included an investigation of historical conditions, using documents and maps, anecdotal statements of area residents, as well as historic water quality and sediment data. Dr. Livingston found general agreement from most sources that: [P]rior to the 1940s, the various rivers and the bay in the Perdido Basin were quite different from what they are today. Eyewitness accounts from 1924 indicate a bay that was clear and "bluish" in color; the bottom could be seen at depths of five feet. According to resident' accounts, seagrasses grew from Garth Point to Witchwood; the grassbeds provided cover for many shrimp that were taken at the time. Flounder were taken with gigs and crabs were taken with hand nets. According to these accounts, the water from the various rivers and creeks in the area was relatively clear, and white sand/gravel bottoms were dominant forms of habitat in the freshwater and estuarine systems. The water was tea- colored but clear. Redfish, trout, blue crabs, shrimp, and mullet were abundant. * * * [T]hrough the early 1900s, the Elevenmile Creek was said to be crystal clear with soft white sand and good fishing. * * * According to various reports, in the early 1950s, the waters of Elevenmile Creek turned black, with concentrations of foam observed floating on the surface. By 1986, more than 28 million gallons of largely untreated effluent was flowing into the Elevenmile Creek- Perdido Bay system each day. Experiments by the Florida Game and Fresh Water Fish Commission had shown that the creek waters were lethal. The Florida Board of Health reported that Elevenmile Creek was "grossly polluted" and that Perdido Bay had been "greatly degraded within the 1.5 mile radius of where Elevenmile Creek dumped into the bay." Nevertheless, Dr. Livingston discounted much of this historical record, especially with regard to the belief that the mill's effluent had adversely affected Perdido Bay, because it was not based on what he considers reliable scientific data. He found "little evidence in the long- term sediment record of a direct response to historical activities of the pulp and paper mill, suggesting that the flushing capacity of Perdido Bay quickly diluted effluents that enter Perdido Bay from Elevenmile Creek." The evidence is persuasive that the salinity stratification in Perdido Bay is a major cause of low DO in the Bay.9 However, the stratification does not explain all of the observed changes in water quality, biological productivity, and recreational values. The stratification does not account for the markedly better conditions in the Bay that existed before the Cantonment paper mill began operations. The Livingston studies confirmed that when nutrient loadings from the mill were high, they caused toxic algae blooms and reduced biological productivity in Perdido Bay. As recently as 2005, there were major toxic blooms of heterosigma in Tee and Wicker Lakes caused by increased nutrient loading from the mill. Other competent evidence showed that the mill's effluent has created nuisance conditions in the past, such as foam and scum, which adversely affected the recreational values of these public waters. Some of the adverse effects attributable to the mill effluent were most acute in the area of the Bay near the Lanes' home on the northeastern shore of the Bay, because the flow from the Perdido River tends to push the flow from Elevenmile Creek toward the northeastern shore. Petitioners were justified in feeling frustrated in having their concerns about the adverse impacts of the mill's effluent discounted for many years, and in having to wait so long for an effective regulatory response. However, with regard to many of their factual disputes, Petitioners' evidence lacked sufficient detail regarding the dates of observations, the locations of observations, and in other respects, to distinguish the relative contribution of the mill effluent from other factors that contributed to the adverse impacts in the Bay, such as salinity stratification, natural nutrient loading from the Perdido River and other tributaries, and anthropogenic sources of pollution other than the paper mill.10 Petitioners generally referred to the mill effluent and its impacts to Perdido Bay as if they have been relatively constant for 65 years. The Livingston studies, however, showed clearly that the mill effluent and its impacts, as well as important factors affecting the impacts, such as drought, have frequently changed. Focusing on the fact that the average daily BOD loading allowed under the proposed permit would be same as under the 1989 TOP (4,500 ppd), Petitioners remarked several times at the final hearing that the proposed permit for the mill was no different than the existing permit. According to Petitioners, if the mill is allowed to operate under the proposed permit, one can predict that the future adverse impacts to Perdido Bay will be the same as the past adverse impacts. However, the 1989 TOP and the proposed permit are very different. Therefore, it cannot be assumed that the impacts would be the same. Petitioners' evidence was generally insufficient to correlate past adverse impacts to Perdido Bay with the likely impacts that would occur under the proposed permit. In contrast, that was the focus of the Livingston studies. Development of the WQBELs Whether Perdido Bay is an Alluvial System and Whether Elevenmile Creek is a Blackwater Stream Alluvial systems are generally characterized by relatively high nutrient inputs from tributaries and associated wetlands that provide for high biological productivity in the receiving bay or estuary. Petitioners disagree with Dr. Livingston's characterization of the Perdido Bay system as an alluvial system. Petitioners presented the testimony of Donald Ray, a Department biologist, who said that the Perdido River is not an alluvial river and the natural nutrient loadings to Perdido Bay are less than would occur in an alluvial system. Although it is curious that two experienced biologists cannot agree on whether Perdido Bay is part of an alluvial system, the dispute is immaterial because it was not shown by Petitioners that any of the four proposed Department authorizations is dependent on the applicability of the term "alluvial." The WQBELs developed by Dr. Livingston, for example, were not dependent on a determination that Perdido Bay meets some definition of an alluvial system, but were based on what the data indicated about actual nutrient loadings into Perdido Bay and the Bay's ecological responses to the loadings. If the dispute is not immaterial, then Dr. Livingston's opinion that Perdido Bay is part of an alluvial system is more persuasive, because he has greater experience and knowledge of the coastal bay systems on the Florida Panhandle than does Mr. Ray. Petitioners also take exception to Dr. Livingston's characterization of Elevenmile Creek as a blackwater creek. Petitioners claim Elevenmile Creek is naturally clear to "slightly tannic" stream. This dispute, however, is also immaterial because the proposed permit calls for the termination of the mill's discharge to Elevenmile Creek, including its contribution of color to the Creek. Petitioners assert that Dr. Livingston's characterizations of Perdido Bay as an alluvial system and Elevenmile Creek as a blackwater creek show he is biased and that his "overall analysis" lacks credibility. Dr. Livingston's opinions on these points do not show bias nor compromise the credibility of his overall analysis of the Perdido Bay system, which is actually the product of many scientists and based on 18 years of data.11 2. Selection of 1988 and 1989 Mill Loadings as a Benchmark for the WQBELs Generally, the Department establishes effluents limits for nutrients based on Chlorophyl A analysis. However, the Livingston studies showed that Chlorophyl A was not significantly associated with plankton blooms in Perdido Bay. Therefore, the Department accepted Dr. Livingston's recommendation to base the WQBELs for nutrients on the nutrient loading from the mill in 1988 and 1989, which the Livingston studies showed were good years for Perdido Bay with respect to its biological health. Phytoplankton are a fundamental component of the food web in Perdido Bay. The number of phytoplankton species is a sensitive indicator of the overall ecological health of the Bay. The Livingston studies showed that the loadings of ammonia and orthophosphate from the mill had a direct effect on the number of phytoplankton species. In the years when the mill discharged high loadings of ammonia and orthophosphate, there were toxic algae blooms and reduced numbers of phytoplankton species. In 1988 and 1989, when the loadings of ammonia and orthophosphate were lower, there were no toxic algae blooms, and there were relatively high numbers of phytoplankton species. Petitioners dispute that 1988 and 1989 are appropriate benchmarks years for developing the WQBELs because Petitioners claim there were high nutrient loadings and algae blooms in those years. Mr. Ray testified that the Department received citizen complaints about algae blooms in those years. Dr. Livingston's analysis was more persuasive, however, because it distinguished types of algae blooms according to their harmful effect on the food web and was based on considerably more water quality and biological data. Petitioners also presented water quality data collected from 1971 to 1994 by the Bream Fishermen Association at one sampling station in the northeastern part of Perdido Bay, which indicate that in 1988 and 1989, the concentrations of nutrients were sometimes high. The proposed nutrient WQBELs were derived from data about the actual response of the Perdido Bay ecosystem over time to various inputs. The sampling data from the Bream Fishermen Association were not correlated to ecosystem response and, therefore, are insufficient to refute Dr. Livingston's evidence that 1988 and 1989 were years of relatively high diversity and productivity in Perdido Bay. Furthermore, nutrients loadings would be reduced under the proposed permit. 3. DO and Sediment Oxygen Demand The parties agreed that sediment oxygen demand (SOD) is a major reason for the low DO in Perdido Bay in areas where there is salinity stratification. SOD is caused by the bacterial degradation of particulate organic matter that settles to the bottom. SOD decreases DO in the lower water layer, but also can cause a reduction of DO in the surface layer. Low DO has substantially reduced the biological productivity of Perdido Bay. Thomas Gallagher, an environmental engineer and water quality modeling expert, showed that even without the mill discharge, DO in the bottom waters of Perdido Bay would fall below the applicable Class III water quality standard of 5 mg/l. Low DO conditions are now a "natural" characteristic of the Bay, usually occurring during summer and early fall when freshwater flows are low and temperatures are high. At these times, surface water DO levels are usually above the state standard, but DO in the bottom waters usually range between 1.0 and 2.0 mg/l. Petitioners claim that the dominant source of the sediment in Perdido Bay is the carbon and nutrient loading in the mill's effluent that flows into the Bay from Elevenmile Creek. Mr. Ray, who sampled sediments in Perdido Bay over several years for the Department, believes that the mill effluent is the main source of the sediment and, consequently, the sediment oxygen demand. Dr. Livingston did extensive sediment analyses in Perdido Bay. He compared the data with sediment data from other bays on the Florida Panhandle. It is Dr. Livingston's opinion that the mill effluent contributes little to the sediments or SOD in Perdidio Bay. His initial three-year study concluded: [T]he hypoxic conditions of Elevenmile Creek are due, in part, to mill discharges. However, low dissolved oxygen conditions at depth in Perdido Bay are not due to the release of mill effluents from Elevenmile Creek, and can actually be attributed to a long history of human activities that include alteration of the hydrological interactions at the gulfward end of the