Findings Of Fact Seago Group, Inc., the Applicant/Intervenor, owns a tract of land in Lee County Florida, which is completely surrounded by creeks and canals, including Indian Creek on the north. The Intervenor intends to develop the parcel and is seeking a permit from the Department to construct a bridge over Indian Creek to provide access. There is presently a cul-de-sac at the end of Indian Creek Drive on the north side of the creek. The bridge would extend Indian Creek Drive over the creek onto the applicant's property. The Intervenor held an option to purchase land for the right-of-way on the north side of the creek. The Petitioners own property adjacent to Indian Creek Drive. The Petitioner Helwig owns property upon which be resides, and which adjoins the proposed bridge site. The Petitioner Rowe owns property upon which he resides several lets up Indian Creek Drive from the proposed bridge site. The Intervenor originally made application to construct a road over Indian Creek at a different, but nearby location using a culvert rather than a bridge. The Department's staff appraised the application and recommended that it be denied because deposits of fill around the culverts would have eliminated productive submerged creek bottoms, interfered with the ability of the aquatic habitat to support fish and wildlife populations, and eliminated shoreline vegetation which serves to filter runoff which enters the creek, thus helping to preserve good water quality in the creek. The application was withdrawn by the Intervenor before final action was taken on the Department's staff recommendations. The Intervenor thereafter filed the instant application. The application was to construct: ... A 26 ft. wide by 50 ft. long vehicular bridge constructed with 21" prestressed slabs on pile bent abutments over Indian Creek in Lee County, Florida. The application further provided: All work will be conducted on upland with no need for any equipment or material required to be in the water. All equip- ment and material will be delivered by upland access. The application did not reflect that Intervenor had previously sought a permit for the culvert constructions, but the Department was clearly aware of the previous applications and its appraisal of the bridge application was treated as a supplement to the appraisal of the culvert application. In its Notice of Intent to Issue the Permit, the Department erroneously designated the bridge as a "two-span" bridge. The application is actually for a one-span bridge. In its notice the Department added the following specific conditions: Turbidity screens shall be used during construction. Drainage at bridges approaches shall be by swale and no ditches shall be constructed. Drainage shall meet county specifications. No dredging or filling in Indian Creek. No bridge construction shall take place until ownership or easement is obtained through Mr. David Ruch's property pursuant to letters on file with the Department. The Intervenor has acceded to the specific conditions and agreed to comply with them in the event the permit is ultimately issued. All of the pilings for the proposed bridge would be constructed at or above the mean high water line of Indian Creek. Some turbidity could be expected during construction, however, the use of turbidity screens would eliminate any significant impact upon the water quality, fish and other wildlife resources of Indian Creek during construction. The only potential source of pollution from the bridge after construction would be from runoff entering Indian Creek from the bridge. The amount of runoff that would result from a 50 ft. long by 26 ft. wide bridge is negligible. The limited impact that such runoff could have upon the creek can be eliminated by having drainage flow through a swale system. Since the Intervenor has agreed to utilize a swale system, it does not appear that the bridge would have any adverse impact upon the water quality of Indian Creek or any other water body. Neither does it appear that the bridge would adversely affect fish and wildlife resources. Since all bridge pilings would be constructed at or above the mean high water line, transitional zone vegetation can continue to flourish along the shoreline. The planned clearance between the creek elevation at mean high water and the bridge is seven feet. The bridge would thus impede traffic by any boats that protrude more than seven feet above the water line. This presents no significant navigational impact in Indian Creek. There are two avenues for navigating from the bridge site on Indian Creek to the Caloosahatchee River. One of these avenues is presently obstructed by a bridge with an elevation less than that proposed by the Intervenor. The other avenue is obstructed by a very shallow area that will not permit navigation by other than very small vessels. The Department in the past has denied applications to dredge that shallow area. The Intervenor and the Department have submitted Proposed Findings of Fact. To the extent that these proposed findings have not been included in the foregoing Findings of Fact, they are hereby adopted as fully as if set forth herein.
Findings Of Fact Petitioner, Kyle Brothers Land Company, Inc., is a land development and sales firm with principal offices located in Coral Gables, Florida. On November 12, 1980, Petitioner filed an application seeking the issuance of a permit/water quality certification by Respondent, Department of Environmental Regulation, to authorize the excavation of four canals 525' long x 2' wide each with sixteen 10' x 35' boat moorings and to complete excavation on three partially completed canals, all lying in Sections 4 and 5, Township 665, Range 29E, Big Pine Key, Monroe County, Florida. 2/ A copy of the permit application may be found as Petitioner's Exhibit 2. Petitioner's application was received by the Department on November 25, 1980, and reviewed for compliance with applicable state water quality standards, conservation criteria in Chapters 253 and 403, and rules promulgated thereunder. Additional information requested by Respondent was furnished by Petitioner in early 1981. A field appraisal of the project site was submitted by the Department staff on March 16, 1981. On April 8, 1981, the Department issued its intent to Deny the requested permit. A copy of the intent to Deny may be found as Petitioner's Exhibit 6. The Department based its intention to deny the permit on the grounds (a) applicant had not provided reasonable assurance that long-term impacts of the project would not result in violation of State Water Quality Standards for all surface waters and for Class III surface waters, and specifically including the following standards: biochemical oxygen demand, detergents, oils and greases, bacteriological quality, dissolved oxygen and nutrients, (b) applicant had not affirmatively shown the project would not interfere with the conservation of marine resources, and (c) applicant had not provided an affirmative showing of the public interest which would be served by the proposed dredging. Petitioners disputed the allegations set forth in the intent to Deny and requested a formal hearing to contest the denial of its application. That request precipitated the instant hearing. The proposed project is located within Port Pine Heights, a subdivision located on the northern end of Big Pine Key which lies approximately 25 miles east-northeast from the City of Key West. More than seven hundred lots have been sold within the subdivision since 1959 although only forty homes have been built to date. Of that total, approximately fifteen homes are located in the southern half of the subdivision where the proposed project is found. Two main canal systems have been constructed in the subdivision, each having an east-west channel that opens directly to Pine Key Channel to the west, and a number of closed-end finger canals extending to the north and south. The two east-west channels and the finger canals are artificially created bodies of water. The specific project site involves the southern canal system which is approximately six thousand feet long and fifty feet wide. It has fourteen finger canals extending from its northern side, including those to be unplugged and excavated, and twelve to the south. The finger canals are 525 feet long by 25 feet wide. The canals to be dredged lie on the landward end of the east-west channel and were constructed by blasting around 1960. A cease and desist order issued by the United States Army Corps of Engineers in 1973 halted completion of the canals at issue and they have remained either plugged or unexcavated since that time. Petitioner wishes to undertake the proposed work so that it may complete the subdivision begun in 1959. Upon completion, the six canals will have ninety-six waterfront single-family residential homesites of which twenty have already been sold. Because many homesites have more than one lot, a saturation of the area with homes is unlikely. Additionally, the construction of homes within the subdivision has been extremely slow (only forty homes built in twenty years) and no substantial increase in that pace is expected even after the project is completed. Under applicant's proposal the excavated canals will have depths of -4 feet mean low water (MLW) at the dead end increasing to -6 feet MLW at the connection of the existing fifty foot main canal, or an average depth of five feet. The existing canals are all deeper than the proposed canals. The excavation will be done in native oolite limerock and the spoil from the canal system will be used to grade the adjacent upland and form a rip-rap shoreline above the rock level. The entire area will be enclosed by turbidity screens until all work is completed. The substrate at the location is Miami oolite, a type of limestone which is characterized by the presence of fissures and hollows. Even though some groundwater-to-canal water interchange will occur, stormwater runoff has had no deleterious effects on other areas of the canal system since residential development began in the subdivision some years ago. Additionally, oolite rock is typically filled with crevices and dead-ends which hold water or leachate and can aid in minimizing the groundwater-to-canal water interchange. A modified tidal flushing analysis was performed by Dr. John D. Wang, Jr. on behalf of Petitioner in July, 1981. 