Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found: Several years prior to1978, petitioner General Development Corporation (GDC) applied to the DER for a dredge and fill permit to remove a plug of land between the Ocean Breeze Waterway and the North Fork of the St. Lucie River. During the course of negotiations for this permit, it was discovered that the North Port St. Lucie Sewage Treatment Plant, owned and operated by General Development Utilities, Inc., a wholly-owned subsidiary of the petitioner, was operating without a permit from the DER and discharging effluent into a ditch which flowed into the Ocean Breeze Waterway. In March of 1978, a temporary operating permit was issued for the sewage treatment plant. In July of 1978, petitioner received from the DER Permit No. 253.123- 1031 to dredge an area approximately 800 feet in length, 90 feet in width and 6 feet in depth in order to connect the Ocean Breeze/Sagamore Waterways to the dead end oxbow of the North Fork of the St. Lucie River. The permit application was given special consideration pursuant to Rule 17-4.28(7), Florida Administrative Code. The purpose for obtaining the permit was to create direct navigable access to the North Fork of the St. Lucie River from thee Ocean Breeze Waterway. The Ocean Breeze Waterway was and is currently connected to the North Fork of the St. Lucie River by a narrow, shallow, meandering creek and lake system. However, there is not a large enough opening to allow the type of navigable access desired by the petitioner for the benefit of 118 lots plotted along the Ocean Breeze and Sagamore Waterways. Among the seven particular or special conditions attached to the dredge and fill permit issued to petitioner was that the earthen plug not be removed until such time as a permanent operational permit was issued for the sewage treatment plant owned and operated by General Development Utilities, Inc. More specifically, petitioner agreed to the following special conditions to the issuance of the dredge and fill permit: "(7) The applicant is aware that the GDC Utilities' sewage plant is providing an unknown quantity of discharge into Ocean Breeze Waterway and that this discharge may be a source of pollution to the receiving body of water unless affirmative steps are taken by the Utilities. The sewage treatment plant is currently operating under a Temporary Operating Permit (TP56-4601). In no case shall the plug at Cove Waterway be removed before an Operation Permit for the STP has been issued by the Department of Environmental Regulation." At time of issuance of the dredge and fill permit, DER personnel considered the quoted special condition number 7 to an integral part of the permit in terms of water quality assurances. General Development Utilities, Inc. has not been able to obtain a permanent operational permit from the DER for its sewage treatment plant which discharges into a ditch that flows into the Ocean Breeze Waterway. Therefore, particular condition number 7 has not been satisfied and petitioner has been unable to proceed with the dredging or removing of the plug under the permit. As a result of the delays in removal of the plug, petitioner has had to repurchase some 41 of the 118 plotted lots. The sewage treatment plant was and is still operating under a temporary permit. General Development Utilities, Inc. has requested a permanent operational permit for the sewage treatment plant and DER has issued a letter of intent to deny such a permit. As a result, General Development Utilities has petitioned DER for site specific alternative criteria pursuant to Rule 17-3.031, Florida Administrative Code. This matter is the subject of a separate proceeding currently being held in abeyance pending a determination of alternative criteria. General Development Utilities, Inc. v. Department of Environmental Regulation, DOAH Case No. 81-177. In September of 1980, petitioner sent a letter to DER requesting that special condition number seven be removed from its dredge and fill Permit No. 253.123-1031. It was intended that this request be considered as a minor modification to the dredge and fill permit. In response, DER's Chief of the Bureau of Permitting, Suzanne P. Walker, informed petitioner by letter dated October 15, 1980, that it was the staff's initial reaction, after a review of the original dredge and fill permit file, that the requirement that the sewage treatment plant obtain a permanent operational permit prior to dredging remain as a condition of the dredge and fill permit. Petitioner was informed that if it wished to pursue the matter further, the project must be reevaluated as a major modification to the dredge and fill permit. A major modification to a permit requires a new permit application and fee and is treated and processed as an initial application for a permit, with the applicant being required to provide reasonable assurances that the water quality standards will not be violated. Upon request for a minor modification, DER simply reviews the file and determines whether the request is obviously environmentally insignificant. After receipt of the letter from Mrs. Walker, petitioner supplied DER with additional water quality data. Based upon this additional data, discussions with DER staff who had been involved with the initial dredge and fill permit and the sewage treatment plant permit, and two days of sampling data collected by DER, DER determined that particular condition number seven was an integral part of the affirmative reasonable water quality assurance provided and should remain a condition of the permit. This determination was communicated to petitioner by letter dated January 7, 1981. The sewage treatment plant discharges treated effluent into a drainage ditch known as C-108. Effluent from the plant first goes into holding or retention ponds. Under its current flow, it takes about forty days for the effluent to be discharged from the plant to C-108 and the Ocean Breeze Waterway. C-108 flows into the Ocean Breeze Waterway, an artificial waterway which is presently connected to the North Fork of the St. Lucie River by a narrow, shallow meandering creek and lake system. The sewage treatment plant currently operates at 300,000 gallons per day but has an authorized capacity to operate at two million gallons per day. It currently contributes approximately two percent of the total daily flow to C-108. The Ocean Breeze Waterway and C-108, independent of the sewage treatment plant, drain approximately 4,000 square acres and produce about 35 percent of the water that will flow into the North Fork. The North Fork is tidal, with four one foot tides per day. The tidal action comprises almost 63 percent of the moving water. At a two million gallons per day discharge, the wastewater plant would be contributing about 12 percent of the water that would be going into the North Fork from the Ocean Breeze Waterway system. In comparison with two adjacent drainage systems, the Ocean Breeze system contributes only about three percent of the fresh water which flows into the North Fork. The dissolved oxygen levels of C-108 are chacteristically below the state standard of five milligrams per liter, primarily due to the seepage of ground water into the canal. Due to man-made alterations and to natural phenomena, the North Fork's dissolved oxygen levels also characteristically fall below state standards. The dissolved oxygen level of the Ocean Breeze Waterway is characteristically above state standards. Higher levels of dissolved oxygen coming from the sewage treatment plant improves the dissolved oxygen levels of the existing system. High levels of nitrogen, phosphate and chlorophyll have been found near the point of discharge. The quality of water in the North Fork is better than in the Ocean Breeze Waterway. It was the opinion of petitioner's experts that no change in dissolved oxygen levels would occur in the Ocean Breeze Waterway or the North Fork if the plug of land between these water bodies were removed. Petitioner's witnesses also opined that the Ocean Breeze/C-108 system was not a source of nutrient enrichment to the North Fork, and that the present creek system provided no water quality benefits in the form of nutrient uptake for the North Fork. It was estimated that, if the plug of land were removed pursuant to the permit, a pollutant placed at the upper end of the Ocean Breeze Waterway would be diluted by 98 percent in 26 hours in lieu of the present 39 hours due to increased flushing. These opinions were based upon analyses by petitioner's witnesses of various samplings and data regarding dissolved oxygen, nutrients and phytoplankton. The respondent's witnesses felt that the poor water quality in the Ocean Breeze Waterway was attributable in large part to the sewage treatment plant discharge and, if the plug of land were removed, the water quality problems would be moved to the North Fork and the St. Lucie River. It was felt that the present creek and lake system -- the narrow circuitous connection presently existing between the canal and the river -- reduces the nutrients which otherwise would flow into the river. These conclusions were based upon DER's own survey, a review of the dredge and fill permit file and a review of the additional data supplied by the petitioner General Development Corporation. No data regarding the water quality of the effluent from the sewage treatment plant was submitted by the petitioner at the time of DER's review of the original application for the dredge and fill permit.