estuary. The entry of saline water from the Gulf and the resulting stratification have been coupled with various forms of human development that release carbon, nitrogen, and phosphorus compounds into the estuary. The landward movement of high-salinity water from the Gulf of Mexico, laden with various types of oxygen-consuming compounds from various sources, together with oxygen demand from sediments to the lower water column that is isolated from reaeration due to salinity stratification, are thus responsible for a large portion of the observed hypoxic conditions at depth in Perdido Bay. [The paper mill] is responsible for a relatively small amount of these oxygen-consuming effects. In East Bay, which is a part of Escambia Bay and a relatively pristine system, there was SOD that caused DO to fall below standards in the lower water layer. Dr. Livingston also found severe oxygen deprivation at times in the lower waters of the Styx River and Perdido River, which do not receive mill effluent. Dr. Livingston believes the low DO that occasionally occurs in these rivers is due to agricultural runoff, urban discharges, and natural organic loading from adjacent wetlands. There was extensive evidence, some of which was presented by Petitioners, showing that the mill loadings of carbon and nutrients are less than the loadings from the Perdido River. Mr. Gallagher concluded that the sediment in the Bay is mostly "terrestrial carbon," and not from the mill's effluent. His water quality modeling work determined that the mill's effluent reduced bottom layer DO by about 0.1 mg/l. Dr. Lane believes that the organic solids in the mill's effluent are accumulating in Perdido Bay sediments, but Mr. Gallagher pointed out that degrading solids cannot accumulate because they are degrading. In addition, Mr. Gallagher said that logic dictates that solids that have not settled out after spending several days in the settling basins of IP's WWTP are not going to readily settle in the more turbulent environment of Perdido Bay. Some of the solids are oxidizing or being transported into the Gulf. Mr. Gallagher determined that in summer and late fall, 60 percent of the water in the bottom layer in the upper Bay is from the Gulf and almost all the rest is from the Perdido River. He believes only 0.1 to 2.0 percent of the water in the bottom layer is mill effluent. Dr. Livingston responded to the BOD and carbon issues that "these Petitioners raised over the years" by investigating them as part of the Livingston studies. He found no relationship between loading and DO. Dr. Livingston concluded that the mill was not having much effect on SOD. Dr. Livingston and Mr. Gallagher referred to a carbon isotope study of the sediment in Perdido Bay by Coffin and Cifuentes. The isotope study was a part of the initial three-year Livingston study entitled "Ecological Study of the Perdido Bay Drainage System." The study identified a unique carbon isotope in the mill's effluent and looked for traces of the isotope in the sediments of Perdido Bay. Very little of the carbon isotope was found in the sediments, suggesting that the mill's effluent was not contributing much to the sediments. The carbon isotope study was not offered into evidence. Petitioners assert that the isotope study is hearsay and cannot be used to support a finding of fact.12 However, Dr. Livingston's opinion about the sources of the sediment was not based solely on the isotope study. The isotope study was consistent with his other studies and with Mr. Gallagher's water quality modeling analysis. Therefore, the conclusions of the isotope study serve to support and explain Dr. Livingston's expert opinion that the mill effluent is not the primary source of the sediment and low DO in Perdido Bay. Dr. Livingston summarized his opinion regarding DO and SOD as follows: "all of these lines of evidence, from all the bays that I have worked in and from them scientific literature and from our own studies, every line of evidence simply eliminated the pulp mill as the primary source of the low dissolved oxygen in the bay." 4. Long-term BOD BOD is a measurement of the oxygen demand exerted by the oxidation of carbon, nitrogen, and the respiration of algae. A five-day BOD analysis is the standard test used in the regulatory process. The use of the standard five-day BOD measurement is not restricted to organic material that is expected to completely degrade in five days. Five days is simply the time period selected to standardize the measurement. For example, the five-day BOD analysis is used in the regulation of domestic wastewater even though most of the organic material in domestic wastewater takes about 60 days to degrade and would exert an oxygen demand throughout the 60 days. It was undisputed that paper mill effluent will continue to consume DO after five days. One estimate given was that it would take 100 days to completely degrade. Some of the naturally occurring organic material flowing into Perdido Bay from the Perdido River and Gulf of Mexico would also include material with long-term BOD. Petitioners claim that long-term BOD analysis is essential to determine the true impacts of the mill's effluent on Perdido Bay, but they failed to show that the Livingston studies did not consider long-term BOD.13 The evidence shows that Dr. Livingston's studies accounted for DO demand in all its forms and for any duration. Dr. Livingston's studies focused on the response of Perdido Bay's food web to nutrients and various other inputs as they changed over time. If long-term BOD was having an adverse effect on the food web, the Livingston studies were designed to detect that effect. Dr. Livingston's opinion is that long-term BOD is not a significant problem for Perdido Bay because the Bay is part of a dynamic system and the sediments are regularly flushed out or otherwise recycled in a matter of a few months, not years.14 5. Carbon Dr. Lane, who is a marine biologist, believes a major reason for low DO in Perdido Bay is "organic carbonaceous BOD." However, Dr. Lane presented no evidence other than statements of the theoretical process by which carbon from the mill would cause low DO in the Bay. She presented no scientific data from Perdido Bay to prove her theory.14 Dr. Livingston said that 16 years of studies in the Bay have found DO and carbon to be "totally uncorrelated." Other Water Quality Issues 1. Toxicity Petitioners allege that the mill effluent has had occasional problems passing toxicity tests. Un-ionized ammonia is the likely cause, and the reduction of un-ionized ammonia in the proposed permit and the distribution of the effluent over the wetland tract should prevent toxicity problems from recurring. Dr. Livingston examined tissue samples from various fish and invertebrates and found low levels of bioconcentrating chlorine compounds in Perdido Bay that he believes were "probably associated with discharges from the Pensacola mill." Although they are toxic substances, Dr. Livingston found no diseased organisms and no evidence of food web magnification of these potentially bioaccumulable compounds. Mr. Ray testified that Perdido Bay was the worst of all the bays he has studied in terms of high sediment metals. Most of his sediment sampling was done in 1977 through 1983, years before the Livingston studies got started. His knowledge about subsequent years was based on only two samples, one in 1988 and another in 2005.16 Dr. Lane did an analysis of 12 sediment samples in Perdido Bay, Perdido River, and Elevenmile Creek in 1999 and concluded that "Eleven Mile Creek appears to be the source of all elevated levels [of metals] except silver." The Livingston studies included toxics analysis of Perdido Bay sediments, including metals, dioxin, and other chlorinated organic compounds. Dr. Livingston testified that metal concentrations in the sediments of Elevenmile Creek did not differ from the metal concentrations in the Perdido River and other streams in the area. The concentrations were not significantly different from concentrations in other bays he has studied that do not have a paper mill discharge. 2. Mutagenic Compounds Petitioners claim that there are chemicals in paper mill effluent that are mutagenic and are causing changes in the sex of fish. They introduced an exhibit from the Department's exhibit list (DEP Exhibit 38) that discussed investigations of effluent from the Cantonment mill and other Florida paper mills which found abnormally high testosterone levels and related mutations in female Gambusia fish. The most recent such study16 implicates androgens produced by the microbial degradation of natural chemicals in the trees pulped at the mills, especially softwood trees (pines), as the cause. Petitioners believe IP's proposal to begin using 100 percent pine at the Cantonment mill could cause mutations in fish and other animals exposed to the mill's effluent. Although IP and the Department are aware of the sex change studies, there was no evidence presented that the subject was investigated or addressed by them in the permitting process. DEP Exhibit 38 is hearsay and no non-hearsay evidence was presented on the issue of mutagenic compounds in the mill's effluent. Therefore, no finding of fact in this Recommended Order can be based on the data and analysis in DEP Exhibit 38.18 Furthermore, Petitioners did not raise the issue of mutagenic compounds in the mill's effluent discharge in their petitions for hearing or in the pre-hearing stipulation.19 Antidegradation Policy Petitioners claimed the proposed permit violated the antidegradation policy for surface waters established in Florida Administrative Code Rule 62-302.300(1). An element of that policy is to require, for any discharge that degrades water quality, a demonstration that the degradation is necessary or desirable under circumstances which are clearly in the public interest. Florida Administrative Code Rule 62-4.242(1)(a) contains a list of factors to be considered and balanced in applying the antidegradation policy. These include consideration of whether the proposed project would be beneficial to public health, safety, or welfare and whether the discharge would adversely affect the, conservation of fish and wildlife, and recreational values. The greater weight of the evidence supports the position of IP and the Department that the proposed discharge to the wetland tract would be an improvement over the existing circumstances. However, as discussed below, there was an insufficient demonstration that the discharge would not cause significant adverse impact to the biological community within the wetland tract, and there was an insufficient demonstration that the Perdido River OFW would not be significantly degraded. Without sufficient demonstrations on these points, it is impossible to find that the degradation has been minimized. Petitioners did not prove that the proposed project was not in the public interest, but the burden was on IP to show the opposite. Because IP did not make a sufficient demonstration regarding potential adverse impacts on the biological community within the wetland tract and on the Perdido River OFW, IP failed to prove compliance with Florida's antidegradation policy. Perdido River OFW Florida Administrative Code Rule 62-302.300(2) contains the standards applicable to OFWs and prohibits a discharge that significantly degrades an OFW unless the proposed discharge is clearly in the public interest or the existing ambient water quality of the OFW would not be lowered.20 Petitioners contend that the water quality of the Perdido River would be significantly degraded by the mill's effluent under the authorizations. Mr. Gallagher's modeling analysis predicted improved water quality in the Perdido River for DO and several other criteria over the conditions that existed in 1979, the year the river was designated as an OFW. However, the modeling also predicted that the discharge would reduce the DO in the river (as it existed in 1979) by .01 mg/l under unusual conditions of effluent loading at the daily limit (based on a monthly average) during a drought. Mr. Gallagher's