3/ The analysis investigated the mixing and circulation (flushing) of tidal water in the existing canal system and determined the quantity of water exchange between Pine Channel and the existing canal system. After the project is completed, the overall flushing characteristics and concomitant water quality in the proposed system will be significantly improved. These improved characteristics are primarily due to the new canals having a favorable ratio of MLW volume to tidal prism 4/. As such, there will be higher tidal velocities and more favorable mixing between the canals and the ocean. This is Particularly true for those canals that lie closest to Big Pine Channel. Because the overall flushing time will be reduced on almost all of the system, its ability to purge itself of unwanted constituents will also improve. The Department's concern that boat slips to be cut into the sides of the new canals will cause dead areas of water is not valid. The moorings will not affect flushing because the proposed canals are sufficiently shallow to insure good mixing. Water quality tests within the existing canal system were made by Petitioner in 1980 and 1981 and by Respondent in 1981. The results of applicant's 1981 testing may be found as Petitioner's Exhibit 5, and include samplings of dissolved oxygen, temperature, oils and greases, detergents, total and fecal coliforms, biochemical demand (BOD), and nutrients. Respondent's testing included only dissolved oxygen and has been received as Respondent's Exhibit 5. Water quality sampling reflected only one total coliform and no fecal coliforms in the most developed canal in the southern canal system. Readings in the older area of the subdivision adjacent to a septic tank disclosed an extremely low bacteria count. Given the rate of growth over the past twenty years, and the almost nonexistent presence of bacteria, the proposed canals should not cause a violation of the bacteriological criterion. Measurements of dissolved oxygen (DO) in the existing canal system and offshore ambient waters were taken by both Petitioner and Respondent. Dissolved oxygen is the amount of oxygen in the water, usually measured in a liter of sea water, and is needed for respiration of animals and organisms in the water. Biochemical demand (BOD) was also measured in the existing canal system. This measures the amount of oxygen demanded by organics or organisms in the water to convert oxygen to dioxide and water. High BOD levels indicate high amounts of organic debris in the water. High BOD and a lack of dissolved oxygen would cause an anaerobic environment which would probably produce hydrogen sulfide. State water quality standards require that the concentration of dissolved oxygen "shall never be less than 4 milligrams per liter" in predominately marine waters. Rule 17-3.121(14), Florida Administrative Code. Measurements in the open canal system taken by Petitioner in August, 1980, and by Respondent in September, 1981, reflected readings of less than 4 milligrams per liter during the early morning hours. However, such readings are not unusual in natural settings such as Big Pine Key following a long period without light or photosynthesis. The values did not fall below the minimum standards in the canal system on samples taken after 10:00 a.m. Measurements taken in the ambient waters adjacent to the canal system reflected lower readings than those in the canal system. These values also increased during the later hours of the day. increased flushing in the proposed system and shallower depths will increase oxygen throughout the canals. Therefore, its construction cannot be expected to cause DO levels to drop below the present levels found in the canals and ambient waters. Indeed, the shallower canals will be strong producers of oxygen with a high degree of photosynthetic activity and will contribute oxygen to the rest of the canal system. With the exception of one BOD reading of 1.02, all were less than one unit, and may be characterized as extremely low. These levels will not be increased as a result of the proposed activity to the extent that dissolved oxygen will be depressed below 4 milligrams per liter. Oil and grease concentrations may not exceed 5 milligrams per liter under state standards. Readings taken by Petitioner in the canals and ambient waters were less than 0.01 milligrams at every station. Automobiles and boat traffic are generally the primary source of oils and greases. The Department's concern that subsequent development within the subdivision will substantially increase the input of oils and greases into the waters is speculative at best, particularly in view of the low rate of growth in the subdivision over the past twenty years, the extremely low readings in already developed areas, the fact that present concentrations would have to be multiplied 5,000 times to approach proscribed levels, and the back-sloping of lots by Petitioner to minimize stormwater runoff into the canals. Detergents are barely measureable in the existing canal system and ambient waters. In order to exceed state standards, the present levels would have to be increased at least 500 times. Although the Department expects detergents to be added to the waters through stormwater runoff and septic tank leachate, this assertion is inconsistent with present readings taken at stations near homes with septic tanks. In the context of this proceeding, nutrients may be defined as fertilizers or food for marine plants. An excess of nutrients in sea water can increase the level of biochemical demand which in turn decreases dissolved oxygen thereby causing eutrophication of the canal system. The nutrient levels of the present system are low. This was evidenced by Petitioner's measurements of ammonium, nitrates, inorganic phosphate and silicate. The low readings were present even in the older, more developed areas of the canal system. Respondent fears that development would hasten eutrophication in the canal system because bacteria and nutrients would be introduced through septic tanks and stormwater runoff. However, stormwater and septic tank leachate have had no adverse effects on the main canal system which has been in use since 1967. Indeed, continual monitoring of the system by Petitioner since 1974 reveals that the system is a thriving biological community in which nutrients are being utilized by animals at the rate the system produced them. No violation of applicable state standards is expected after the project is completed. The present canal system has a rich and diverse natural population of flora and fauna. However, all areas are not uniform in their attributes or communities. The water within the system is clear. The biological communities are more extensive and diverse within the existing canal system than offshore. Because the new canals will not exceed six feet in depth, they can be expected to develop quite extensive communities of plant life on their bottoms. Colonization of algae on the sides of the canals should occur within a few weeks after the canals are opened. The optimum level of diversity of plants and animals should be reached within four years. The amount of photosynthetic activity on the walls and bottom of the new system due to its shallow depth will contribute oxygen to the other canals within the system. The new canals will make a significant contribution to the total marine ecosystem. The method of sewage disposal utilized by homes that have been built at the subdivision is septic tanks. Septic tanks would likely be used by any new homes built in the area in the immediate future. Petitioner is willing to construct a central sewage treatment plant whenever development is sufficient to make a plant economically feasible. in Petitioner's judgment, at least thirty homes on or around the new canal system must be built before it is willing to undertake such a project. The use of septic tank by the forty homes now built in the subdivision has not caused violations of any bacteriological quality standards to date. Moreover, testing of those same standards in another canal system on Big Pine Key by Respondent disclosed that septic tank leachate had not contravened those standards. (Respondent's Exhibit 1). The addition of thirty more homes in the subdivision over an extended period of time should not increase the amount of contaminants to a level that violates state water quality standards. Petitioner commenced development of its subdivision at Port Pine Heights in 1959. The southern portion of the subdivision in which the proposed canal system is located was first platted in 1963. Five lots on the unfinished canals have been sold prior to April 3, 1970. Completion of the canals was a condition of the contracts for deed to those lots. Petitioner has unsuccessfully sought to obtain the necessary permits to complete the canal project in issue in 1974 and 1976.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the application of Kyle Brothers Land Company, Inc. for a permit/water quality certification to excavate four dead end canals and to complete excavation of two partially constructed dead end canals on Petitioner's subdivision in Big Pine Key, Monroe County, Florida, be GRANTED. DONE and ENTERED this 20th day of January, 1982, in Tallahassee, Florida. DONALD R. ALEXANDER Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 20th day of January, 1982.