Recommendation Based upon the findings of fact and conclusions of law recited herein, it is RECOMMENDED that the request of General Development Corporation to modify Permit Number 253.123-1031 by removing particular condition number seven be DENIED. Respectfully submitted and entered this 14th day of October, 1981, in Tallahassee, Florida. DIANE D. TREMOR, 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 14th day of October, 1981. COPIES FURNISHED: Valerie Fravel Corporate Counsel General Development Corp. 1111 South Bayshore Drive Miami Florida 33131 Alfred J. Malefatto Assistant General Counsel 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
The Issue Whether Petitioner should take enforcement action against Respondent for alleged violations of Chapter 403, F.S., and Chapter 17, F.A.C., as set forth in Notice of Violation and Orders for Corrective Action, dated September 4, 1978.
Findings Of Fact Respondent Deseret Ranches of Florida, Inc., (Deseret), a wholly owned subsidiary of the Church of Jesus Christ of Latter Day Saints, conducts agricultural and ranching operations on approximately 283,000 acres of land owned by the Church which is located in parts of Orange, Osceola, and Brevard Counties. Over 80 percent of the acreage consists of unimproved and semi- improved pasture or range land, and the remainder is utilized for production of sod, clover, and citrus. Citrus production involves the use of 1800 acres. An average cattle herd of 44,500 head is maintained on the pastureland with an average density of 5.4 acres per head. Some 104,000 acres consists of lowlands which are subjected to periodic flooding. This land is located a short distance to the west of the St. Johns River and over 60,000 acres are channelized with canals, ditches, and dikes to improve drainage in order that the pastureland will remain relatively dry in periods of excessive rainfall. To prevent water in the interior canals from flooding the land, pumping stations are located at a number of points which periodically discharge water from the interior canals into larger canals which flow into the St. Johns River. Both diesel and electrically operated pumps are used for this purpose. There are also canals which discharge by gravity flow to the St. Johns River. Deseret Ranch is divided into north and south areas that are separated by land owned by others. The northern portion is bordered on the east by the North Mormon Outside Canal which parallels the St. Johns River. The southern portion is bordered on the east by the South Mormon Canal which also parallels the St. Johns River. The Bulldozer Canal forms the northern border of the southern portion of the ranch. The latter two canals meet at the northeastern corner of the southern area at the St. Johns River. The ranch has a number of artesian wells which are used primarily for providing water for stock and for agricultural irrigation during dry periods of the year. The St. Johns River Water Management District has authorized an annual allocation of 2522 million gallons of ground water per year for these purposes. (Testimony of Dahl, Petitioner's Exhibits 26, 27, 35, Respondent's Exhibit 1) On January 7, 1976, a Department of Environmental Regulation (DER) biologist observed turbidity at the southern end of Lake Hellen Blazes which is in the St. Johns River near the confluence of the Bulldozer and South Mormon Canals. He determined that a Deseret operating pump discharging into Bulldozer Canal was the cause of the turbid water. Water samples taken at various points upstream and downstream from the discharge were analyzed and showed violations of state water quality standards relating to turbidity. DER thereafter advised Respondent to apply for a temporary operating permit for the discharges from the ranch, but it declined to so. At informal meetings during 1976, Respondent explained that the turbidity problem had arisen during a time when interior canals were being cleaned and it was necessary for the pump to be placed into operation to move out the water in order that a dragline operator could accomplish the cleaning task. Respondent agreed at these meetings not to operate its pumps in the future when cleaning canals and there have been no observable turbidity violations since that time. (Testimony of Cormier, Dahl, Hulbert, Petitioner's Exhibits 1, 2, 31, 32-34, Respondent's Exhibit 6) On July 25, 1978, a fish kill in the vicinity of Camp Holly near U.S. Highway 192 was reported to DER personnel. Camp Holly is a fish camp located approximately eight to ten miles north of Bulldozer Canal on the St. Johns River. About 30 dead fish were observed around Camp Holly and several more between that location and Bulldozer Canal. Investigation disclosed that pumps at two stations on the Bulldozer Canal were in operation on that day, and water samples taken upstream and downstream of the operating pumps showed dissolved oxygen levels ranging from 1.8 mgs to 2.8 mgs per liter. A dragline was observed in an interior canal on the Deseret Ranch, but it is unknown if it was then in operation. The St. Johns River was high in 1978. (Testimony of Hadley, Cataldo, Auth, Petitioner's Exhibits 3, 4, 4A, 25, Respondent's Exhibit 5) The flood plain of the St. Johns River South of Lake Washington has decreased significantly over the years due, in part, to the fact that large areas are now behind dikes in order that the land may be used for various agricultural purposes. To maintain low water levels in these reclaimed areas, extensive canal and pumping systems have been installed to remove excess water. Conversion of an area from natural conditions to agricultural use increases pollutant loading of receiving waters from the use of fertilizer and pesticides. Disturbances of the land surface by removal of natural cover and modifications of natural drainage patterns reduce the detention time of storm water flow to the St. Johns River and the natural assimilative or purification processes of the original system. (Testimony of Sullivan, Cox, Petitioner's Exhibit 24) Water quality parameters that could potentially be influenced by the pumping activities of Respondent include turbidity, dissolved oxygen, biological oxygen demand (BOD) , specific conductance, chlorides, total phosphorus and total nitrogen. Available data concerning water quality in the upper St. Johns River include bimonthly water sampling by personnel of the Florida (came and Fresh Water Fish Commission from 1973 to 1976 at 24 stations, irregular sampling by DER personnel from 1975 to 1978 primarily in the Blue Cypress Lake region, and sampling in the summer of 1978 and in January, 1979 by DER and a consulting firm employed by Respondent. The collective data obtained show that the waters in the upper St. Johns River do not consistently meet state water quality standards in various respects and that the most serious deficiency is low dissolved oxygen concentrations. The data show a general downstream trend of increasing specific conductance with seasonal fluctuations due to dilution during the summer rainfall season. Conductivity increases are generally attributable to inputs of mineralized ground water, some of which occurs from irrigation wells. The specific conductance levels in the upper St. Johns regularly exceed the Class I standard of 500 micromhos per centimeter. Although Respondent has over 170 artesian wells under state permits, the wells are only used when irrigation water is necessary and are capped and controlled by valves at other times. Although specific conductance has been shown to increase beyond state standards in "Respondent's canals, primarily during the dry winter season, it is basically a ground water problem and is not considered by Petitioner and other state monitoring authorities to constitute a serious situation. Chloride levels generally increase in the area of Respondent's exterior canals during the summer, but they are almost always below the Class I water quality standard of 250 mgs per liter. Phosphorus concentrations increase somewhat as the river passes the confluence with the North Mormon Outside Canal, but the average total phosphorus concentration in the canal is essentially the same as that in the river upstream of the canal confluence. As to nitrogen concentrations, the data show that there is no pattern of increased concentrations arising from Respondent's canal discharges. Turbidity has not been shown to be a problem since Respondent discontinued pumping during dragline operations. BOD values have not been shown to be sufficiently high as to constitute a water quality problem. (Testimony of Cox, Shannon, Hulbert, Auth, Petitioner's Exhibits 8, 9, 11, 16, 18, 19, 24, 26, 27-29) It is generally agreed by water quality experts that low dissolved oxygen levels are natural to the upper St. Johns River, particularly during periods