modeling indicated that a very small (less than 0.1 mg/l) reduction in DO in the surface water of the lower Perdido River would occur as a result of the proposed project. He considered that to be an "insignificant" effect and it was within the model's range of error. However, IP made the wrong comparisons in its modeling analysis to determine compliance with the OFW rule, Florida Administrative Code Rule 62-4.242(2). Mr. Gallagher used the model to compare the DO levels in the Perdido River that would result from the mill's discharge of BOD at the proposed permit limit of 4,500 ppd with the predicted DO levels that would have existed in 1979 if St. Regis was discharging 5,100 ppd of BOD. IP should have compared the DO levels resulting from the proposed permit with the actual DO levels in 1979, or at least the DO levels that the model would have simulated using actual BOD loadings by St. Regis in 1979. The DO levels that would have existed in 1979 if St. Regis had discharged 5,100 ppd of BOD are irrelevant. No DO data from 1979 were presented at the hearing and no explanation was given for why DO data for 1979 were not used in the analysis. No evidence was presented that St. Regis discharged 5,100 ppd of BOD as a monthly average in 1979.21 It might have discharged substantially less.22 Petitioners did not prove that the proposed permit would significantly degrade the Perdido River, but the burden was on IP to show the opposite. Because the wrong anti-degradation comparison was made, IP failed to provide reasonable assurance that the Perdido River would not be significantly degraded by the proposed discharge. The Experimental Use of Wetlands Exemption Petitioners claim that IP did not demonstrate compliance with all the criteria for the experimental use of wetlands exemption. There are seven criteria set forth in Florida Administrative Code Rule 62-660.300(1)(a) that must be met to qualify for the exemption. IP is seeking a waiver from two of the criteria and those will be discussed later in this Recommended Order. Impact on the Biological Community a. In General Florida Administrative Code Rule 62- 660.300(1)(a)1 requires a demonstration that "the wetlands ecosystem may reasonably be expected to assimilate the waste discharge without significant adverse impact on the biological community within the receiving waters." Dr. Nutter used a "STELLA" wetland model to predict the effects of discharging mill effluent to the wetland tract. The STELLA model was programmed to evaluate the "water budget" for the wetland tract, as well as simulate the fate of nitrogen, phosphorus, and total dissolved solids (TDS). Petitioners contend that the STELLA model is too limited to adequately assess potential adverse impacts on the biological community, but the model was not the sole basis upon which Dr. Nutter formed his opinions. He also relied on relevant scientific literature, his general knowledge of wetland processes, and on his 40 years of experience in land treatment of wastewater. The STELLA model predicted that there would be about a 10 percent reduction in nitrogen and phosphorus. Dr. Nutter testified that that figure was a conservative prediction and the scientific literature suggests there could be a greater reduction. Wetlands are effective in processing TSS and BOD. Dr. Nutter ran the model with the proposed permit limits and the model predicted 90 to 95 percent BOD removal before the effluent reached berm 4. Dr. Nutter expected pH levels to be in the range of background levels in the wetlands, which vary between 6.5 and 8.0.23 Dr. Nutter predicts that in high flow conditions, there will be more DO in the water flowing from the wetlands into Tee and Wicker Lakes. During low flow conditions, he predicts no change in the DO level. Background DO levels in the wetland tract now range between and 5.0 mg/l. Mr. Gallagher's water quality modeling for Perdido Bay assumed that the water flowing from the wetland tract would have a DO level of 2.0 mg/l, which Dr. Nutter believes this is a conservative estimate, meaning it could be higher. Specific Conductance A fundamental premise of the relocated discharge is that it solves the mill's decades-long failure to meet the stricter water quality standards applicable in the fresh waters of Elevenmile Creek because the new receiving waters would be marine waters. However, the majority (about 70 percent) of the wetland tract is a freshwater wetland. The tidal influence does not reach above berm 4 in the wetland tract. Before the mill's effluent reaches marine waters, it would be distributed over the entire freshwater portion of the wetland tract. Dr. Livingston explained that, but for the mill's discharge, minnows and other small "primary" freshwater fish species would be found in Elevenmile Creek. The primary fish cannot tolerate the mill's discharge because the high levels of sodium chloride and sulfide (specific conductance) cause osmoregulatory problems, disrupting their blood metabolism and ion regulation. High conductivity also eliminates sensitive microinvertebrates. Because Tee and Wicker Lakes are in the tidally influenced, southern portion of the wetland tract, the fish and other organisms in the lakes are polyhaline, which means they are adapted to rapid changes in salinity, temperature and other habitat features. That is not true of the organisms in the freshwater area of the wetland tract. A constructed wetlands pilot project was built in 1990 at the Cantonment mill. The initial operational phase of the pilot project was July 1991 through June 1993. A second phase was conducted for just three months, from September 1997 through December 1997. The pilot project generated some information about "benthic macroinvertebrate diversity," which was "low to moderate." In addition, there were "observations" made of "three amphibian species, three reptile species, approximately 31 bird species, three fish species that were introduced, and two mammal species." The information generated by the pilot project is ambiguous with respect to the effect of the effluent on fish and other organisms attributable to the specific conductance of the effluent, indicating both successes and failures in terms of survival rates. Moreover, the data presented from the pilot wetland project lacks sufficient detail, both with respect to the specific conductivity of the effluent applied to the wetlands and with respect to the response of salt-intolerant organisms to the specific conductivity of the effluent, to correlate the findings of the pilot project with the proposed discharge to the wetland tract. Freshwater wetlands do not have naturally high levels of specific conductance. The specific conductance in the wetland tract is 100 micromhos/cm or less.24 The proposed interim limit for specific conductance for the discharge into the wetland tract is "2,500 micromhos/cm or 50% above background, whichever is greater." Using total dissolved solids (TDS) as a surrogate for analyzing the effects on specific conductance, Dr. Nutter predicted that average TDS effluent concentrations would only be reduced by 1.0 percent.25 His prediction is consistent with the literature on the use of wetlands for wastewater treatment, which indicates wetlands are not effective in reducing TDS and specific conductance. The wetland tract would not assimilate TDS in mill's effluent. The potential exists, therefore, for the discharge to cause specific conductance in the freshwater area of the wetland tract to reach levels that are too high for fish and other organisms which can only live, thrive, and reproduce in waters of lower specific conductance. It was the opinion of Barry Sulkin, an environmental scientist, that the "freshwater community" would be adversely impacted by the salts in the effluent. Although the freshwater area of the wetland tract is not dominated by open water ponds, creeks, and streams,26 the evidence shows that it contains sloughs, creeks, and other surface water flow. No evidence was presented about the biological community associated with the sloughs, creeks, and other waters in the wetland tract, other than general statements about the existing plants and the trees that are being planted. Petitioners did not prove that granting the exemption would cause significant adverse impact to the biological community in the freshwater area of the wetland tract, but it was IP's burden to affirmatively demonstrate the opposite. Because IP did not adequately address the impact of increased specific conductance levels on fish and other organisms in the freshwater area of the wetland tract, IP did not provide reasonable assurance that the proposed discharge would be assimilated so as not to cause significant adverse impact on the biological community within the wetland tract. Tee and Wicker Lakes When the Department issued the proposed exemption order, it did not have sufficient data and analyses regarding Tee and Wicker Lakes to determine with reasonable confidence that these waterbodies would not be adversely impacted by the proposed discharge. A transparency study of the lakes, which IP introduced as an exhibit at the final hearing, had not previously been reviewed by Department staff. Dr. Livingston is still developing data and analyses for the lakes to use in the NSAI analysis. The proposed NSAI monitoring plan states that one of its objectives is to determine the "ecological state" of the tidal ponds, including whether the ponds "could comprise an important nursery area for estuarine populations." In addition, the monitoring is to determine "the normal distributions of salinity, temperature, color, and dissolved oxygen" in the tidal ponds. These are data that must be known before a determination is possible that the discharge would not have a significant adverse impact on the biological community associated with the lakes. Petitioners did not prove that granting the exemption would cause significant adverse impact to the biological community of Tee and Wicker Lakes, but it was IP's burden to affirmatively demonstrate the opposite. Because insufficient data exists regarding baseline conditions in Tee and Wicker Lakes, IP did not provide reasonable assurance that the proposed discharge would not cause significant adverse impact on the biological community within the wetland tract. 