The Issue The issue in this case is whether Respondents Paul Crum, Sr., and Paul Crum, Jr. (the "Crums"), are entitled to the Noticed General Permit issued by the Department of Environmental Protection ("Department") for the construction of a single- family residential dock and associated structures.
Findings Of Fact Background The Crums are the owners of the riparian property located at 15696 Shark Road West, Jacksonville, Florida. The Crum property is adjacent to Pumpkin Hill Creek, which lies within the Nassau River-St. Johns River Marshes Aquatic Preserve. Extending from the Crum property into Pumpkin Hill Creek is an existing wood dock approximately 90 feet long and four feet wide, with a platform near the landward end of the dock. Petitioner Brooks owns the property immediately adjacent to and north of the Crum property. Petitioner Brooks has a dock and boat lift. Petitioner Cole owns the property immediately adjacent to and southeast of the Crum property. The Cole property is located on a salt marsh and has no dock. Petitioner Jones lives approximately 3,200 feet north of the Crum property, on a tributary to Pumpkin Hill Creek. Petitioner Jones has fished Pumpkin Hill Creek and the surrounding waters for over 25 years. Noticed General Permits are a type of environmental resource permit granted by rule for those activities which have been determined to have minimal impacts to water resources. Florida Administrative Code Rule 62-341.427 grants by rule a general permit to construct a single family pier, along with boat lifts and terminal platforms, provided certain specific criteria are met. In August 2005, the Crums applied for a Noticed General Permit to extend their existing dock into deeper water. The Department issued a Notice of Determination of Qualification for Noticed General Permit, but later rescinded the authorization after Petitioner Brooks complained to the Department that the landward end of the existing dock is located only 21 feet from her property boundary and, therefore, did not comply with Florida Administrative Code Rule 18-21.004(3)(d), which requires that a dock be set back a minimum of 25 feet "inside the applicant's riparian rights lines." In November 2005, the Crums re-applied for a Noticed General Permit. Their revised plans called for removal of the existing dock and construction of a new dock extending approximately 255 feet out into Pumpkin Hill Creek. The proposed dock would be located a minimum of 25 feet inside the Crums' riparian rights lines. On December 6, 2005, the Department issued a Notice of Determination of Qualification for a Noticed General Permit for the revised dock, stating that the project satisfied the requirements of Florida Administrative Code Rule 62-341.427, as well as the conditions for authorization to perform activities on state-owned submerged lands set forth in Florida Administrative Code Rule 18-21 and for activities in an aquatic preserve under Florida Administrative Code Rule 18-20. In April 2006, Petitioners filed three petitions for hearing with the Department alleging that the proposed dock significantly impedes navigation by restricting access to a tidal creek and extends more waterward than necessary to access a water depth of (minus) -4 feet at mean low water, which is prohibited for docks in aquatic preserves under Florida Administrative Code Rule 18-20.005(3)(b)3. Petitioners attached to their petitions a copy of a bathymetric survey showing the elevations of the submerged lands in the vicinity of the proposed project. In response to the information contained in the survey, the Crums revised their plans to shorten the dock to its currently proposed length of 186.56 feet. A new Notice of Determination of Qualification for a Notice General Permit was then issued by the Department on October 16, 2006. The final dock project consists of: (a) removal of the existing wood dock; (b) construction of a four-foot wide, 186.56-foot long, single family residential dock consisting of an access pier, a 12-foot by 12-foot terminal platform, and a 14-foot by 20-foot open boat lift with catwalk (the “proposed dock”). The proposed dock will terminate where the water will be four feet deep at mean low water. Navigating in and Near the Tidal Creek To the south of the Crum property is a wide expanse of salt marsh. Within the salt marsh are unnamed tidal creeks. The mouth of one tidal creek that flows to Pumpkin Hill Creek is located approximately 90 feet south of the existing Crum dock. The tidal creek is shallow and is not navigable at or near low tide. Petitioner Jones owns an 18-foot flatboat which he sometimes keeps at his residence and sometimes at Petitioner Brooks' property. The boat draws about one foot of water. Petitioner Jones uses this boat to fish in the tidal creek located near the Crum property about ten times every month. No evidence was presented to show that Petitioner Brooks or Petitioner Cole ever navigate in or otherwise use this tidal creek. There are many other tidal creeks located in the marshes associated with Pumpkin Hill Creek. Petitioner Jones boats and fishes in most of them. Petitioner Jones said that, currently, he must wait two hours past low tide for the water depth to be sufficient for him to get into the tidal creek near the Crum property. His usual course to the creek lies just beyond the end of the existing Crum dock. He claims there is a channel there, but no channel is shown on the survey or in any of the parties' photographs. After the proposed dock is constructed, Petitioner Jones' usual course to the tidal will be obstructed. He contends that the new course he would have to take to the tidal creek will take him across shallower areas of Pumpkin Hill Creek so that he will have to wait two more hours (a total of four hours) after low tide to get into the creek. Therefore, Petitioner Jones' alleged injury is the reduction of the hours available to him to navigate in and out of the tidal creek for fishing. The existing Crum dock terminates on a broad mud flat which is exposed at mean low water. However, the bathymetric survey shows the mud flat is at a lower elevation near the end of the dock so water covers this area before it covers the rest of the mud flat. However, the bathymetric survey also shows the elevation of the bottom rising as one moves south from the existing dock. At the mouth of the tidal creek the elevation is 1.0 feet NGVD (National Geodetic Vertical Datum, an official, surveyed reference point). Because the tidal creek drains into the main body of Pumpkin Hill Creek, a reasonable inference can be made that the bottom elevations in the creek generally become higher (and the water depths decrease) as one moves up the creek toward dry land. Prop scars in the exposed bottom at the end of the existing dock indicate that boats have traveled over this area when the water was so shallow that the engine props were striking the bottom. Prop scarring can cause turbidity and damage to benthic organisms. The bathymetric survey indicates that mean high water in this area of Pumpkin Hill Creek is 3.03 feet NGVD, and the mean low water is -1.78 feet NGVD. The mean tidal fluctuation between mean low water and mean high water is thus 4.81 feet. Randall Armstrong, who was accepted as an expert in navigation and piloting, explained that in this area, where there are two daily tides, the water elevation will generally increase by 1/12 of the mean tidal fluctuation in the first hour after mean low water, another 2/12 of the fluctuation in the second, and 3/12 in the third hour. Applying this general rule to the tidal fluctuation here of 4.81 feet results in an estimated 1.2-foot increase in water elevation two hours after low tide and a 2.4-foot increase three hours after low tide. Based on the mean low water elevation of -1.78 feet NGVD, the water elevation would usually be about -0.6 foot NGVD two hours after low tide and 0.6 foot NGVD three hours after low tide. Therefore, the tidal creek (with a bottom elevation of 1.0 foot NGVD at the mouth) would usually be "dry" two hours