of high rainfall during the summer and fall. Agricultural activities in the St. Johns River basin contribute to oxygen depletion by the nutrient load that is pumped into the receiving waters after having remained in interior canals for varied periods of time during the dry season. Highly mineralized artesian well water which has migrated to canals, collected plant debris, fertilizer, and cattle waste all serve to depress oxygen values when discharged into the river system. Aquatic plants, such as hyacinths, tend to proliferate in stagnant canals during the dry season and are released into the river during pumping operations. They accumulate in the river lakes where spraying operations by the St. Johns River Water Management District cause decomposition of the plant material which also serves to reduce the oxygen supply. This, in turn, is detrimental to the fish habitat and has caused fish kills in extreme situations. Studies have shown that the population of fish in the river has decreased over the years due to the degradation of water quality and limited access to spawning and grazing areas. Less dissolved oxygen affects the food supply and growth of fish. However, Respondent's interior canals have been a plentiful source of fish over the years. Another cause of reduced oxygen levels in the upper St. Johns River is the natural loading of nutrients from accumulated detritus from adjacent marshes and wetlands. In particular, the trees and plant life in the area from Lake Washington to south of Lake Winder consist of a swamp forest which produces a larger amount of detrital material than grass marshlands. During the wet season of June through October, average dissolved oxygen levels in the upper St. Johns River range from 2.0 to 4.0 mgs per liter and can, at times, fall as low as 0.0. However, samples from lake areas in the upper St. Johns show average levels ranging from 4.9 mg/1 to 7.9. Although water samples showing dissolved oxygen values of zero were measured in Bulldozer Canal in 1978, a sample from the river upstream of the canal showed the same value. In January 1979, six locations were sampled along Bulldozer Canal and in Respondent's canals located behind the dike. No pumps were operating and the data did not indicate any appreciable water quality problem. Samplings in the North Mormon Outsider Canal consistently show dissolved oxygen concentrations of less than 2.0 mg/1. In most cases, the dissolved oxygen concentration in the canal was less than in the river upstream, and in some cases a drop in dissolved oxygen concentration in the river occurred as it passed the canal. Respondent's pumps normally operate during the rainy season after a two to four inch rainfall. There are some twenty-three potential periods for Pumping during the months July to October, but normally the pumps are operated for only about fourteen days a year. It is estimated that the pumps contribute less than one percent of the river content during such periods. Water samples taken from Respondent's exterior canals in October 1978, both before and after pumping, failed to reveal any significant change in dissolved oxygen levels. Insufficient data exists to show the effect of pumping on dissolved oxygen levels at the present time. The organic material discharged by pumping operations undoubtedly depresses oxygen values to some unknown extent, but seasonal monitoring is necessary to ascertain precise data in this regard. The Florida Game and Fresh Water Fish Commission studies showed that only at one time was there found to be a low dissolved oxygen level when the pumps were operating. Initially, at least, pumping serves to aerate the water to some degree with consequent increase in dissolved oxygen. Other ranching and agricultural operations along the upper St. Johns River, together with organic material flushed from adjacent lands, provide an unknown contribution to the depressed oxygen values of the upper St. Johns River. Temporary operating permits have been issued to a number of ranches and farms adjacent to the river which call for monitoring of water quality from structures and pump discharge for evaluation of the effects of the discharge upon the receiving waters. Respondent is one of several such sources in the upper St. Johns River who has declined to submit an application. Although the term "stormwater discharge" is not defined in Chapter 403 or DER rules, pumped discharges of water that has been dormant for a considerable period of time with accumulated plant debris, nutrients, and other wastes are not considered by DER, as a matter of policy, to be "stormwater discharge" within the meaning of Rule 17-4.248, F.A.C. (Testimony of Parks, Sullivan, Hulbert, Justesen, Cornwell, Shannon, Dahl, Mapes, Pate, Ross, Petitioner's Exhibits 6-7, 10-10A, 12-15, 20-24, 26, Respondent's Exhibit 2) The Deseret Ranch contains pine flatwoods, and numerous cypress domes, strands, and marshes. Approximately 50 percent of the ranch area has been left in a natural system and therefore is one of the most productive areas in Florida for the propagation of wildlife. The ranch creates an excellent environment for such productivity by a mixing of natural and developed environment. A wide variety of animal, bird, aquatic and plant life are found throughout the ranch property. Approximately 30,000 deer are estimated to inhabit the ranch area. (Testimony of Cornwell, Dahl, Sullivan, Mapes, Pate, Justesen, Shannon, Respondent's Exhibits 7-10, Petitioner's Exhibit 26) Three public witnesses testified at the hearing. One witness who operates Camp Holly, a fish camp on the St. Johns River, attested to the importance of the river system for recreational and fishing purposes, and expressed concern as to fish kills and the adverse effects on fishing from recent high water. Another witness who is a professional fisherman expressed similar concerns about recent flooding and consequent detrimental effects on fishing. The third witness testified as to his opinion that Petitioner is a responsible agency that is cautious in development and analysis of data in carrying out its statutory responsibilities. (Testimony of Cataldo, Hunter, Nicolay, Hearing Officer Exhibit 1) At the hearing, Petitioner submitted in evidence a summary of its costs of investigating the activities of Deseret in preparation for this administrative proceeding in the amount of $632.94. However, agency records supporting the expenditures were net made available to Respondent and, consequently, Respondent had no opportunity to determine the accuracy of such costs. It is therefore found that Petitioner's costs are not supported by competent evidence. (Testimony of Kozlev, Petitioner's Exhibit 30)
Recommendation That Petitioner issue a final order for corrective action requiring Respondent to submit an application for an operation permit covering its Pumping stations within sixty (60) days from the date of such final order, under the authority of Section 403.121(2)(b), Florida Statutes. DONE and ENTERED this 29th day of June, 1979, in Tallahassee, Florida. THOMAS C. OLDHAM Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: Segundo Fernandez, Esquire Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32301 Philip N. Watson, Esquire 17th Floor CNA Building Post Office Box 231 Orlando, Florida 32802
The Issue At issue in this proceeding is whether certain development orders issued by Monroe County to Homeowners, Ocean Reef Club and Key Largo Foundation (Applicants) for a project that would ultimately result in the construction of a flushing canal in the Ocean Reef Club development on north Key Largo are consistent with the Monroe County comprehensive plan and land development regulations.
Findings Of Fact The parties Petitioner, Department of Community Affairs (Department), is the state land planning agency charged with the responsibility of administering and enforcing the provisions of Chapter 380, Florida Statutes, and all rules promulgated thereunder. Section 380.031(18) and 380.032(1), Florida Statues. Respondent, Monroe County, is a local government within the Florida Keys area of Critical State Concern designated by Section 380.0552, Florida Statutes, and is responsible for the implementation of, and the issuance of development orders that are consistent with, the Monroe County comprehensive plan and land development regulations, as approved and adopted in Chapters 9J-14 and 28-20, Florida Administrative Code. Respondents, Homeowners, Ocean Reef Club and Key Largo Foundation (Applicants), are the owners of real property in the Ocean Reef and Harbour Course subdivisions, Key Largo, Monroe County, Florida; properties that are located within that part of Monroe County designated as an area of Critical State Concern. The Applicants have sought the development orders (permits) at issue in this proceeding incident to their 8-year quest to achieve regulatory approval to initiate a project that would restore the water quality of Dispatch Creek to Class III water standards. Background The site of the proposed project, the present terminus of Dispatch Creek, is located within the Ocean Reef Club development on north Key Largo. That development is bordered on the east by the Atlantic Ocean and John Pennekamp Coral Reef State Park, on the north by Biscayne National Park, and on the west by the Biscayne Bay/Card Sound Aquatic Preserve. Currently, the development at the Ocean Reef Club includes a number of canals and boat basins, an airstrip; three 18-hole golf courses, a 174-slip marina capable of docking vessels in excess of 100 feet, and extensive residential and-commercial uses. In the mid-1970's, Dispatch Creek was a natural, albeit shallow, waterbody that was able to maintain, through natural tidal actions, water quality standards. However, in 1977 Ocean Reef Club, under permits issued by the Department of Environmental Regulation (DER) in the mid-1970's excavated the creek to new depths to create a navigable channel and extended its length beyond its natural contours. When completed, the creek was converted from a natural waterbody, that could maintain water quality standards through natural tidal action, into a dead-end system, that could not maintain such standards through natural processes along the course of its extended terminus. 