2. Public Interest and Public Health Florida Administrative Code Rule 62- 660.300(1)(a)2. requires the applicant to demonstrate that "granting the exemption is in the public interest and will not adversely affect public health or the cost of public health or other related programs." Public Interest Petitioners made much of a statement by Mr. Evans that the public interest consideration in this permit review was “IP’s interest”. Petitioners claimed that this statement was an admission by the Department that it gave no consideration to the public interest. However, in context, Mr. Evan's statement was not such an admission. Moreover, Florida Administrative Code Rule 62-302.300(6) expressly provides that the public interest is not confined to activities conducted solely for public benefits, but can also include private activities conducted for private purposes. The proposed exemption order does not directly address the public interest criterion, but it notes that "existing impacted wetlands will be restored." In IP's application for the exemption, it states that the exemption would "contribute to our knowledge of wetlands in general and to the refinement of performance guidelines for the application of pulp mill wastewater to wetlands." Petitioners dispute that the wetland tract is being restored. The evidence shows that some restoration would be accomplished. The natural features and hydrology of the tract have been substantially altered by agriculture, silviculture, clearing for pasture, ditching, and draining. The volume of flow in the discharge would offset the artificial drainage that occurred. A mixture of hardwood tree species would be planted, which would restore more of the diversity found in a natural forested wetland. However, an aspect of the project that could substantially detract from the goal of restoration is the transformation of the freshwater wetlands to an unnatural salty condition. Dr. Nutter said that the salt content of the mill's effluent was equivalent to Gatorade, but for many freshwater organisms, that is too salty. Another public benefit of the exemption that was discussed at the final hearing is that it would allow IP to relocate its discharge from Elevenmile Creek and thus end its adverse impacts to the Creek. That public benefit is not given much weight because IP has not shown that its adverse impacts to Elevenmile Creek cannot be eliminated or substantially reduced by decreasing its production of paper products. The evidence shows only that IP has attempted to solve its pollution problems through environmental engineering.27 A sufficient public interest showing for the purpose of obtaining the experimental use of wetlands exemption should not be a rigorous challenge if all the other exemption criteria are met, because that means the proposed wetland discharge was shown to have no harmful consequences. The public interest showing in this proceeding was insufficient, however, because the other exemption criteria were not met and there is a reasonable potential for harmful consequences. Public Health Petitioners raised the issue of the presence of Klebsiella bacteria, which can be a public health problem when they occur at high levels. The more detection of Klebsiella, however, does not constitute a public health concern. Petitioners did not show that Klebsiella bacteria exist in the mill's effluent at levels that exceed applicable water quality standards. Petitioners also did not present competent evidence about the likely fate of Klebsiella bacteria in the proposed effluent distribution system. Dr. Lane's statement that Klebsiella bacteria might be a problem is not sufficient to rebut IP's prima facie showing that the proposed permit will not cause or contribute to a violation of water quality standards applicable to pathogenic bacteria. Petitioners also point to past incidents of high total coliform concentrations in Elevenmile Creek in support of their contention that the proposed exemption poses a risk to public health. However, these past incidents in Elevenmile Creek are not sufficient to prove that fecal coliform in the effluent discharged to the wetland tract will endanger the public health. IP proposes to restrict access to the wetland distribution system. Furthermore, the fate of bacteria in the wetlands is much different than in the Creek. The more persuasive evidence is that the wetland tract would destroy the bacteria by solar radiation and other mechanisms so that bacteria concentrations in waters accessible by the public would not be at levels which pose a threat to public health. Protection of Potable Water Supplies and Human Health Florida Administrative Code Rule 62- 660.300(1)(a)5. requires the applicant for the exemption to demonstrate that "the presently specified criteria are unnecessary" to protect potable water supplies and human health, which presupposes that the applicant has applied for an exemption from water quality criteria applicable to human health. IP has not requested such an exemption and, therefore, this particular criterion appears to be inapplicable. Even if it were applicable, the evidence does not show that the effluent would cause a problem for potable water supplies or human health. 4. Contiguous Waters Florida Administrative Code Rule 62- 660.300(1)(a)6. requires a showing that "the exemption will not interfere with the designated uses of contiguous waters." Contiguous waters, for the purpose of this criterion, would be Elevenmile Creek, Perdido Bay, and the Perdido River. Petitioners argue that Tee and Wicker Lakes should be considered contiguous waters for the purpose of this criterion of the exemption rule. However, Tee and Wicker Lakes are within the exempted wetland tract so they are not contiguous waters. Petitioners contend that IP failed to account for the buildup of detritus in the wetlands and its eventual export to Perdido Bay. Their contention is based primarily on the opinion of Dr. Kevin White, a civil engineer, that treatment wetlands must be scraped or burned to remove plant buildup. However, Dr. Nutter explained that periodic removal of plant material is needed for the relatively small "constructed wetland" treatment systems that Dr. White is familiar with, but should not be needed in the 1,464-acre wetland tract. Nevertheless, because IP did not provide reasonable assurances that the proposed permit and related authorizations would not significantly degrade the Perdido River OFW, IP failed to meet this particular exemption criterion regarding interference with contiguous waters. 5. Scientifically Valid Experimental Controls Florida Administrative Code Rule 62- 660.300(1)(a)6. requires a showing that "scientifically valid environmental controls are provided . . . to monitor the long-term effects and recycling efficiency." Petitioners' argument about this particular criterion was largely misplaced. The term "environmental controls" modifies the term "monitor" and connotes only that the experiment would be monitored in a manner that will generate reliable information about long-term effects and performance. For monitoring purposes, IP's proposed NSAI protocol is an innovative and comprehensive plan that complies with this exemption criterion. Petitioners' objections to the lack of sufficient information about Tee and Wicker Lakes is more appropriately an attack on the sufficiency of IP's showing that its discharge would not cause a significant adverse impact on the biological community within the wetland tract. That issue was discussed above. 6. Duration of the Exemption Petitioners argue that the exemption can not exceed five years in duration, but the time schedules established by the proposed Consent Order and proposed permit would allow the exemption to be in effect for nine years. The Department's exemption order states that the five years does not begin to run until IP begins to discharge effluent at D-003 into the wetland tract. The possibility that IP might seek to renew the exemption after five years does not make the exemption something other than a five-year exemption. The Department's action on the request to renew the exemption would be subject to public review and challenge by persons whose substantial interests are affected. The Waiver The proposed waiver order would excuse IP from compliance with the criteria in Florida Administrative Code Rule 62-660.300(1)(a)3. and 4., which require that public access and recreation be restricted in the area covered by the exemption for experimental use of wetlands. Without the waiver, the public would have to be excluded from Tee and Wicker Lakes. Section 120.542, Florida Statutes, requires a showing by the person seeking the waiver that the purpose of the underlying statute will be achieved by other means and the application of a rule would create a substantial hardship or would violate principles of fairness. Petitioners contend that IP failed to demonstrate substantial hardship. However, Petitioners do not want public access to Tee and Wicker Lakes restricted. The sole reason for their objection to the proposed waiver is apparently to thwart the issuance of the exemption. Section 120.542, Florida Statutes, defines "substantial hardship" as a demonstrated economic, technological, legal, or other type of hardship to the person requesting the waiver. In the proposed waiver order, the Department identifies IP's hardship as the possibility that denial of the waiver could result in denial of IP's NPDES permit and closure of the mill. The proposed waiver order then describes the number of jobs and other economic benefits of the mill that would be lost if the mill were closed. As discussed in the Conclusions of Law below, the Department's interpretation of Section 120.542, Florida Statutes, to accept a demonstration of hardship that is associated with denial of the waiver is mistaken. The statute requires that the hardship arise from the application of the rule. In this case, IP must demonstrate that it would suffer substantial hardship if it were required to restrict public access and recreation on Tee and Wicker Lakes. Petitioners claimed that IP has no authority to restrict the public from gaining access to Tee and Wicker Lakes because those are public waterbodies which the public has a right to enter and use. A substantial legal hardship for IP in complying with the exemption rule, therefore, is that compliance is impossible. The Consent Order 1. Compliance Schedule Subsections 403.088(2)(d) and (e), Florida Statutes, provide that no permit shall be issued unless a reasonable schedule for constructing, installing, or placing into operation of an approved pollution abatement facility or alternative waste disposal system is in place. Petitioners claim the time schedules for compliance are not reasonable. Petitioners presented no competent evidence, however, that the WWTP upgrades, pipeline construction, and other activities required by the proposed permit can be accomplished in a shorter period of time. One recurring theme in the Petitioners' case was that the adverse impacts associated with the continued discharge to Elevenmile Creek should not be allowed to continue, even for an interim period associated with construction of the WWTP upgrades and effluent pipeline. However, Petitioners also advocated the relocation of the discharge to the Escambia River, or to a "constructed wetlands." Both of these alternatives would have required a transition period during which the discharge to Elevenmile Creek would likely have continued. Furthermore, the Consent Order imposes interim limits on the discharge to Elevenmile Creek that would apply immediately upon issuance of the proposed permit. Although altered by the mill's effluent discharge, Elevenmile Creek is now a relatively stable biological system. The proposed permit would effectuate some improvement in the creek and Perdido Bay even during the construction phase. 2. Contingency Plan The proposed Consent Order includes a contingency plan in the event that the NSAI monitoring analysis shows adverse impacts to the biological community within the wetland tract. The plan provides for alternative responses including relocating all or part of the wetland discharge to Elevenmile Creek. Petitioners object to the plan, primarily because they contend it is vague. The provisions in the contingency plan for relocating all or part of the discharge from the wetland tract to Elevenmile Creek, appear to reflect a presumption that the negatives associated with continued discharge to the wetlands would outweigh the negatives associated with returning the discharge to Elevenmile Creek. However, it is not difficult to imagine scenarios where the harm to the biological community of the wetland tract is small in relationship to the harm to the biological community that might have reestablished itself in Elevenmile Creek. Because the selection of an alternative under the contingency plan requires the consideration of data and analyses associated with future events, it is impossible to know at this time whether future action taken by the Department and IP pursuant to the contingency plan would be reasonable. If the contingency plan is intended by the Department and IP to authorize future action when circumstances described in the plan are present, then the plan is too vague. On the other hand, there is adequate detail in the plan if the purpose of the plan is merely to establish a framework for future decision-making that would be subject to permit modification, public review and challenge. Clarification is needed. 2. Penalties Petitioners complained that the stipulated of $500 per day for violations of the proposed Consent Order is too small to provide a deterrent to a company of the size of IP. Petitioners are correct, but did not present evidence to show what size penalty would be appropriate.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Department of Environmental Protection enter a final order: Denying proposed revised NPDES Permit Number FL0002526- 001/001-IW1S; Disapproving revised Consent Order Number 04-1202; Denying IP's petition for authorization for the experimental use of wetlands; and Denying IP's petition for waiver. DONE AND ENTERED this 11th day of May, 2007, in Tallahassee, Leon County, Florida. S BRAM D. E. CANTER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 11th day of May, 2007.