after low tide and would usually have less than a foot of water three hours after low tide. That evidence contradicts Petitioner Jones' statement that he now navigates into the tidal creek two hours after low tide. That might occasionally be possible, but the bathymetric survey indicates the creek would usually be too shallow at that time. In fact, the evidence suggests that the tidal creek is only reliably navigable without causing prop scars to the bottom by using boats with very shallow draft and waiting until high tide (or shortly before or after) when the water depth at the mouth of the creek would be about two feet. It was Mr. Armstrong's opinion that the 1.0-foot NGVD elevation at the mouth of the tidal creek determines when and how long the tidal creek is navigable, and those times would not be affected by the proposed dock. He described the new course that a boater would use to navigate into the tidal creek after the proposed dock is built. He used the bathymetric survey to show that when the water is deep enough to navigate into the tidal creek, the water depth is also sufficient to navigate the new course. The proposed dock might, as Petitioner Jones alleges, cause boaters to traverse a longer section of the mudflat then they do currently. However, the more persuasive testimony supports the Crums' position that the navigability of the tidal creek is controlled by its shallowest point at the 1.0-foot NGVD elevation and that the proposed dock will not interfere with navigation of the tidal creek by requiring boaters to traverse shallower areas. Petitioner Jones testified that he regularly navigates his boat close to the existing Crum dock. The evidence does not indicate that the proposed dock would cause an unreasonable risk of collision for boaters using the new course to the tidal creek.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Secretary of the Florida Department of Environmental Protection enter a final order that grants Noticed General Permit No. 16-253057-002-EG to the Crums. DONE AND ENTERED this 22nd day of December, 2006, 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 22nd day of December, 2006.
Findings Of Fact Petitioner owns a parcel of land including 24 lots that front on an L- shaped canal 1,520 feet long that is landlocked at both ends. At the top, the L-shaped canal is 40 feet across. It has almost perpendicular sides and is eight to ten feet deep. Petitioner proposes to dredge with a steel-track dragline in order to connect the landlocked canal to a canal system that is connected to Kings Bay in Citrus County. Culverts would be placed at the north end of the canal, and earth at the other end would be permanently removed, extending the canal. One result of such dredging would be that two additional lots would abut the L-shaped canal. Even before he bought the property, petitioner discussed some of the problems this project might entail with Alan Burdett, a DER employee. In order to minimize turbidity in open waters, petitioner proposes to dredge outward from the L-shaped canal. Only after the sand from the initial dredging had settled would the final increment of earth be excavated and then only on an incoming tide. Part of the fill would be placed on the bottom of the L-shaped canal to decrease its depth to roughly five feet, more nearly approximating the depth of the canal system to which it would be connected. The water in the L-shaped canal has a high biochemical oxygen demand. The surface is covered with mats of water hyacinths. Floating vegetation intercepts sunlight and interferes with photosynthesis in plants underneath, decreasing their oxygen output. Levels of dissolved oxygen in the water fall as a result. At night, moreover, floating plants may use dissolved oxygen from the water. Dissolved oxygen levels vary diurnally and decrease with depth where water strata are undisturbed. In general, dissolved oxygen levels vary inversely with water temperature. On June 11, 1980, a water sample taken from the bottom of the L-shaped canal was found to be devoid of dissolved oxygen, while a sample from the surface contained 0.4 milligrams per liter of dissolved oxygen. One of petitioner's witnesses described the water in the L-shaped canal as very foul. On the morning of August 21, 980, a dissolved oxygen level in the L-shaped canal of two milligrams per liter was measured. DER's Exhibit No. 2. Sampling of water in the L-shaped canal by petitioner's agent on October 4 and 5, 1979, indicated dissolved oxygen levels of 4.1 milligrams per liter at high tide and 0.5 milligrams per liter at low tide. Petitioner's Exhibit No. 5, Table 3. A witness who reported seeing fish in the L-shaped canal testified that introducing water from the L-shaped canal into the existing canal system could cause a localized fish kill. This danger is evidently not very great, but the evidence did establish that the high level of biochemical oxygen demand and low level of dissolved oxygen found in the L-shaped canal are harmful rather than helpful to fish. The canal system which would receive the water now contained in the L- shaped canal, opens into Kings Bay, the spring-fed source of Crystal River, which one of the petitioner's witnesses characterized as a "complex and sensitive estuarine system." Kings Bay, Crystal River, and the canals into which petitioner proposes to open the L-shaped canal constitute Class III waters. Water in this vicinity is high in chlorides but is classified as fresh water. In the canal system to which petitioner proposes to add the L-shaped canal, rafts of water hyacinths are present. Water quality in the canal system is poor, according to petitioner's expert witness. Measured level of dissolved oxygen in this canal system ranged from 9.0 milligrams per liter in early October of 1979, Petitioner's Exhibit No. 5, Table 3, to 1.9 milligrams per liter on June 11, 1980. Petitioner's Exhibit No. 6. It takes some four days to flush the existing canal system. The time necessary for flushing the canal system would increase if it is enlarged as proposed by petitioner, even though flushing action in one part of the present canal system would be facilitated. Crystal River is subject to tidal influence. Notwithstanding the 600 million gallons of water entering Kings Bay daily from springs, the incoming tide causes a current upriver. As a result, as much as five percent of a substance flushed out of a canal system like the one petitioner proposes to enlarge can be reintroduced into the canal system when the tidal flow reverses. The fecal coliform count in a sample of water taken from the L-shaped canal was very low, 10 per 100 milliliters. A water sample taken nearby downstream, in the vicinity of residential development, contained 850 fecal coliform bacteria, per 100 milliliters. There was no evidence, however, that these bacteria were attributable to human excreta rather than to the excreta of some wild animal. According to petitioner, persons who live in the area hope this project will go forward because they believe that the stagnant water in the L- shaped canal is a breeding place for mosquitoes. No witness reported seeing mosquito larvae in the L-shaped canal, however, and a biologist who had observed the canal was questioned on this point. Testimony was uncontradicted that small fish of a kind that feed on mosquito larvae inhabit the L-shaped canal. The evidence did not establish that mosquitoes breed in the L-shaped canal. Manatees winter in Kings Bay and Crystal River. These vegetarian mammals are members of an endangered species. Of 34 animals in Kings Bay "sampled [in the fall of 1979] . . . [26] . . . had prop scars, and 10 . . . had wounds in a stage of healing that suggested they were less than two months old." Petitioner's Exhibit No. 3. Efforts to protect the manatees include strict speed limits and a recently constructed structure around a favorite spot to act as a barrier for motor boats. A purpose of making the canal connections petitioner proposes is to make Kings Bay and Crystal River more accessible to motor boats.