1/ Over time, the water quality of Dispatch Creek from its approximate midpoint to its dead-end terminus has steadily declined. The cause of this decline is reasonably attributable to the biochemical oxygen demand placed on the creek by the continuous input of detritus from mangroves, which boarder the creek on the east and to a lesser extent on the west, and the length of the channel, coupled with the dead-end basin surrounding an island, which has assured the continued decline of water quality due to poor water circulation. As a consequence, the creek, as a habitat, has been altered from an oxygen rich system supportive of aerobic life to an oxygen poor system supportive of anaerobic life. This has evidenced itself through algae blooms, the intermittent emission of hydrogen sulfide gas, and a change in water clarity to that of a "coffee au lait" color. Currently, a significant portion of Dispatch Creek is devoid of aerobic life, and unless its condition is reversed it could not support aerobic marine organisms in the future. /2 Today, conditions in portions of Dispatch Creek fail to meet DER standards. DER regulations establish the dissolved oxygen (DO) standard to be not less than five milligrams per liter in a 24-hour period, and never less that four milligrams per liter. The DO Standard is currently violated in Dispatch Creek beginning at the mid point of the creek to its terminus. At its terminus, DO levels are chronically below one milligram per liter. Additionally, DER nutrient standards prohibit the alteration of nutrient concentrations of a body of water so as to cause an imbalance in natural populations of aquatic flora or fauna. Here, the high nutrient levels of Dispatch Creek resulting from the mangrove detritus and lack of circulation has, as heretofore noted, caused the natural aquatic flora and fauna to be replaced by anaerobic life. As a consequence of the changes in water quality that had occurred in Dispatch Creeks the Applicants have, over the course of the past eight years, sought approval from various regulatory authorities, including DER and Monroe County, of a plan to improve the water quality in Dispatch Creek. Such approval has been garnered from DER, and Monroe County's approval is at issue in this proceeding. The DER permit On February 7, 1986, the Applicants received approval from DER for a permit to construct a flushing canal from the terminus of Dispatch Creek to the Atlantic Ocean. That permit authorized the Applicants: To construct a "flushing canal" between the dead end of Dispatch Creek Waterway and the Atlantic Ocean by: excavating approximately 13,000 cubic yards to create a canal approximately 3000 ft. long by 20 ft. wide with a bottom elevation of 6 ft. Mean Low Water; placing three 6 ft. by 6 ft. by 380 ft. box culverts in the canal alignment at the basin end; placing tidal actuated flap gates on the basin end of the culverts in a manner which will allow the basin to intake water from the flushing canal on incoming tides while preventing discharge into the flushing canal on outgoing tides; placing 5 pilings across the canal at it's juncture with the Atlantic Ocean to prevent navigation in the canal; and creating a 12,900 sq. ft. mangrove mitigation area by excavating approximately 1,450 cu. yds. from a spoil area to create an area with an elevation of +1.4 Ft. NGVD which will be planted with red mangroves. DER was, in evaluating the application pending before it, charged with the duty to apply, enter alia, the criteria of the 1984 Warren Henderson Wetlands Act, Section 403.918(2), Florida Statutes, as well as Chapters 17-3 and 17-4, Florida Administrative Code. Based on DER's decision to issue its permit, it is reasonable to conclude that DER, within its permitting jurisdiction, concluded that construction of the proposed circulation channel would not lower ambient water quality, and would not significantly degrade Outstanding Florida Waters (OFW), including those of John Pennekamp Coral Reef State Park. As heretofore noted, the Department does not contend that the subject project will violate any specific criteria within DER's Chapter 403, Florida Statutes, permitting jurisdiction. The Monroe County permits On July 19, 1989, Monroe County issued to the Applicants the building permit, excavation permit, and land clearing permit (development orders), each numbered 8930001680, at issue in these proceedings. As permitted, the project proposed by the Applicants is designed to improve the water quality of Dispatch Creek, particularly in the vicinity of its dead-end terminus, and consists of two phases. Phase I contemplates the installation and operation of an aeration system for at least one year, which will extend from the dead-end terminus of Dispatch Creek toward its midpoint, as well as a water quality monitoring program, until such time as the water quality of the entire creek comports with that of adjacent Class III waters. Should the Applicants be successful in Phase I, they would then be authorized to proceed with Phase II, which would allow the construction of the flushing canal contemplated by the DER permit. As approved by Monroe County, Phase I would consist of the installation of an aeration system around the island, located at the terminus of Dispatch Creek, and in the canal, as well as the suction dredging of loose sediments in the upper reaches of Dispatch Creek. The system would consist of fifteen microporus diffuser/aerators producing approximately 5 CFM per unit, and would be anchored near the bottom to maximize the introduction of dissolved oxygen into the anaerobic water and to optimize water movement. Operation of such system, coupled with the introduction of aerobic bacteria, will shortly reduce the concentration of hydrogen sulfide dissolved in the water, reduce the concentration of ionized sulfides in solution, retard the growth and propagation of anaerobics in the benthic layer, and activate the growth and propagation of aerobics in all strata. As a consequence, over time, water clarity will improve, which will allow the penetration of sunlight into the benthos. This illumination will spawn the growth of photosynthetic bacteria, as well as phytoplankton, which will aid in the continued aerobic cleansing of the water and bottom sediments. In all, installation and operation of the aeration system, which has proven successful at other locations, should, over time, restore the waters of Dispatch Creek to Class III standards, without any adverse impacts to adjacent waters or the park. While operation of the aeration system will, over time, restore the waters of Dispatch Creek to Class III standards, the perpetual maintenance of such system would be energy intensive and expensive. for this reason, the Applicants have proposed the Phase II canal, which would maintain, through natural tidal processes, water quality standards within the creek. The canal permitted by Monroe County under Phase II is consistent in all respects with the DER permit except the Monroe County permits require that the canal be sited 20 feet landward of the alignment permitted-by DER into previously scarified uplands. So aligned, the canal would begin at the landward terminus of Dispatch Creeks run easterly within the rear lot lines of at least 15 lots within Harbour Course South subdivision, a platted subdivision, pass through a fringe of red and black mangroves fronting the ocean, and terminate approximately 100 feet seaward of the mean high water line (MHWL) within the boundaries of John Pennekamp State Park. At the point where the canal would join with Dispatch Creek, three 6 foot by 6 foot by 380 foot box culverts would!! be installed with one-way tidal activated flap gates, which would permit waters from the Atlantic to enter Dispatch Creek on a rising tide, but would preclude an exchange of waters from Dispatch Creek on a falling tide. Through such design, sufficient mix and force will be exerted within the waters of Dispatch Creek to maintain Class III water quality standards by natural circulation, and to return the habitat offered by the creek to an