Findings Of Fact The Parties. The Petitioner, Clifford O. Hunter, is the owner of real property located at Dekle Beach, Taylor County, Florida. Mr. Hunter's property is located at lot 53, Front Street, Dekle Beach, within section 22, township 7 south, range 7 east, Taylor County. Respondent, the Florida Department of Environmental Protection (hereinafter referred to as the "Department"), is an agency of the State of Florida with responsibility for, among other things, dredge and fill permits involving Florida waters. Mr. Hunter lived in a home on his Dekle Beach property until a storm in March of 1993 destroyed the home. Mr. Hunter's Application for Permit. On or about June 2, 1993, Mr. Hunter applied for a wetland resource permit to rebuild his home, construct a bulkhead and fill 1750 square feet of salt marsh. The permit was designated No. 62-232123-2 by the Department. Mr. Hunter also sought approval for the construction of a dock. The dock, however, is exempt from the permitting requirements of Rule 17- 312.050(1)(d), Florida Administrative Code. On July 21, 1993, the Department issued a Notice of Permit Denial. The Notice of Permit Denial was received by Mr. Hunter. On August 13, 1993, Mr. Hunter filed a Request for Formal Administrative Hearing with the Department contesting the denial of his permit application. The Department's Jurisdiction Over the Proposed Project. The proposed project involves dredging and filling in the waters of the State of Florida. A wetland resource permit is, therefore, required. Wetland jurisdiction of the State of Florida extends to the eastern edge of an existing concrete slab on Mr. Hunter's property from a canal adjacent to Mr. Hunter's northern boundary. The canal connects with the waters of the Gulf of Mexico. The Gulf of Mexico surrounding Dekle Beach, except for an area extending 500 feet outward from the town limits of Dekle Beach, is within the Big Bend Seagrasses Aquatic Preserve. The preserve is an Outstanding Florida Water (hereinafter referred to as an "OFW"). The evidence presented by the Department to support findings of fact 9, 10 and 11 was uncontroverted by Mr. Hunter. Impact on Water Quality Standards. The weight of the evidence failed to prove that the Mr. Hunter has provided reasonable assurances that the proposed project will not lower the existing ambient water quality of waters of the State of Florida. The evidence presented by the Department concerning adverse impacts of the proposed project on water quality standards was uncontroverted by Mr. Hunter. Approval of Mr. Hunter's proposed project would allow the placing of fill in an intertidal area and the elimination of the portion of the intertidal area filled. Intertidal areas help maintain water quality by acting as a filter for water bodies. Mr. Hunter has obtained a variance from the Department of Health and Rehabilitative Services which will allow him to place a septic tank on his property if the permit is granted. The septic tank will leach pollutants. Those pollutants will include nutrients, viruses and bacteria. Because the soil around the septic tank is very saturated, filtering of the pollutants will be low. Pollutants will, therefore, leach into the waters of the State of Florida and adversely impact water quality standards of the canal adjacent to Mr. Hunter's property. Under such circumstances, Mr. Hunter has failed to demonstrate that the project will not lower existing ambient water quality of waters of the State of Florida. Public Interest Test. Mr. Hunter failed to present evidence to support a conclusion that the proposed project will not be adverse to the public interest. Rather, the unrebutted evidence presented by the Department supports a finding that Mr. Hunter's proposed project will not be in the public interest, especially when the cumulative impacts of the proposed project, discussed, infra, are considered. Possible adverse impacts to the public interest include the following: The septic tank which Mr. Hunter will place in the 1750 square feet of filled area will allow fecal coliform, viruses and pathogens to leach into the waters of the canal adjacent to Mr. Hunter's property. Anyone who enters the canal could be infected from bacteria and viruses leaching from the septic tank. The conservation of fish and wildlife would also be adversely affected by the adverse impact on water quality and by the elimination of intertidal area. Recreational value of the canal would be reduced because of the adverse impact on water quality. The proposed project is for a permanent structure. Cumulative Impact. There are a number of applications for permits similar to the application filed by Mr. Hunter which have been filed by property owners of Dekle Beach whose homes were also destroyed by the March 1993 storm. If Mr. Hunter's permit application is granted, the Department will have to also grant most, if not all, of the other similar permit applications. Approximately 20 to 30 other applications involve similar requests which will allow the placement of fill and the installation of septic tanks. The resulting fill and use of septic tanks will have a significant cumulative adverse impact on the waters of the State of Florida. The cumulative impact from leaching effluent from the septic tanks on the waters of the State could be substantial. In addition to the impact on the canal adjacent to Mr. Hunter's property, there will a cumulative negative impact on the ambient water quality of approximately 20 septic tanks on the canals and on the OFW. Errors in the Department's Notice of Permit Denial. The Notice of Permit Denial issued by the Department contained the following errors: An incorrect description of Mr. Hunter's lot number and section number; An incorrect statement that the amount of Mr. Hunter's proposed fill would eliminate 3,200 square feet of marsh; An incorrect statement that Mr. Hunter proposed to fill his lot for a distance of 64 feet waterward. The errors contained in the Notice of Permit Denial did not form any basis for the Department's denial of Mr. Hunter's application. The errors were typographical/word-processing errors. Several notices were being prepared at the same time as the Notice of Permit Denial pertaining to Mr. Hunter. The incorrect information contained in Mr. Hunter's Notice of Permit Denial was information which applied to the other notices. Other than the errors set out in finding of fact 23, the Notice of Permit Denial was accurate. Among other things, it was properly addressed to Mr. Hunter, it contained the project number assigned by the Department to Mr. Hunter's proposed project and it accurately reflected the Department's decision to deny Mr. Hunter's permit application. Mr. Hunter responded to the Notice of Permit Denial by requesting a formal administrative hearing to contest the Department's denial of his application. On December 20, 1993, Mr. Hunter received a letter from the Department which corrected the errors contained in the Notice of Permit Denial. The corrections were also contained in a Notice of Correction filed in this case by the Department on December 20, 1993. The Notice of Permit Denial was received by Mr. Hunter within 90 days after his application was filed. The corrections to the Notice of Permit Denial was received by Mr. Hunter more than 90 days after his application was filed.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Environmental Protection enter a Final Order dismissing the petition in this case and denying the issuance of permit number 62-232123-2 to Clifford O. Hunter. DONE AND ENTERED this 26th day of April, 1994, in Tallahassee, Florida. LARRY J. SARTIN 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 26th day of April, 1994. APPENDIX The parties have submitted proposed findings of fact. It has been noted below which proposed findings of fact have been generally accepted and the paragraph number(s) in the Recommended Order where they have been accepted, if any. Those proposed findings of fact which have been rejected and the reason for their rejection have also been noted. Mr. Hunter's Proposed Findings of Fact Accepted in 1 and 3. Accepted in 2. Accepted in 4. Although Ernest Frey, Director of District Management, Northeast District Office of the Department, did ask Mr. Hunter whether he wanted to sell his property to the State, the evidence failed to prove why Mr. Frey asked this question, that Mr. Frey asked the question in his official capacity with the Department, or that Mr. Frey made the inquiry at the direction or on behalf of the Department or the State. More importantly, the evidence failed to prove that the Department denied the permit sought by Mr. Hunter because of any interest the State may have in purchasing Mr. Hunter's property. See 4. 6-8 No relevant. Not supported by the weight of the evidence. Accepted in 6, 23, 28 and 30. Not a proposed finding of fact. See 8. The "aerial photo, Petitioner's exhibit 6, does not show "No vegetation behind the slab, nearly to the Mean High Water Line . . . ." Respondent's exhibit 3 does, however, show vegetation as testified to by Department witnesses. 13-14 Not supported by the weight of the evidence. Not a proposed finding of fact. Generally correct. Mr. Hunter was not properly put on notice of "alternatives" by the Notice of Permit Denial, as corrected, issued by the Department. Summation: Mr. Hunter's Summation was considered argument and was considered in this case. The Department's Proposed Findings of Fact Accepted in 1 and 3. Accepted in 2. Accepted in 1 and 4-5. Accepted 6-7. Accepted in 8. 6-9 Hereby accepted. Accepted in 12. Accepted in 13. Accepted in 14. Accepted in 15. Accepted in 19. Accepted in 20. Accepted in 15. 17-18 Accepted in 15 and hereby accepted. Accepted in 15 and 20-21. Accepted in 10. Accepted in 22. Hereby accepted. Accepted in 22. Accepted in 12. Accepted in 15-16. Accepted in 17 and 21. 27-28 Accepted in 17. Accepted in 18. Accepted in 13. Accepted in 16. 32-33 The Notice of Permit Denial, as corrected, did not put Mr. Hunter on notice that the alternatives raised by the Department at the final hearing would be an issue in this case. Those alternatives should not, therefore, form any basis for the Department's final decision. Accepted in 24-25. Accepted in 23. Accepted in 25. Accepted in 24 and hereby accepted. Accepted in 26. COPIES FURNISHED: Clifford O. Hunter 1410 Ruby Street Live Oak, Florida 32060 Beth Gammie Assistant General Counsel Department of Environmental Protection Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32399-9730 Virginia B. Wetherell, Secretary Department of Environmental Protection Twin Towers Office Building 2600 Blair Stone Road Tallahassee, FL 32399-2400 Kenneth Plante, Esquire General Counsel Department of Environmental Protection Twin Towers Office Building 2600 Blair Stone Road Tallahassee, FL 32399-2400
The Issue The issue is whether Ponce Marina, Inc., (Ponce Marina) is entitled to a dredge and fill permit and water quality certification number 64-1303059 to construct a marina on the Halifax River in Volusia County, Florida.