Recommendation Upon consideration of the foregoing, it is RECOMMENDED: That respondent deny petitioner's application for permit. DONE AND ENTERED this 19th day of December, 1980, in Tallahassee, Florida. ROBERT T. BENTON, II Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 904/488-9675 Filed with the Clerk of the Division of Administrative Hearings this 22nd day of December, 1980. COPIES FURNISHED: John Crider, Esquire Route 1, Box 405 Plantation Village Crystal River, Florida 32629 David M. Levin, Esquire Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32301
The Issue The issue to be determined in this case is whether the Florida Fish and Wildlife Conservation Commission (“Commission”) is entitled to the requested minor modification of its existing Environmental Resource Permit and Sovereign Submerged Lands Authorization, which would authorize the backfilling of a portion of Fisheating Creek as part of a restoration project.
Findings Of Fact The Parties The Department is the state agency responsible for regulating construction activities in waters of the State. The Department has also been delegated authority to process and act on applications for authorization from the Board of Trustees for activities on sovereignty submerged lands. The Commission is the state wildlife management agency. The Commission is the applicant for the minor modification at issue in this proceeding. Petitioner, Save Our Creeks, Inc., is a non-profit Florida corporation with its offices in Lake Place, Florida. Save Our Creeks’ members are interested citizens and groups devoted to the conservation of natural resources, especially creeks and small waterways. Save Our Creeks owns property on Fisheating Creek in Glades County, approximately nine miles upstream of Cowbone Marsh. Petitioner, Environmental Confederation of Southwest Florida, Inc. (ECOSWF), is a non-profit Florida corporation with its offices in Sarasota, Florida. A substantial number of the members of Save Our Creeks and ECOSWF use and enjoy the waters of Fisheating Creek for a variety of purposes, including canoeing, boating, fishing, and wildlife observation. Their interests would be affected by the proposed project. Fisheating Creek and Cowbone Marsh Fisheating Creek flows from Highlands and Desoto Counties south and east through Glades County. The Creek runs in a northeastern direction through Cowbone Marsh before draining into Lake Okeechobee. The Creek contributes approximately nine percent of the flow into Lake Okeechobee. Fisheating Creek is designated as Class III waters. Cowbone Marsh is located about eight miles west of Lake Okeechobee. It is a mile and a half long and two miles wide, covering about 2,500 acres. Fisheating Creek and Cowbone Marsh are within the Fisheating Creek Wildlife Management Area. In 1929, the United States Army Corps of Engineers ("USACOE") prepared a survey map which shows Fisheating Creek as an open water route from Lake Okeechobee through Cowbone Marsh and continuing beyond. The accuracy of the course of the Creek as it is depicted in the 1929 map is not disputed by the parties. The 1929 map does not describe the depth or width of the Creek. Some evidence about historical widths and depths was presented, but it was incomplete. There was credible evidence showing that some segments of Fisheating Creek were four to five feet deep and 20 to 30 feet wide. There was also credible evidence that other segments of the Creek were shallower and narrower. The record shows only that canoes, kayaks, and other vessels drawing twelve inches of water or less have been used on the Creek. For a number of years, much of Fisheating Creek has been choked by vegetation and “tussocks.” Tussocks are floating mats of vegetation. Carolina willow now dominates Cowbone Marsh, having replaced areas that were previously open water or covered with herbaceous marsh communities. The vegetation in the Creek made navigation difficult or impossible through Cowbone Marsh. The 1998 Judgment and 1999 Settlement Agreement In 1989, Lykes Bros., Inc., asserted ownership of Fisheating Creek and tried to prevent public access to the Creek. The Board of Trustees responded with a civil action against Lykes Bros., seeking a determination that Fisheating Creek throughout Glades County is navigable and, consequently, the title to its bottom is held by the Board of Trustees as sovereignty submerged lands. Petitioners in this administrative proceeding intervened in the circuit court case on the side of the Board of Trustees. The jury found Fisheating Creek navigable throughout Glades County and the court entered a judgment in 1998 determining that the Creek is sovereignty land held in trust by the Board of Trustees. The judgment did not include any findings about the widths and depths of Fisheating Creek. The court retained jurisdiction to determine the boundaries of the Creek, but the boundaries were never determined. The circuit court case was appealed, but in May 1999, the parties entered into a settlement agreement pursuant to which Lykes Bros. agreed to sell to the Board of Trustees a conservation easement on upland areas adjacent to Fisheating Creek, to be held and managed for the benefit of the public. The conservation area is known as the Fisheating Creek Expanded Corridor. The settlement agreement also called for the Board of Trustees to lease the Fisheating Creek Expanded Corridor to the Commission, who the Board of Trustees designated as the managing agency. The settlement agreement acknowledges the public's "right to boat and canoe on Fisheating Creek throughout the entire Expanded Corridor.” With respect to navigation, the settlement agreement provides: Protection of Navigation. The navigability of Fisheating Creek throughout the entire Expanded Corridor shall be maintained and enhanced through a navigation maintenance program which includes aquatic weed control and removal of fallen logs and similar obstructions. This section does not authorize dredging. The Cookie-Cutter Project In January 2009, the Commission aerially applied an herbicide to kill the vegetation along the course of the Creek. In April 2010, the Commission contracted with A & L Aquatic Weed Control (“A & L”) to “[m]echanically dismantle floating tussocks.” The Commission directed A & L to perform the project by “shredding vegetation and accumulated organic material to re-open the navigation across Cowbone Marsh.” The Commission instructed A & L to re-open a channel "approximately 2.2 miles long and 18-20 feet wide,” and to clear some areas of the Creek “as wide as 35-feet wide occasionally as necessary to turn shredding equipment during the shredding process.” The Commission did not direct A & L to dredge a deeper channel. The vessel used by A & L to perform the work is known as a “cookie-cutter.” The cookie-cutter has two cutting wheels at the front of the vessel to shred and side-cast vegetation. The cutting wheels also act as propellers to propel the cookie- cutter forward. The cookie-cutter can clear woody vegetation up to four inches in diameter. The two cutting wheels can be lowered or raised in order to cut vegetation at various depths in the water. Evidence was presented to show how the cutting wheels could be lowered two to three feet, but it was not made clear whether the cutting wheels could be lowered even more. No evidence was presented to establish how deep the cookie-cutter blades were lowered into Fisheating Creek during the work performed by A & L. No evidence was presented to establish what depth of soil the cookie-cutter was capable of dredging through if the cutting wheels cut into the Creek bottom. The cookie-cutter began on the