oxygen rich system capable of supporting aerobic life. While construction of the canal would be beneficial, by restoring the waters: of Dispatch Creek to Class III standards, it is not without cost to the environment. As aligned, the canal, although predominately within previously cleared or scarified uplands, will require excavation through several types of habitat that are either undisturbed or reestablished, including undisturbed buttonwood association, salt marsh, hardwood hammock, transitional habitat, mangroves and submerged lands, and will require the removal of approximately one-tenth of an acre of red and black mangroves, a species of special concern, as well as a number of mahogany trees, twisted air plants, prickly pear cactus and barpar cactus, which are threatened species. Its construction would likewise sever the uplands from the adjacent transitional and wetland areas that traditionally buffer, insulate and protect nearshore waters from runoff from upland areas. Construction of the canal should not, however, adversely impact any threatened or endangered animal species since the proposed alignment is currently a poor habitat for threatened or endangered species, such as the Key Largo woodrat, that may reside in the area, and there is currently no threatened or endangered animal species inhabiting the site. This is not, however, to suggest that the site would not support such species in the future, provided that existing habitat is permitted to continue its progress towards reestablishment. To mitigate the loss of habitat types, the Monroe County permit provides: The agreed mitigation for the loss of all rare and/or endangered habitat types located within the area impacted by the dredging shall be carried out prior to initiation of the dredge project. This shall be based on existing vegetation surveys and an assessment of species currently located within the confines of the project area. Prior to initiation of any dredge activity, a formal inventory of the project site shall be made and a one-to-one replacement program (baked on species rarity or level of endangerment) shall be established and agreed upon. Such an agreement will include defining an appropriate site and the number and type of trees, as well as a maintenance plan for the agreed upon area. Additionally, the DER permit addresses the loss of mangroves, by requiring the establishment of a 12,900 square foot mangrove mitigation area. Under the facts of this case, the mitigation proposed would, assuming the propriety of such development under the Monroe County comprehensive plan and land development regulations, address the loss of habitat types occasioned by development of the proposed canal. To assure that water quality within Dispatch Creek comports with Class III standards before the canal is dug, and that the creek maintains such standards following construction, the Monroe County permits establish a water quality monitoring program. During the first year, samples will be taken and tests performed on a weekly basis for pH, DO, turbidity, Secchi Disc, temperature, and sulfite; on a biweekly basis for total bacterial count and composition; on a monthly basis for total nitrogen and phosphate; on a quarterly basis for: macro-invertebrates and macrophytes; and on a semiannual basis for heavy metals and pesticides. During the second yearn biweekly testing will be done for DO, temperature, hydrogen sulfide, turbidity and Secchi Disc; quarterly testing for total nitrogen and phosphate, macro- invertebrates, and macrophytes; and, annual testing for heavy metals and pesticides. After the second year, monthly tests will be done for DO, temperature, hydrogen sulfide, turbidity, and Secci Disc; quarterly tests for total nitrogen and phosphate, as well as macro- invertebrates; and annual tests for heavy metals and pesticides. Should the water quality of the creek fail to maintain Class III standards following construction of the canal, the Monroe County permit contains the following special condition: The water quality monitoring program shall be maintained to assess the quality of water in Dispatch Creek subsequent to the dredge project completion. If at any time the water quality fails to meet the standards established by this permit, the one way flushing valve shall be closed by the applicant, and in applicant's failure to do so, by the County. The applicant assumes all costs of closing said valve, whether closed by applicant or the County. Aeration, aid/or other means at the discretion of the applicant, shall be utilized to reestablish quality. The valve shall not be reopened until the water quality standard is met. The purpose of the foregoing condition, as well as the requirement that the waters of Dispatch Creek meet Class III standards before the canal can be dug, is to assure that operation of the canal will not lower ambient water quality within the Outstanding Florida Waters of John Pennekamp Coral Reef State Park, and thereby protect the park from any adverse impacts associated with the improved circulation of the creek. John Pennekamp Coral Reef State Park is a unique and world-renowned resource, attracting millions of visitors each year. At least fifty percent of the activities engaged in by visitors to the park are water-related, including fishing, observational diving and boating. Any degradation of the ambient quality of those waters would be contrary to DER's rules promulgated under Chapter 403, Florida Statutes, and could adversely impact the natural biota of the park, with a corresponding reduction in the number of visitors to the park and revenues contributed by those visitors to the local economy. Here, the proof demonstrates, consistent with DER's prior permitting, that the subject project, built as proposed, would not lower the ambient water quality of adjacent waters through the discharge of pollutants, and therefore would not adversely affect the park. If anything, the Monroe County permits, with one exception to be discussed infra, offer stronger assurances than the DER permit that adverse impacts will not occur. Notably, under such permits the Applicants must first bring the water quality of the Creek up to Class III standards before the canal can be dug. If the Applicants are ssuccessful at that phase of the project, there will not be excessive nutrient loading within the creek, and the detritus that may thereafter be removed from the creek by improved circulation would not adversely affect water quality or the park. Currently, there are no heavy metals in the sediments or water column of the creek which are at levels above those found naturally, and no pesticides or toxic organics. In sum, there is no basis to conclude, based on the record, that-there is any substance within the waters or sediments of Dispatch Creek that would, upon the waters achieving Class III standards, lower the amient quality of adjacent waters or adversely impact the park. /4 Ostensibly, as an added measure of protection to adjacent waters, the Monroe County permits contain a condition, with which the Applicants concur, that should the waters of Dispatch Creek fail to maintain Class III standards following construction of the canal, the one-way tidal actuated flap gates will be closed. That condition, a noted supra, provides: If at any time the water quality [of the creek] fails to meet the standards established by this permit, the one way flushing valve shall be closed by the applicant, and in the applicant's failure to do so, by the County. The applicant assumes all costs of closing by applicant or the County. Aeration, and/or other means at the discretion of the applicant, shall be utilized to reestablish quality. The valve shall not be reopened until the water quality standards is met. The foregoing condition presumes to address the possibility that should the proposed project fail to function as expected by the experts, as did the current Dispatch Creek fail to function as expected, that such failure will no result in an adverse impact to adjacent waters or the park. In this regard, it is worthy of note that DER's approval of the extension of Dispatch Creek to create a 7,200 foot dead-end canal in the mid-flush the pollutants from the canal into the park. The Applicants presented persuasive testimony, however, through their 1970's was, based on current knowledge, an error, and that today no dead-end system would be approved in excess of soon feet. Monroe County's condition, while preventing the discharge of degraded waters from Dispatch Creek to the park upon closure of the one way flushing valves, fails to address, however, the adverse impacts that could result from its closure. By closure of the valves, the flushing canal would be instantly converted into a 3,000-foot dead-end canal, and would suffer the same water quality problems as similar systems, with probable adverse effects to adjacent waters and the park. Accordingly, so as not to compound the existing error occasion by the extension of Dispatch Creek in the mid-1970's, prudence would dictate a proviso that, if the valves are shut, appropriate monitoring will occur within the waters of the flushing canal to detect any significant degradation