Findings Of Fact The Department received an application from Ponce Marina on February 6, 1987, for a permit/water quality certification to construct a 178 slip marina facility consisting of two marina basins and two access channels. The work was to be done in primarily existing uplands adjacent to the Intercoastal Waterway (ICW) within the boundaries of the Town of Ponce Inlet, Volusia County, Florida. In response to agency objections, the scope of the project was reduced to include the excavation of a single marina basin and entrance channel and the construction of a 142 slip marina, by: constructing a basin by excavating 153,000 cu. yds. of material landward of mean high water (MHW) to a maximum depth of -6 feet mean low water (MLW); constructing an entrance channel 200 feet long by 80 feet wide by hydraulically dredging 2,100 cu. yds. waterward of MHW to a maximum depth of -7 feet MLW; connecting the head region of the excavated basin to an existing tidal creek by installing a 60 foot long, 36 inch diameter culvert pipe set at invert -2.0 feet NGVD and fitted with a 36 inch flap gate; installing 1,695 linear feet of vertical bulkhead with a riprap toe, 1,200 linear feet of native rock revetment, 680 linear feet of native rock riprap for use as wave-breaks; constructing 3 main piers, 8 feet in width and 140 feet, 180 feet and 210 feet in length, and 66 finger piers 3 feet in width and 30 feet to 50 feet in length, providing 142 wet boatslips; constructing a stormwater treatment system for the upland development associated with the marina facility; filling a 0.53 acre barrow canal with 4,000 cu. yds. of material; impacting 2.44 acres of jurisdictional wetland area; and creating 2.9 acres of jurisdictional wetland area. The application was filed on behalf of Ponce Marina by Robert M. Snyder, P.E., a professional engineer registered in the State of Florida. On June 20, 1988, the Department issued its Intent to Issue Permit No. 64-1303059 to Ponce Marina. The Intent to Issue contains 21 Specific Conditions the Department will place on the Permit. All conditions are reasonable and necessary. The project site is located on the eastern side of the Halifax River, 3.5 miles south of the Port Orange Causeway and 2.3 miles north of Ponce Inlet in the Town of Ponce Inlet, Volusia County, Section 24, Township 16 South, Range 33 East, not in aquatic preserve, in Class III waters. The project site was formerly salt marsh associated with the Halifax River. The majority of the project site now consists of fill placed on the salt marsh at some time in the past. This fill created an upland strip approximately 500 feet wide and 2,000 feet long. Running through this upland strip is a central ditch which originates at a stormwater sewer on the east side of South Peninsula Drive and runs toward the west to the Halifax River. The proposed marina basin is to be excavated from the upland strip and central ditch described above. The marina design includes the creation of a wetland area in the head region of the basin as well as the connection of the head region to Live Oak Creek, an existing tidal creek, by installing a 60 feet long, 36 inch diameter culvert set at -2.0 feet NGVD and fitted with a 36 inch flap gate. The estuarine marsh wetland to be created at the head of the marina is designed to provide water quality treatment to incoming tides which reach this area. This treated water will then move through the flap gate into Live Oak Creek, where it will receive further treatment before entering the Halifax River. The entrance to the marina will be 180 feet wide. The dredged access channel through that 180 feet entrance, for the navigation of deeper draft boats, will be 80 feet wide by 200 feet long. Construction of the entrance channel will require the excavation of approximately 2,100 cu. yds. of material from the submerged lands of the Halifax River, however, the areas to be dredged consist of unvegetated sand which is not expected to impact marine resources. Excavation of the marina basin will result in 2.44 acres of direct wetland loss. These wetlands are mainly associated with the central ditch. Some marsh north of the upland strip will also be encroached upon. The wetland area eliminated by construction will be replaced by the creation of 2.9 acres of wetland area to be planted with mangroves and smooth cordgrass. It is expected that the created wetland area will provide those same functions as the replaced wetlands within four to five months of planting and will become fully established within two to three years of planting. There is an extremely high success rate for this type of created wetlands within marina basins. The proposed mitigation provides a 1.3:1 ratio of created saltmarsh and mangrove areas and is consistent with Department policy. Diverse shoreline treatments are proposed which will protect wetland and vegetated areas within the marina basin from boat wakes and high energy exchange. This shoreline treatment will include vertical bulkheads, sloping native rock revetments, and submerged wake breaks. There are two or more boat slips directly adjacent to the created wetland on the south side of the basin. Boats in these slips can easily hit the wetlands and damage them. These slips should be eliminated or redesigned to provide protection for these wetlands. The created wetlands are placed so as to provide nursery habitat adjacent to deep water and to filter and treat tidal waters as they move through them. The location and proximity to open water of the created wetlands and the flushing characteristics of the basin will result in higher quality wetlands than those being replaced. The approximately 94 acres of remaining wetlands surrounding the marina project will be placed in a perpetual conservation easement by Ponce Marina. This conservation easement will include two spoil islands to the south of the main upland portion of the property as well as a nonjurisdictional Oak Hammock to the north of the project. The marina, as designed, is a system which is hydraulically driven by the tide. The tide in this region has a mean range of 2.77, that is, a 2.77 feet amplitude change from slack low water to slack high water. In this particular marina system, flushing is driven by two tidal components: (1) a tidal prism which is nothing more than the ratio of the tide volume to the mean low water volume of the basin and, (2) a flow-through component which occurs because there is an elevation difference from one portion of the system to another. A more rigorous flushing action occurs in a flow- through system. The marina is designed with a flap gate so that the facility will have a flow-through potential. Because a flow- through system generates turbulence, it provides mixing through the water column to eliminate or greatly minimize potential for pockets of water that could become stagnant. This is particularly effective in the head regions of the basin. The flap gate operates not only to ensure that water regularly moves out of the head region, but also to ensure that water from the marsh area will not flow into the marina basin, since such water contains organics which could be transported into the marina basin, thereby increasing the potential to violate dissolved oxygen standards. The marina, as designed, will provide a flushing time of 4.6 days for 100 percent flushing, which is adequate to provide reasonable assurance that water quality standards will not be degraded in either the marina basin or adjacent waters. The velocity of water going through the flap gate will not cause erosion. While no operational problems are anticipated with the flap gate, its proper operation is critical to the flushing of the basin. An appropriate design and regular maintenance will be necessary for the flap gate to operate as anticipated. There is no condition in the Intent to Issue which addresses the design and maintenance of the flap gate. Such a condition should be included. The east-west portion of an existing L-shaped canal situated in the northern portion of the property will be filled. The area to be filled is .53 acres. The L-shaped canal is within the Department's jurisdiction, is connected to the Halifax River, and is therefore waters of the State. There is a 36-inch culvert coming from under Peninsula Drive which takes stormwater runoff from an existing condominium development and empties that runoff into the L-shaped canal. Currently, untreated water is coming off impervious surfaces and under the highway by pipe directly into waters of the state, with no detention, no retention, no initial treatment. Therefore, the worst pollutant slug is going directly into waters of the state. This stormwater runoff receives no treatment prior to being directly discharged to waters of the state. Such a system would not be permitted by the Department today. State water quality will be improved by removing the direct stormwater drainage to waters of the state. Ponce Marina has provided an alternate plan for the water which is currently coming from off the project site and discharging through the 36-inch culvert directly into waters of the state. The water is to be routed through a considerable length of grassy ditch behind a weir which will retain the water so that it will receive proper treatment before entering the marsh area. This stormwater will not be routed to a retention area in the oak hammock to the north of the project. The water quality in the remaining portion of the L- shaped canal will not be reduced by the filling of the .53 acre east-west segment, nor is it expected to decline after the filling. The proposed stormwater treatment system for the marina project meets the criteria specified by Florida Administrative Code Chapter 17-25. Further, the stormwater management system for the project was never properly made an issue in this proceeding. The U. S. Fish and Wildlife Service issued a no jeopardy letter to Ponce Marina on July 11, 1988, indicating that the proposed marina will not endanger the manatee or the Atlantic Saltmarsh snake. Those are the only endangered or threatened species that would be expected to be affected by this project. On September 1, 1987, Colonel Robert M. Brantly, Executive Director of the Florida Game and Fresh Water Fish Commission, issued a letter to Secretary Dale Twachtmann recommending, (1) the southern basin of the original marina project be eliminated; (2) the remaining northern basin be designed to lessen wetland impacts, a hydrographic analysis be performed to ensure adequate flushing, there be a DNR determination of no adverse impact to the manatee; and (3) the oak hammock be preserved before issuance of the permit. These recommendations were followed by the Department and are incorporated in the current proposal for the project. On August 21, 1987, the Florida Department of Natural Resources issued its recommendations to the Department concerning the proposed marina, as it relates to the manatee. The recommendations of the DNR are incorporated in permit conditions 16, 17, and 18a through 181. A March 16, 1987, report prepared by staff of the Environmental Control Division of Volusia County recommended approval of the original marina project with three recommendations. Although Volusia County recommended a 90 percent survival rate, an 80 percent survival rate in the mitigation plan is reasonable. Marina plans provide for a sewage pump-out service for boats, as recommended. A condition prohibiting live-aboards on vessels was inadvertently omitted from the condition in the Intent to Issue. The PAC called as its only witness, Dr. Bernard J. Yokel, who was qualified as an expert in estuarine ecology and fisheries. Although Dr. Yokel expressed concern about the removal of a portion of the L-shaped canal and on the introduction of water from the marina into Live Oak Creek, there was no testimony whatsoever that it would be a violation of any criteria of the Department's Class III Water Standards or any other promulgated departmental standard. In fact, Dr. Yokel was unfamiliar with the provisions of Chapters 17- 3 and 17-4, Florida Administrative Code, and was also unfamiliar with the Coastal Marinas Assessment Handbook, the 1985 version published by the Environmental Protection Agency (EPA). Although Dr. Yokel expressed some concern regarding the impact of the marina on the existing linear wetlands in the ditches, he never rendered any opinion as to whether or not reasonable assurances had been provided that the proposed permit was contrary to the public interest, would cause adverse water quality or have adverse effects on fish, shellfish, crabs, and other wildlife. He rendered no opinion