eastern side of Cowbone Marsh and moved upstream. The parties disputed the point of beginning. Petitioners contend it was farther upstream, but the more persuasive evidence for the point of beginning was presented by the Commission. The cookie-cutter generally followed the course of Fisheating Creek as depicted on the 1929 USACOE map. However, there are three areas where the cookie-cutter deviated from the 1929 map. One deviation is about 100 feet off-line. The other two deviations are 25 to 30 feet off-line. No explanation was given for the deviations, but the cookie-cutter operator generally followed the path of dead vegetation killed by the aerial spraying of herbicide and the line may have deviated from the true course of the Creek in these three areas. During the cookie-cutter project, water levels within the Creek and Marsh fluctuated. At some point, the project was postponed due to low water conditions. A sandbag dam was placed in the channel to artificially raise the water level so the cookie-cutter could continue. In July 2010, the Department and USACOE ordered the Commission to stop the project due to its adverse environmental impacts, including the draining of Cowbone Marsh. Before the cookie-cutter stopped, it had cleared about two miles of Fisheating Creek. Where the cookie-cutter stopped there is a discernible channel continuing west, but it is shallower and narrower than the channel created by the cookie-cutter. At this terminus, the cookie-cutter was dredging a deeper and wider channel than existed naturally. Additional evidence of dredging along the Creek channel is the soil cast up on the banks, and the removal of peat soils in the bottom of the Creek and exposure of underlying mineralized soil. The cookie-cutter altered the natural conditions of the Fisheating Creek in some areas by dredging the sides and bottom of the Creek. The dredging by the cookie-cutter altered the hydrology of the Creek and Marsh. The Marsh drained rapidly to Lake Okeechobee. In addition, large quantities of soil, muck, silt, and debris disturbed by the cookie-cutter were carried downstream toward Lake Okeechobee. Some of the soil and debris settled out at the mouth of the Creek, causing shoaling. The sides of the channel in many areas is continuing to erode. The Department’s Emergency Final Order In July 2010, the Department issued an Emergency Final Order, which directed the Commission to: (a) remove the cookie- cutter and immediately stop all activities associated with the cookie-cutter; (b) place temporary emergency flow restrictors in the channel to reduce flow velocities and minimize downstream sediment transport, as well as raise the water level to minimize surface and groundwater flow from the adjacent marsh into the channel; and (c) develop a long-term remedial plan to return water levels within the Marsh to pre-impact conditions and apply to the Department for an Environmental Resource Permit to implement the plan. In August 2010, pursuant to the Emergency Final Order, the Commission constructed an aluminum weir in the Creek to decrease flow velocities, reduce erosion, and maintain the hydration of the Marsh. The weir was placed approximately half a mile downstream from where the cookie-cutter stopped. During the wet season of 2010, the aluminum weir was completely submerged. Erosion and shoaling occurred immediately downstream. The Commission determined that the weir was ineffective and removed it. The EPA Compliance Orders In March 2011, the EPA issued an Administrative Compliance Order in which it alleged the Commission had engaged in "unauthorized activities associated with the excavation and construction of a channel within Cowbone Marsh.” The Commission was ordered to construct an initial check dam in the upper reaches of the Marsh to minimize the loss of groundwater and prevent further adverse impacts. In April 2011, EPA issued a second Administrative Compliance Order, directing the Commission to construct five additional check dams. The order describes the check dams as "initial corrective measures" and states that the “final restoration plan will include measures for backfilling the unauthorized cut through Cowbone Marsh.” The Initial Permits In May 2011, the Department issued to the Commission an Environmental Resource Permit and Sovereign Submerged Lands Authorization, which authorized the construction of six earthen check-dams within the portion of Fisheating Creek where the cookie-cutter had operated. The purpose of the check dams was to improve the hydrology of Cowbone Marsh and promote the accumulation of sediments within the channel to restore the natural depth and width of Fisheating Creek. The check dams were constructed using sand bags, marine plywood, coconut matting, and pressure-treated posts. The check dams have ten-foot wing walls which extend into the surrounding marsh. The wing walls are to prevent erosion around the dams and to direct water into the marsh. The installation of the check dams was completed in July 2011. Since that time, some repair efforts have been required to replace lost sandbags and to address erosion that has occurred around the check dams. The check dams have been somewhat successful in maintaining higher water levels in the Marsh. However, they have not restored natural hydrologic conditions, or prevented erosion along the channel. The Proposed Modification In June 2012, the Commission applied for a "minor modification" to the existing permits, which the Department granted. The modified permits authorize the Commission to backfill the channel cleared by the cookie-cutter with approximately 27,000 cubic yards of sand. The check dams would not be removed. The sand for the backfilling would be excavated from a "borrow" area located about a mile away. Petitioners contend that the borrow area is in wetlands, but the more persuasive evidence is that it is uplands. A 1.164-mile temporary access road would be constructed from the borrow area through uplands and wetlands to a 100-square-foot staging area adjacent to Fisheating Creek where the backfilling would begin. Wetland impacts would be minimized by constructing the temporary access road and staging area with interlocking mats. Petitioners did not show that the route or manner in which the temporary road would be constructed and used would have unacceptable adverse impacts to the environment or otherwise fail to comply with applicable criteria. The sand would be dumped into the Creek and then compacted. As the Creek was filled, the compacted sand would be used as a roadway for the trucks to transport sand to the end of the filled area to dump more sand, until the backfilling was completed. The proposed backfilling would not restore a typical stream profile, deepest in the middle and becoming more and more shallow moving toward the banks. That kind of profile can be seen in the photographs of Fisheating Creek taken before the cookie-cutter project. The proposed modification calls for filling the cut channel from "bank to bank": Final Grade: Fill must be compacted and ground surface elevations must be the same as the adjacent marsh ground surface elevations (within a tolerance of +6/-6 inches) The filled channel would be seeded and fertilized to grow native vegetation. The proposed seed mixture is mostly water grasses, but has some willow included. Compliance with Criteria Florida Administrative Code Rule 62-343.100 provides that a modification is treated as either minor or major depending on the magnitude of the changes and the potential for environmental impacts that differ from those addressed in the original permit: modification shall be considered to be minor