of water quality, and that should such degradation pose a threat to adjacent waters or the park, that the Applicants be required, at their expense, to restore promptly the water quality within the flushing canal to Class III standards or restore the area to its present condition. Consistency of the proposed project with the Monroe County comprehensive plan and land development regulations Lack of plat approval As heretofore noted, the proposed canal would begin at the landward terminus of Dispatch Creek and run easterly within the rear lot lines of at least 15 lots in Harbour Course South subdivision, a platted subdivision, before it passed through fringing mangroves and terminated in the Atlantic Ocean. Currently, the final recorded plats of Harbour Course South subdivision do not reflect the proposed canal, as mandated by Section 177.091(15), Florida Statutes, and the Applicants have not sought to amend the plat to include the proposed canal. Pertinent to this case, the Monroe County Code (MCC), the land development regulations, /5 provides: Sec. 9.5-1. Purpose. It is the purpose of this chapter, the Land Development Regulations, to establish the standards, regulations, and procedures for review and approval of all proposed development of property in unincorporated Monroe County, and to provide a development review process what will be comprehensive, consistent and efficient in the implementation of the goals, policies and standards of the comprehensive plan . . . Sec. 9.5-2. Applicability. General Applicability: The provisions of this chapter shall apply to all land in unincorporated Monroe County. All development of whatever type and character, whether permitted as of right or as a conditional use, shall comply with the development standards and the environmental design criteria set forth in article VII hereof. No development shall be undertaken without prior approval and issuance of a development permit under the provisions of this chapter and other applicable laws and regulations. Sec. 9.5-81. Plat approval and recording required. * * * No building permit, 6/ except for single family detached dwellings and accessory uses thereto, shall be issued for the construction of any building, structure or improvement unless a final plat has been approved in accordance with the provisions of this division and recorded for the lot on which the construction is proposed. * * * (e) If a plat has been previously approved and recorded, technical or minor changes to the plat may be approved by the director of planning. All other changes shall be considered in accordance with the provisions of this Division. Sec. 9.5-94. Amendment of a recorded final plat. An amendment of a recorded final plat or portion thereof shall be accomplished in the same manner as for approval of the plat. Here, the subject permits were issued contrary to the foregoing provisions of the MCC because there was no final plat of record approving the canal as to each affected lot. While the Applicants offered proof, if credited, that the existing plat could be amended to include the canal as a "minor change" upon approval of the Director of Planning, it is noteworthy that no such approval has been obtained. More importantly, it is found that a change in the existing plat to include the canal would not constitute a "technical or minor change," and that formal amendment of the plat would be required. 7/ The provision of the MCC dealing with plat approval, provide a comprehensive scheme to assure, among other things, than the proposed plat is consistent with the purposes, goals and objectives of the comprehensive plan, the development regulations, and state laws, as well as affording an opportunity for public input. Of import here, the MCCs provide: Sec. 9.5-82. General Standards for Plat Approval. No preliminary or final plat shall be approved unless the plat is consistant with the purposes, goals and objectives of this plan, this chapter, applicable provisions of state law, the provisions governing the development of land set forth in article VII, and the procedures set forth in this article. Sec. 9.5-83. Preliminary Plat Approval. Generally. All applicants for approval of a plat involving five (5) or more lots shall submit a preliminary plat for approval in accordance with the provisions of this section. Application. An application for preliminary approval shall be submitted to the development review coordinator in accordance with the provisions of this section, accompanied by a nonrefundable fee as established from time to time by the board of county commissioners. The application shall contain the information required on a form provided by the director of planning. Staff Review. After a determination that the application for preliminary plat approval is complete under the provisions of section 9.5-44, the development review coordinator shall submit the application to the development review committee, which shall prepare a recommendation and report for the commission. Public Hearing and Action by the Planning Commission. The planning commission shall conduct a public hearing on an application for preliminary plat approval of a subdivision involving five (5) or more lots, in accordance with the requirements of sections 9.5-46 and 9.5-47. The commission shall review such applications, the recommendation of the development review committee, and the testimony at the public hearing, and shall recommend granting preliminary plat approval, granting approval subject to specified conditions, or denying the application at its next meeting following submittal of the report and recommendation of the development review committee. Effect of Approval of Preliminary Plat. Approval of a preliminary plat shall not constitute approval of a final plat or permission to proceed with development. Such approval shall constitute only authorization to proceed with the preparation of such documents as are required by the director of planning for a final plat. Sec. 9.5-84. Final Plat Approval. Generally. All applicants for approval of a plat shall submit a final plat for approval in accordance With the provisions of this section. Application. It shall be the responsibility of the developer to complete, have in final form, and submit to the development review coordinator for final processing the final plat, along with all final construction plans, required documents, exhibits, legal instruments to guarantee performance, certificates properly executed by all required agencies and parties as required in this article, and the recording fee, and any other documents or information as are required by the director of planning. After receipt of a complete application for final plat approval, as determined in accordance with section 9.5-44, development review coordinator shall submit the application and accompanying documents to the development review committee. Review and action by Development Review Committee. The development review committee shall review all applications for final plat approval. b. For a final plat for subdivision involving five (5) or more lots, if the plat conforms to the approved preliminary plate and the substantive and procedural requirements of this chapter, at its next regular meeting or as soon as practical after receipt of a complete application, the development reviews committee shall recommend to the planning commission approval of the final plat or approval with conditions. If the committee finds that the plant does not substantially conform to the approved preliminary plat or the substantive and procedural requirements of these regulations, the committee shall recommend denial, specifying the area(s) of nonconformity. Review and Action by the Planning Commission. The planning commission shall review all applications far final plat approval involving five (5) or more lots and the recommendation of the development review committee. If the commission finds that the final plat conforms to the approved preliminary plat and the substantive and procedural requirements of this chapter, the commission shall recommend to the board of county commissioners approval of the final plat, or approval with specified conditions, and shall submit a report and written findings in accordance with section 9.5-47. Public Hearing by the Board of Country Commissioners. The board off county commissioners shall conduct a public hearing on all applications for final plat approval involving five (5) or more lots in accordance with the procedures of section 9.5-46C. Action by the Board of County Commissioners. For proposed subdivisions involving five (5) or more lots the board of county commissioners shall review the application, the recommendations of the development review committee and the planning commission, and the testimony at the public hearing, and shall grant final plat approval, grant approval subject to specified conditions, or deny the application, in accordance with the provisions of section 9.5-47. Sec. 9.5-90.Maintenance of Private Improvements. If any plat of subdivision contains streets, easements, or other improvements to be retained for private use, the final plat for recordation shall indicate to the satisfaction of the director of planning and the county attorney the method or entity by which maintenance of the private improvements shall be performed. As a consequence of Monroe County's failure to comply with the provisions of its regulations which require final plat approval before a building permit may be issued, there has been no review by the Development Review Committee, no public hearing conducted by the Planning Commission, no recommendation of the Planning Commission, and no public hearing before the County Commissioners on the propriety of amending the subject plat to permit the proposed construction, or a resolution, through the plat approval process, as to whether the proposed canal is consistent with, inter alia, the purposes, goals, and objectives of the Monroe County comprehensive plan, as mandated by section 9.5-82(a), MCC. As importantly, where, as here, the proposed canal is to be retained for private use, there is no indication on the recorded plat, 4s required by MCC 9.5-90, of the method or entity by which maintenance of the canal shall be performed. Notably, the property through which the canal will be constructed is not owned by any of the Applicants but, rather, by Driscoll Properties , with whom the Applicants state they have an agreement to permit construction. 