as to whether or not the proposed project, if permitted, would adversely affect the conservation of fish and wildlife. The Petitioner, Lawrence Decker, did not testify. He did present Robert Bullard, P.E., as an expert. Mr. Bullard expressed concern about the operation of the flap gate between the marina basin and Live Oak Creek. However, Mr. Bullard expressed no opinion as to whether or not there would be a violation of any criteria contained in Chapters 17-3, 17-4, or 17-25, Florida Administrative Code, or of the Department's Class III Water Quality Standards. The witness, Mr. Bullard, also expressed concern about the hydrographic characteristics of the marina basin and of the L-shaped canal. However, Mr. Bullard never expressed an opinion that the project as designed would degrade State Water Quality Standards below those set in Chapters 17-3, 17-4, and 17-25, Florida Administrative Code, or the Department's Class III Water Quality Standards. Mr. Bullard never expressed any opinion as to whether or not reasonable assurances had been given by the applicant, Ponce Marina, to the Department, that the project would not meet the criteria as provided in Chapter 403, Florida Statutes, or the rules promulgated by the Department thereunder. The applicant, Ponce Marina, has provided reasonable assurances that the project will not violate water quality standards or other standards established pursuant to Chapter 493, Florida Statutes, and Rules 17-3.051, 17- 3.061, and 17-3.121, Florida Administrative Code, relating to Class III waters. The project as designed is not contrary to the public interest. The mitigation more than offsets the wetlands lost. There is evidence to establish that the project, with mitigation, will not adversely affect the public health, safety, welfare, or property of others; nor adversely affect the conservation of fish and wildlife, including endangered or threatened species or their habitats; nor adversely affect navigation or flow of water or cause harmful erosion or shoaling; nor adversely affect the fishing or recreational value or marine productivity in its vicinity; nor adversely affect significant historical or archaeological resource.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Environmental Regulation enter a Final Order and therein grant permit number 64-1303059 to Ponce Marina, Inc., with three additional specific conditions added to the twenty-one conditions set forth in the Intent to Issue: No live-aboard vessels are to be allowed at the marina. The applicant shall design and shall provide regular maintenance for the flap gate so as to insure that the flap gate will perform as required as an integral and critical component of the flushing design of the marina basin. The applicant shall eliminate or redesign the boat slips directly abutting the created wetlands on the south side of the basin, so as to protect those wetlands from damage. DONE and ENTERED this 28th day of November, 1988, in Tallahassee, Florida. DIANE K. KIESLING Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 28th day of November, 1988. APPENDIX TO RECOMMENDED ORDER, CASE NO. 88-3494 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on the proposed findings of fact submitted by the parties in this case. Specific Rulings on Proposed Findings of Fact Submitted by Petitioners, Doris Kralik and Lawrence Decker 1. Each of the following proposed findings of fact are adopted in substance as modified in the Recommended Order. The number in parentheses is the Finding of Fact which so adopts the proposed finding of fact: 1(3); 2(2); 5(19); 10(24); 14(26); 32(26); and 35(27). 2. Proposed findings of fact 3, 4, 6-9, 11-13, 15, 16, 19, 24- 26, 28, 30, 33, 34, and 37-42 are subordinate to the facts actually found in this Recommended Order. Proposed findings of fact 17, 36, and 43 are rejected as irrelevant. Proposed findings of fact 18, 20-23, 27, 29, and 31 are unnecessary. Specific Rulings on Proposed Findings of Fact Submitted by Respondent, Ponce Marina, Inc. Each of the following proposed findings of fact are adopted in substance as modified in the Recommended Order. The number in parentheses is the Finding of Fact which so adopts the proposed finding of fact: 1(1); 2(2); 4(11 & 12); 5(10); 6(18); 9(3); 11(36); 15(29-32); 16 (33 & 34); 17(4);0(41) and 25(44). Proposed findings of fact 3, 7, 8, 10, 12-14, and 21-24 are subordinate to the facts actually found in this Recommended Order. Proposed findings of fact 15 and 19 are unnecessary. Specific Rulings on Proposed Findings of Fact Submitted by Respondent Department of Environmental Regulation 1. Each of the following proposed findings of fact are adopted in substance as modified in the Recommended Order. The number in parentheses is the Finding of Fact which so adopts the proposed finding of fact: 1(1 & 2) and 2-38(3-39). Specific Rulings on Proposed Findings of Fact Submitted by Intervenor, Volusia-Flagler Environmental Political Action Committee, Inc. 1. Each of the following proposed findings of fact are adopted in substance as modified in the Recommended Order. The number in parentheses is the Finding of Fact which so adopts the proposed finding of fact: 1(3); 2(2); 4(8); 5(19); 8(27); 9(28); 21(24); and 22(26). 2. Proposed findings of fact 3, 6, 7, 10-13, 15, 19, 20, 23, 24, 27, 33-37, 39, and 40 are subordinate to the facts actually found in this Recommended Order. Proposed findings of fact 14, 16-18, and 25 are rejected as irrelevant. Proposed findings of fact 26, 28-32, 38, and 41-43 are unnecessary. COPIES FURNISHED: Lawrence Decker 6502 John Anderson Road Flagler Beach, Florida 32036 Doris Kralik 31 Oceanview Avenue Ponce Inlet, Florida 32019 Peter B. Heebner Attorney at Law 523 North Halifax Avenue Daytona Beach, Florida 32018 Vivian F. Garfein Assistant General Counsel Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32399-2400 Thomas D. Wright Attorney at Law Post Office Box 1231 New Smyrna Beach, Florida 32070 Dale H. Twachtmann, Secretary Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32399-2400
Findings Of Fact Petitioner Melvin J. Laney is the owner of Rodriguez Key which is located approximately one and one-half miles from Key Largo, Florida, in the Atlantic Ocean. The island consists of about 170 acres and is undeveloped. It is approximately 9/10 of a mile long and 3/10 of a mile wide. By application, dated July 31, 1978, Petitioner requested a permit from Respondent Department of Environmental Regulation (DER) to conduct specified activities incident to the establishment of a primate breeding and research farm. The proposed activities included the construction of a floating pier, filling a sunken barge which is located 100 feet from the shoreline with coral rock and riprap, constructing two buildings on stilts on the east end of the island, clearing some 8.9 acres of black mangroves to provide trails for the placement and servicing of cages, installation of prepackaged waste treatment units, and temporary cages. (Testimony of Petitioner, Exhibits 1,8) DER's South Florida branch office personnel reviewed the application and issued an intent to deny the requested permit by letter of March 8, 1979, for the reason that Petitioner had failed to obtain local approval required pursuant to Section 253.124,. F.S., and that violations of State water quality standards could be expected by the proposed project. Further, the notice noted that the project would result in adverse effects to marine productivity and wildlife population contrary to the public interest under Chapter 253. Petitioner thereupon requested a hearing. (Petition, Exhibit 6,8) Petitioner plans to bring rhesus, squirrel, and other research primates into the State for the purpose of establishing a breeding and research farm on Rodriguez Key. The primates would be owned by sponsors who would pay Petitioner to provide housing, care and associated services. The project is designed to meet the needs of researchers for the testing of vaccines and other scientific purposes. There is currently a shortage of primates in this country due to a 1978 embargo on the export of such animals by the government of India who had previously been the primary supplier of research primates. (Testimony of Petitioner, Darrow, Exhibit l) Petitioner intends to fill a partly sunken barge near the northeast shoreline with boulders and riprap, cover it with a concrete floor, and construct a floating pier approximately 130 feet long between the shore and the barge for off-loading of supplies and equipment. The project contemplates the construction of an animal care house and a residence, both to be placed on stilts which will each contain a maximum of 10,000 square feet of space. No filling or dredging is planned for either structure. This is a modification from the original permit application which called for some 3,000 cubic yards of fill at the building site. At the western end of the island, Petitioner plans to install 16 rows of prefabricated cages with 64 cages per row, which represents a total area of approximately 12.48 acres. About 4.16 acres of that area will be cleared or otherwise disrupted to place and connect the cage rows. The cages will be secured and there is little likelihood that the animals will escape. Under a current permit from the Fresh Water Game and Fish Commission, the holding cages must be constructed to withstand hurricanes, surge and wind, and provide adequate protection for the animals during such storms. They must also meet or exceed minimum pen specifications established by the Commission. The permit submitted in evidence expired on June 30, 1981. The cages will be prefabricated and placed on metal pilings which are attached to underground rock. There will be troughs located underneath a grate floor for animal wastes which will be collected and pumped to a sewage disposal system. In order to take supplies, materials, and animals to and from the cage area, Petitioner intends to clear a 20-foot wide perimeter "trail" around the island which would be attached at both ends by lateral similar trails. The total distance of the trails is approximately 9,000 feet. The need for a perimeter trail is to deliver materials on one side of the island, service the animals, and then leave by a different route for the purpose of transporting employees, ill animals, or transporting of any animal that might affect the control area for testing and conducting vaccine research. The perimeter trails are designed to be no closer than 75 feet from a red mangrove fringe border around the island. For transportation purposes, it is proposed to use gasoline powered "all terrain" wheeled vehicles which will traverse the trails along two parallel two-inch diameter cables suspended horizontally 36 to 48 inches above the ground level. The cables will be attached to concrete anchors consisting of four inch by four inch steel tubes which are placed at 100 foot intervals along the trails. The tubes will be either hand-driven into subsurface rock several inches or driven by means of a portable pile driver. The tubes will additionally be supported by a concrete block "dead man" attached to a 5/8-inch cable on either side of the tubes and placed underground. Turning platforms would be placed at trail intersections on top of the cable road so that a vehicle could drive upon the platform and execute a turn to a connecting cable road. The low pressure tread vehicles used to traverse the roads will be equipped with shoes or flanges on the inside of the tire rims to securely ride on the pretensioned cables. They will also have low pressure pneumatic tires. The vehicles will also be used in interior areas where mangroves are not present. They will ride on the ground or upon metal plates. These areas are covered with about 9,000 square feet of batis (saltwort) cover which eventually will be killed by vehicle use. Batis is important for sediment stabilization and its removal can cause siltation problems in waters surrounding the island. The need for a 20-foot swath for the cable road is explained by the fact that transport of the 17-foot cages must be accomplished