only where the modification does not: Require a new site inspection by the Department in order to evaluate the request; or Substantially: Alter permit conditions; Increase the authorized discharge; Have substantially different or increased impacts on wetlands and other surface waters. . . ; Decrease the retention/detention specified by the original permit; Decrease any flood control elevations for roads or buildings specified by the original permit; or Increase the project area. At the final hearing, it was not shown how the modification meets the criteria for a minor modification. The proposed modification does not meet the criteria because it required new site visits, substantially alters the original permit conditions, and has a substantially different impact on wetlands. The criteria applicable to an application for a major modification were not identified, nor was it shown how the evidence presented at the final hearing satisfies the requirements for such an application. The proposed backfilling plan would not restore the natural conditions that existed in Fisheating Creek. The Commission did not show that it made a reasonable effort to determine the pre-disturbance conditions throughout the disturbed area. The proposed modification would not restore the natural depths in the Creek. The backfilling plan calls for a finished grade of plus or minus six inches above the level of the adjacent marsh. A final grade of zero to plus six inches would essentially eliminate Fisheating Creek. The maximum allowed depth of minus six inches below the level of the adjacent marsh would be shallower than the natural depths in portions of the Creek. Even the Department described the Creek was "one to two feet deep" before the cookie-cutter project. Adequate measures are not included in the permits to ensure that after backfilling and planting, the Creek would have the ordinary attributes of a creek. The proposed modification would not restore the pre- existing hydrologic conditions of the Creek. The modified Environmental Resource Permit requires strict compliance with the terms of the 1999 settlement agreement. The modification would not be consistent with the 1999 settlement agreement because the backfilling and planting would destroy the navigability of the Creek. Petitioners want to preserve the current depths of Fisheating Creek, but some of those depths are unnatural, being the result of dredging by the cookie-cutter. However, the proposed backfilling would not restore the natural depths in some parts of the Creek and would not maintain the navigability of the Creek, even for shallow draft vessels such as canoes and kayaks.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law it is RECOMMENDED that the Department deny the requested modification to the Commission's Environmental Resource Permit and Sovereignty Submerged Lands Authorization. DONE AND ENTERED this 3rd day of July, 2013, in Tallahassee, Leon County, Florida. S BRAM D. E. CANTER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 3rd day of July, 2013. COPIES FURNISHED: W. Douglas Beason, Esquire Department of Environmental Protection Douglas Building, Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 Alisa A. Coe, Esquire Joshua D. Smith, Esquire Bradley I. B. Marshall, Esquire Earthjustice 111 South Martin Luther King, Jr., Boulevard Tallahassee, Florida 32301 Harold "Bud" Viehauer, General Counsel Ryan Osborne, Esquire Florida Fish and Wildlife Conservation Commission Bryant Building 620 South Meridian Street Tallahassee, Florida 32399-1050 Herschel T. Vinyard, Jr., Secretary Department of Environmental Protection Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 Matthew Z. Leopold, General Counsel Department of Environmental Protection Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 Lea Crandall, Agency Clerk Department of Environmental Protection Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000
Findings Of Fact Petitioners own property located in Section 6, Township 9, Range 16 East, Gilchrist County, Florida (the "Moore property"). Mrs. Linda Bridges owns property adjacent to and south of the Moore property (the "Bridges property"). Respondent, Bridges ("Bridges"), is in possession and control of the Bridges property. Mr. Glenn Miller owns property adjacent to and south of the Bridges property (the "Miller property"). ITT-Rayonier owns property west of the Moore, Bridges, and Miller properties (the "ITT property"). A dirt road runs north and south in front of and along the western border of the Moore, Bridges, and Miller properties (the "road"). The road separates the ITT property, to the west, from the Moore, Bridges, and Miller properties, to the east. Prior to 1989, surfacewater historically flowed in a northeasterly direction. It flowed northeasterly from the ITT property through a 24 inch road culvert onto the Bridges property. It then flowed north through a 36 inch culvert on the southerly portion of the Moore property, across the Moore property, and into Weeks Lake to the north of the Moore property. In 1989, with the consent of Bridges but without a permit from the District, Petitioners began a construction plan that included the installation of two 62 inch culverts to enhance the northeasterly flow of surfacewater from the ITT property to Weeks Lake. One 62 inch culvert was intended to replace the 24 inch culvert under the road forming the westerly boundary between the ITT property and the Moore and Bridges properties. The second 62 inch culvert was intended to replace the 36 inch culvert on the southerly boundary of the Moore property. The second 62 inch culvert was needed so the same volume of surfacewater flowing from the ITT property through the 62 inch road culvert could continue its northerly flow from the Bridges property to the Moore property and on to Weeks Lake. Petitioners replaced the 24 inch road culvert with a 62 inch culvert but left intact the 36 inch culvert on the southerly portion of their property. Thus, a greater volume of surfacewater can flow from the ITT property through the 62 inch culvert onto the Bridges property but a lesser volume of surfacewater can flow from the Bridges property through the 36 inch culvert onto the Moore property. Petitioners removed fill material from the ITT property to widen and increase the height of the road bed on the westerly boundary between the ITT and Moore properties. The heightened road bed impounds a greater volume of surfacewater on the ITT property before it flows over the road onto the Moore property. This can increase the rate of flow of surfacewater through the 62 inch road culvert onto the Bridges property under certain circumstances. Petitioners increased the depth and width of existing ditches, and added new ditches along a portion of the road bed onto the Bridges property. The increased ditch capacity further increases the volume of surfacewater that can flow onto the Bridges property. Petitioners constructed a berm running east and west on the southerly boundary of the Moore property. This increases the volume of surfacewater that can be impounded on the Bridges property without flowing onto the Moore property through areas other than the 36 inch culvert that Petitioners left intact on the southerly portion of their property. The 62 inch road culvert, increased ditch capacity, heightened road bed between the ITT and Moore properties, the berm on the southerly portion of the Moore property, and the 36 inch culvert increase the volume of surfacewater that is impounded on the Bridges property before continuing its historic northeasterly flow. Surfacewater impounded on the Bridges property floods the Bridges property and properties to the south of the Bridges property. Although flooding occurred on the Bridges property prior to the 1989 construction, flooding on the Bridges property and properties south of the Bridges property is greater since Petitioners completed construction. In addition, the ITT property drains more readily. On or about October 13, 1993, Bridges applied to the District for a General Surfacewater Management Permit to replace the 62 inch road culvert with a 24 inch culvert pursuant to Florida Administrative Code Rule 40B-4.2010(1)(a). A General Surfacewater Management Permit is issued for activities that have little or no potential adverse impact to surfacewater resources for the District. The application satisfied all of the criteria for the permit at issue. ITT does not object to the proposed permit even though more surfacewater will be impounded on the ITT property. Issuance of the proposed permit will approximate the flow of surfacewater that existed prior to Petitioners' installation of a 62 inch road culvert without a permit in 1989.