8/ Open space requirements and environmental design criteria Pertinent to this case, the MCC further provides: Sec. 9.5-3. Rules of construction. In the construction of the language of this chapter, the rules set out in this section shall be observed unless such construction would be inconsistent with the manifest intent of the board of commissioners as expressed in the Monroe County Comprehensive Plan or an element or portion thereof, adopted pursuant to chapters 163 and 380, Florida Statutes (1985). The rules of construction and definitions set out herein shall not be applied to any section of these regulations which shall contain any express provisions excluding such construction, or where the subject matter or context of such section is repugnant thereto. (a) Generally: All provisions, term , phrases and expressions contained in this chapter shall be liberally construed in order that the true intent and meaning of the board of county commissioners may be fully carried out. Terms used in this chapter, unless otherwise specially provided, shall have the meanings prescribed by the statutes of this state for the same terms. In the interpretation and application of any provision of this chapter, it shall be held to be the minimum requirement adopted for the promotion of the public health, safety, comfort, convenience and general welfare. Where any provision of this chapter imposes greater restrictions upon the subject matter than a general provision imposed by the Monroe County Code or another provision of this chapter, the provision imposing the greater restriction or regulation shall be deemed to be controlling . . (Emphasis added) Sec. 9-804 (MCLDR) Open space requirements. No land shall be developed, used or occupied such that the amount of open space on the parcel proposed for development is less than the following ratios, nor shall open space be cleared or otherwise disturbed including ground cover, understory, mid-story, and canopy vegetation. All such required areas shall be maintained in their natural condition. The amount of open space required on any parcel for development shall be determined according to each land type and no development activity within any individual land type shall exceed the open space ratio for that land type. Land Type on Existing Open Space Conditions Map Ratio Open Waters 1.00 Mangrove and Freshwater 1.00 Wetlands Salt Marsh and Buttonwood .80 Associations .85 High Hammock (High Quality) .80 High Hammock (Moderate Quality) .60 High Hammock (Low Quality) . 4 Low Hammock (High Quality) .80 Low Hammock (Moderate Quality) .60 Low Hammock (Low Quality) . 4 Palm Hammock .90 Cactus Hammock .90 Pinelands (High Quality) .80 Pinelands (Low Quality) .60 Beach Berm .90 Disturbed . 2 Disturbed with Hammock . 2 Disturbed with Salt Marsh and Buttonwood . 2 Disturbed Beach/Berm . 2 Disturbed with Exotics . 2 Disturbed with Slash Pines . 2 Offshore Islands . 9 (Emphasis added) Sec. 9.5-345. Environmental design criteria. No land, as designated on the existing conditions map and analyzed in accordance with the standards in sections 9.5-339 and 9.5-340, shall be developed, used ~re occupied except in accordance with the following criteria unless the county biologist recommends an authorized deviation from the following criteria in order to better serve the purpose and objectives of the plan and the director of planning or planning commission approves the recommendation as a minor or major conditional use. No recommendation for an authorized deviation from these environmental design criteria shall be made unless the county biologist makes written findings of fact and conclusions of biological opinion which substantiate the need and/or benefits to be derived from the authorized deviation. (m) Mangroves and Submerged Lands: Except as provided in subsection (3), only piers, docks, utility pilings and walkways shall be permitted on submerged lands and mangroves; All structures on any submerged lands and mangroves shall be designed, located and constructed such that: All structures shall be constructed on pilings or other supports; Bulkheads and seawall shall be permitted only to stabilize disturbed shorelines or to replace deteriorated existing bulkheads and seawalls; No structure shall be located on submerged land which is vegetated with sea grasses except as is necessary to reach waters at least four (4) feet below mean low level for docking facilities. (Emphasis added) From the foregoing regulations it is apparent that Monroe County has accorded mangroves the highest of protections. The regulations mandate a 100 percent open space ratio in such areas, and preclude any clearing or other disturbance of such areas. The only exception provided by the regulators, absent approval of an application for a minor or major conditional use, is for the construction of piers, docks, utility pilings and walkways, and then only when such structures are constructed on pilings or other supports to minimize their impact. Here, the proposed development, "permitted as of right" and not as a minor or major conditional use, fails to comply with the Monroe County land development regulations because it will result in the elimination of an existing mangrove community. In addition to the environmental design criteria established for mangroves by section 9.5-345, discussed supra, that section likewise establishes-specific performance standards for the development of any parcel (lot) depending on the habitat type, and where mixed habitat is encountered, requires that development occur on the least sensitive portions of the parcel. Here, while the Applicants did address the habitat types encountered along the canal alignment, the record fails to address the habitat types encountered on each of the platted lots through which the canal will run. Consequently, the Applicants failed to demonstrate that development of those lots, by construction of a canal within their rear boundary, would be consistent with the open space ratios mandated by section 9-804, MCLDR, or the environmental design criteria mandated by section 9.5-345, MCC. C. The Monroe County land development regulations further and implement the Monroe County comprehensive plan. The foregoing land development regulations were adopted by Monroe County, as well as approved by the Department and adopted by the Administrations Commission, to further and implement the standards, objectives and policies of the Monroe County comprehensive plan. That plan evidences a strong commitment to the protection, maintenance, and improvement of the Florida Keys environment. In this regard, the comprehensive plan provides: Sec. 2-104. Nearshore Waters The Florida Keys are dependent nearshore water quality for their environmental and economic integrity. The heart of the Florida Keys economy, the means by which Monroe County exists as a civil and social institution, is based on its unique, oceanic character. If nearshore water quality is not maintained, then the quality of life and the economy of Monroe County will be directly and immediately impacted. OBJECTIVES 1. To protect, maintain and, where appropriate, improve the quality of nearshore waters in Monroe County. POLICIES 1. To prohibit land uses that directly or indirectly degrade nearshore water quality. To prohibit the development of water dependent facilities, including marinas, at locations that would involve significant of the biological character of submerged lands. To limit the location of water- dependent facilities at locations that will not have a significant adverse impact on offshore resources of particular importance. For the purposes of this policy, offshore resources of particular importance shall mean hard coral bottoms, habitats of state or federal threatened and endangered species, shallow water areas with natural marine communities with depths at mean low tide of legs than four (4) feet, and all designated