by placing them sideways on the transporting vehicles in order to install and periodically provide service, repair or replacement. A soil study made in representative areas of Rodriguez Key except the west end shows that coral rock exists at levels of approximately 11 to 15 feet below the ground surface, thus necessitating the use of pilings for support purposes rather than shallow footings. Although no soil borings were taken at the west end of the island, the soil expert is of the opinion that the borings reflect general rock characteristics of the entire island. Petitioner's civil engineer who designed the current cable road system prepared several alternative methods of construction, and is of the opinion that suspension of the cables at a height of 15 feet instead of three to four feet as currently planned would be feasible except for cage servicing purposes. A further alternative that was proposed by Petitioner's engineer expert is to place the cages at the east end of the island and utilize a boardwalk constructed of an eight-foot wide precast concrete slab walkway as a boardwalk for positioning of the cages. Six inch by six inch timber posts would be driven to the hardrock layer for a minimum of ten feet to anchor the Platform. The engineer testified that this alternative would be cost effective if used in lieu of the cable road. Respondent's Environmental Specialist testified that such a modification to concentrate the project on the east end of the island would be recommended because it would eliminate the cable road and its adverse environmental consequences Rodriguez Key is almost completely vegetated by mangroves with a red mangrove fringe around the perimeter and black mangroves on the higher interior areas. Some of the red mangroves are 100 to 150 feet in height and the black mangroves range from 20 to 40 feet high. In the east center of the island is an open area of batis, and red mangroves are located in the center and west end of the island. White mangroves are also present in the south side of the island. Throughout the island, there are watermarks on trunks and prop roots ranging from four inches to six inches, and an abundant growth of brown algae. Such algae requires regular submergence to exist. No significant forms of wildlife are present on the island. Batis is a submerged species which is important for sediment stabilization. In order to clear the 20-foot wide trails with cable suspensions as low as 36 inches above ground, it will be necessary to prune or cut back a large number of mangroves to that height. However, the prop roots of the red mangroves extend above six feet in some areas. If the trees and roots are cut to a three-foot height, it is unlikely that they would survive. Red mangroves produce leaf detritus which forms a part of the food chain for marine life. Such trees are island stabilizers which provide filtration and uptake of nutrients associated with runoff and intertidal waters. The waters surrounding the island are categorized as Class III waters under State regulations. The presence of brown algae on prop roots is evidence that the island is regularly inundated to some degree. Turtle grass, which is an indicator of regular tidal flushing, is in abundance on the flats waterward of the island but not found in the interior. During a visit to the Rodriguez Key in 1981, DER personnel observed standing water across the entire island to a depth of from one inch to one foot at high tide. (Testimony of Carroll, Key, Helbling, Exhibits 6, 8) Thirteen public witnesses testified at the hearing, including residents, landowners, and representatives of housing developments in the Key Largo area. They were uniformly opposed to the proposed project for a variety of reasons. Primarily, they fear that the presence of primates on the island a short distance away from Key Largo will produce excessive noise, odor, and water pollution in the adjacent waters which are used for recreation. Additionally, some are of the opinion that their property values will decrease as a result of the activity. A District Naturalist employed by the Department of Natural Resources at the nearby Coral Reef State Park testified that her agency opposes the proposed activity due to concern that it will cause degradation of water quality in the surrounding waters and that increased boat traffic could damage the shallow coral reef beds which lie near the State park. There is also general apprehension among the nearby residents that a hurricane could destroy any facilities on Rodriguez Key and cause damage to their property. A petition signed by a large number of Key Largo residents reflects their opposition to Petitioner's use of Rodriguez Key as a primate breeding and research facility. (Testimony of public witnesses (Hearing Officer's Exhibit 2) Exhibits 9-10) There probably would be no odor problem connected with the presence of monkeys on Rodriguez Key if the cages are regularly cleaned and fecal waste is disposed of according to sanitary methods. Although primates are inclined to vocalize at feeding time or when strangers appear, they do not screech at great length and the presence of trees and other foliage would modify the sound. (Testimony of Darrow)
Recommendation That the application of Petitioner Melvin J. Laney, as modified in the above Conclusions of Law, be approved and that a permit authorizing the requested activities be issued pursuant to Chapter 403, F.S., together with water quality certification under PL-500, subject to standard conditions reasonably necessary for prevention of pollution. DONE and ENTERED this 14th day of September, 1981, in Tallahassee, Florida. THOMAS C. OLDHAM Hearing Officer Division of Administrative Hearings 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 14th day of September, 1981. COPIES FURNISHED: Ross A. McVoy, Esquire Madigan, Parker, Gatlin, Swedmark and Skelding Post Office Box 669 Tallahassee, Florida 32302 Ray Allen, Esquire Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32301 Honorable Victoria Tschinkel Secretary, Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32301 =================================================================
Findings Of Fact Based upon the record evidence, the Hearing Officer makes the following Findings of Fact: Petitioner and his wife own residential property on the northwest side of Key Thargo in Monroe County, Florida. The property is situated on Florida Bay, a Class III Outstanding Florida Water. The area surrounding the Depkins' property is predominately residential, but there is some nearby commercial development, including a motel which is located on an adjoining parcel. A seawall runs the entire length of the shoreline of the Depkins' property. An L-shaped dock and a covered dock extend out into the water from opposite ends of the seawall forming a cove. The Depkins, who live in Key Thargo only a portion of the year, have a boat which they currently moor alongside the L-shaped dock in that area of the cove where the depth of the water is the greatest. The operation of the boat in this area of the cove has not caused any obvious damage to the bay bottom. Two of the Depkins' boats have sunk in stormy weather while moored alongside the L-shaped dock. Therefore, they now dock their boat at a marina when they are away from Key Largo. The Depkins propose to dredge a relatively small 600 square foot area of bay bottom, which they own, in the cove immediately waterward of the seawall. The depth of the water in this area of the cove now ranges from six inches to a foot and a half. The proposed dredging project would increase the depth of the water by two feet and thereby enable the Depkins to dock their boat alongside the seawall, a location they consider safer than the one they presently use for this purpose. The bay bottom which the Depkins propose to dredge consists primarily of bedrock which is irregularly shaped. Most of the bedrock is exposed, however, some of the depressions in the bedrock are filled with sediment. The remaining portion of the bay bottom is covered with sand which is inhabited by various living organisms. Approximately 50% to 75% of the proposed dredging site is covered with vegetation. The dominant vegetation is live algae attached to the exposed bedrock. Various species of algae are present, including red algae, which is the preferred habitat for juvenile lobster. A small portion of the site is covered by live turtlegrass. These few patches of turtlegrass are found in the depressions in the bedrock that are filled with sediment. Without sediment turtlegrass cannot grow. Algae and turtlegrass play significant roles in the production and sustenance of marine life. They have considerable value as a habitat and as a source of food for other living organisms. In addition, they help reduce turbidity and water pollution. If the Depkins dredged the proposed project site, all existing biota within the boundaries of the site would be eliminated and it is unlikely that the area would experience a complete or significant recovery. About twelve to fourteen years ago the Depkins dredged sand from the bay bottom near their L-shaped dock. Almost 30 years ago the owners of the motel situated on the parcel of land adjoining the Depkins' property undertook a similar sand dredging project in the bay. Neither of these prior dredging projects resulted in the long-term loss of any vegetation. If anything, the vegetation in these areas has increased. Unlike these previous projects, the project which the Depkins now propose to undertake involves the dredging of primarily bedrock, not sand. 1/ Revegetation typically does not occur following such dredging activity. It is the exception rather than the rule. Therefore, more likely than not, the Depkins' proposed dredging project, if permitted, will result in the permanent loss of vegetation and consequently will have a long-term adverse effect on ambient water quality, the conservation of fish and other aquatic wildlife, and marine productivity. Furthermore, if the project was completed and the Depkins were to begin docking their boat alongside the seawall, there would be an increase in conflict turbidity attributable to the movement of the boat in and out of this area of shallow water. 2/ No measures to mitigate these adverse consequences have been proposed or suggested. 3/ There are many other owners of bayfront property in the Florida Keys who, like the Depkins, are desirous of dredging an access channel to the landward extent of their property. The Department's current practice is to deny these property owners permission to engage in such dredging activity. Although in the past year the Department has processed only about a half dozen permit applications for dredging projects similar in size and scope to that proposed by the Depkins, there would likely be a substantial increase in the number of permit applications were the Department to announce, through its disposition of the Depkins' permit application, that it was henceforth allowing such projects. If the Depkins and these other property owners were permitted to undertake such projects, the resulting damage to the marine environment would be widespread. The impact would extend far beyond the relatively small area of bay bottom that the Depkins propose to dredge. The Department has proposed the following reasonable alternative to the proposed dredging project which would also provide the Depkins with improved access to their residence by boat: Extend the existing [L-shaped] dock offshore to a terminal platform located at a water depth of at least four (4) feet MLW and elevate the intermediate portion of the dock to at least five (5) feet above MHW to prevent boat mooring in shallower areas.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Department of Environmental Regulation issue a final order denying the Depkins' permit application. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 8th day of August, 1989. STUART M. LERNER Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division f Administrative Hearings this of 8th day of August, 1989.