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent, Suwannee River Water Management District, enter a Final Order and therein GRANT Respondent, Paul Bridges', Application For Agriculture Or Forestry General Surfacewater Management Permit. DONE and ENTERED this 2nd day of March 1994, in Tallahassee, Florida. DANIEL S. MANRY 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 2nd day of March 1994. APPENDIX TO RECOMMENDED ORDER, CASE NO. 93-6656 Petitioners' Proposed Findings Of Fact. 1.-4. Rejected as immaterial 5. Rejected as recited testimony 6.-7. Rejected as not supported by credible and persuasive evidence 8. Rejected as irrelevant and immaterial 9.-13. Rejected as not supported by credible and persuasive evidence 14.-15. Rejected as irrelevant and immaterial 16.-19. Rejected as not supported by credible and persuasive evidence Rejected as irrelevant and immaterial Rejected as not supported by credible and persuasive evidence Rejected as recited testimony 23.-24. Rejected as not supported by credible and persuasive evidence Respondent, Paul Bridges, Proposed Findings Of Fact. Respondent, Bridges, did not submit proposed findings of fact. Respondent, Suwannee River Water Management District, Proposed Findings Of Fact. All of the District's proposed findings of fact are accepted in substance. COPIES FURNISHED: James H. and Jerrilyn Moore, pro se Route 2, Box 120-E Trenton, FL 32693 Paul Bridges, pro se Route 2, Box 120K-1 Trenton, FL 32693 Janice F. Bessinger, Esquire Brannon, Brown, Haley, Robinson & Cole Post Office Box 1029 Lake City, FL 32056-1029 Jerry Scarborough, Executive Director Suwannee River Water Management District Route 3, Box 64 Live Oak, FL 32060
The Issue The issue is whether Petitioners are entitled to an after-the-fact permit from Respondent for the garage and storage building erected by Petitioners within the floodway of the Suwannee River.
Findings Of Fact Petitioners are the owners of real property located at Lot 15, Suwannee Bluffs as per Plat Book 4, page 18 of the public records of Lafayette County, Florida. Respondent, Suwannee River Water Management District, is an agency of the State of Florida with a responsibility for surface water management within the District. Petitioners live in a home on their Suwannee River property and, in 1999, completed a garage and storage structure on the property without obtaining a permit for construction of the structure. The structure measures 35 feet by 50 feet. It is a concrete block structure on a concrete slab with a metal roof. There are three doors on one side of the structure. The remainder of the structure is enclosed. On or about March 31, 1999, Petitioners, prior to construction of the garage and storage structure, applied for an environmental resource permit for a boat ramp, which permit was subsequently granted. The entire lot of Petitioners is within the floodway of the Suwannee River. The floodway is defined as a work of Respondent's district in Rule 40B-4.3000, Florida Administrative Code. The Suwannee River flows within the boundaries of the Suwannee River Management District. On or about April 18, 2000, Notice of Violation was sent to Petitioners by Respondent. On or about June 19, 2000, Petitioners executed a Notice of Intention to construct a surface water management system for the already completed garage structure. Basically, the surface water management system envisioned by Petitioners would have consisted of modifications to the already completed garage to permit flood waters to flow through the structure. Respondent did not send any responsive formal notice of denial to Petitioners regarding such proposed intention. Instead, Respondent filed a lawsuit in July of 2000, within the 90-day period required by Section 120.60(1), Florida Statutes, in circuit court against Petitioners to prevent the construction of the system. Such action by Respondent constituted denial of Petitioners' requested action. Petitioners' garage construction was in violation of Ordinance 1-87 of Lafayette County, Florida, and in fact, Petitioners received a Notice of Violation from Lafayette County, Florida, dated December 9, 1999, which has still not been resolved. Rule 40B-4.3040, Florida Administrative Code, prohibits the placing of a structure in the works of a District without a works of the District development permit. Petitioners' garage structure was not permitted and was in violation of the rules of the District in force and effect at the time of its construction, notwithstanding Respondent's informal delegation of enforcement of those rules to local county governments in Respondent's district prior to July 1999. Rule 40B-4.3030 Florida Administrative Code, proscribes the issuance of a works of the District's development permit for any work structures, road, or other facilities which have the potential of individually or cumulatively reducing floodway conveyance or increasing water surface elevations above the 100-year flood elevation or increasing soil erosion. Testimony of two experts offered by Respondent at the final hearing establishes that the structure in question will cumulatively reduce floodway conveyance and increase water surface elevations above the 100 year flood elevations and potentially increase soil erosion. Adverse impacts to the public interest include the following: increased flood levels; increased scouring by debris and erosion; and increased water surface elevations above the 100 year flood elevation. The cumulative impact of allowing Petitioners' structure and other structures would magnify the problems of increased erosion, debris damage, and floodway conveyance. The cumulative impact from such construction along the water could have significant cumulative adverse impact on the waters of the State of Florida and specifically, the Suwannee River.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Suwannee River Water Management District enter a Final Order dismissing the petition in this case and denying the issuance of an after-the-fact works of the District permit to Petitioners. DONE AND ENTERED this 20th day of August, 2001, in Tallahassee, Leon County, Florida. DON W. DAVIS 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 20th day of August, 2001. COPIES FURNISHED: Bruce W. Robinson, Esquire Kris B. Robinson, Esquire Brannon, Brown, Haley, Robinson & Bullock, P.A. Post Office Box 1029 Lake City, Florida 32056-1029 John L. Scott, Esquire Post Office Box 475 Branford, Florida 32008 Jerry Scarborough, Executive Director Suwannee River Water Management District 9225 County Road 49 Live Oak, Florida 32060