Aquatic Preserves under Ch. 258.39 et seq. the Florida Statutes. To limit the location of docking facilities to areas which have adequate circulation and tidal flushing. To protect wetland and transitional areas that serve to buffer, insulate and protect nearshore waters from run- off from upland areas. To prohibit the discharge of any pollutant directly or indirectly into nearshore waters. For the purposes of this policy, indirect discharge into nearshore waters shall include surface runoff, surface spreading or well injection of any effluent that does not meet state or federal standards for point and non-point discharges. To monitor nearshore water quality to ensure that growth and envelopment is not degrading nearshore water quality. To encourage the rehabilitation of canals and other water bodies where water quality has deteriorated. Sec. 2-105. Wetlands and Associated Systems Wetlands are an essential element of the Florida Keys and they play several vital roles. Wetlands serve as principal habitats for a wide variety of plants and animals, including juvenile forms of several commercially-exploited species of seafood. In addition, wetland plants play an important role in pollution control through nutrient uptake, and in primary production control through nutrient uptake, and in primary production for food webs. Wetland plants also serve as important natural buffers to the onslaught of storm-driven winds and water. OBJECTIVE To protect and maintain the functional integrity of wetlands and associated transitional areas within the Florida Keys. POLICIES To prohibit the destruction, disturbance or modification of any wetland or associated transition area, except where it can be demonstrated that the functional integrity of a wetland or associated transitional area will not be significantly adversely affected by such disturbance or modification. Marine Resources The great value attributed to Monroe County's marine resources is due to their crucial role in the local economy, and in providing a wide range of natural amenities and services. Health and integrity of the marine system is a fundamental prerequisite if these resources are to continue to provide social, economic, and environmental benefits that we have at times taken for granted. Mangroves, seagrasses, and coral reefs, all of which are susceptible to pollution and dredging, are extremely important in providing food and shelter for myriad forms of marine life, providing storm protection, and maintaining water quality. If uses and activities such as dredge and fill, destruction of natural vegetation, use of pesticides and fertilizers, improper sewage and solid waste disposal continue indiscriminately and uncontrolled; the ability of the marine system to function effectively will deteriorate, thereby resulting in the loss of many natural services and socioeconomic benefits to society. Therefore, it is imperative that such uses and activities be carefully regulated so as to insure conservation and protection of resources and long-term maintenance of their productivity. Marine Resources Management Policies Recognizing the crucial role that the marine environment plays in the economy, the protection, conservation, and management of marine resources will be viewed as an issue requiring the County's utmost attention. In an effort to protect and conserve marine resources, emphasis will be placed on protecting the entire marine ecosystem. To this end, maintenance of water quality; protection of marine flora and fauna, including shoreline vegetation; and preservation of coral reefs will be regarded as being absolutely essential to maintaining the integrity of the marine system. * * * Land and water activities which are incompatible with the preservation of marine resources because of their potential adverse effects will be prohibited, restricted, or carefully regulated depending upon the nature of activity and the extent of potential impact. * * * 3.2. Dredging and/or filling associated with maintenance or necessary water- dependent public projects shall be minimized and carefully managed to prevent unnecessary adverse environmental impact. The County will develop and enforce stringent development regulations to minimize water pollution from point and non-point sources in an effort to: improve and maintain quality of coastal waters. . Marine grass beds, mangrove communities, and associated shoreline vegetation will be preserved to the fullest extent possible. Removal of vegetation or modification of natural patters of tidal flow and nutrient input, cycling and export should be considered only in the case of overriding public interest. The County will encourage creation and restoration of marine grass beds, and mangrove communities in areas which could support such growth and could potentially enhance the environmental quality. As far as possible, natural patterns of gradual and dispersed runoff will be maintained. Land and water activity in the vicinity of stress areas (coral, grass bed, and inshore water quality) as identified and illustrated in the Florida Keys Coastal Zone Management Study and as may be discovered during any future study will be carefully controlled and regulated in an effort to arrest further deterioration. Research and study directed toward alleviating the stresses and restoring their condition to natural healthy state will be encouraged arid supported. Marine Resources Areas of Particular Concern Site-specific Designations Lignumvitae Key Aquatic Preserve. * * * Management Policies: B. Development activity on Upper and Lower Matecumbe Keys, including dredging and filling will be prohibited so as not to degrade the waters of the Preserve. * * * 3. John Pennekamp Coral Reef State Park and Key Largo Coral Reef Marine Sanctuary. Management Policies: * * * B. Development activity on Key Largo, including dredging and filling, urban runoff water, and the use of septic tanks will be controlled and regulated in order to minimize stresses which result in cater quality deterioration. Generic Designations All marine grass beds in waters off the Florida Keys. All patch reef coral and other reef formations found in the surrounding waters off the Keys. All shore-fringing mangrove and associated vegetation extending up to 50 feet laterally upland from the landward limit of the shoreline mangrove. Management Policies A. These biotic communities will be preserved to the fullest extent possible. Natural Vegetative Resources The diverse and often unique plant associations of the Florida Keys are a vital element of Monroe County's natural system and economic structure. The natural functions performed by these plant communities with1 regard to marine resources, unique and endangered wildlife, shoreline stabilization, filtering of urban runoff and scenic value make them vital elements in maintainance of the urban structure and attractions for the tourist base of Monroe County's economy. Natural Vegetation Management Policies In recognizing the need to preserve as much natural vegetation as possible, the County will direct its land use and development regulations; to minimize destruction of natural vegetation and modification of landscape. Guidelines and performance standards designed to protect natural vegetation from development will be developed and enforced. Clearing of native vegetation for development will be controlled. 3. Regulations controlling development in areas characterized primarily by wetland vegetative species such as mangrove and associated vegetation will emphasize preservation of natural vegetation to the maximum degree possible. 8. The existing County ordinances designed to protect and conserve natural vegetation will be strictly interpreted, rigidly enforced, and/or amended when necessary. Consistent with the Monroe County comprehensive plan, the Monroe County land development regulations further the standards, policies and objectives of the plan to protect, maintain and improve the Florida Keys environment. In this regard, the provisions of the regulations requiring final plat approval before a development order may issued provide assurance that the proposed activity will be -consistent with the comprehensive plan, the land development regulations, and applicable provisions of state law. Likewise, pertinent to this case, the provisions of section 9-864, MCLDR, regarding open space requirements, and section 9.5-345, regarding environmental design criteria, further the plan's policy to minimize the destruction of natural vegetation and modification of landscape, and to preserve to the maximum degree possible areas characterized primarily by wetland vegetation, such as mangroves and associated vegetation, and to permit such removal only in cases of overriding public interest. Here, while it cannot be concluded, as advocated by the Department, that the Monroe County comprehensive plan and land development regulations prohibit, under any circumstances, construction of the subject canal, it must be concluded, at this stage, that construction of the canal has not been demonstrated to be consistent with the plan and regulations. To be consistent, the Applicants would have to secure final plat approval for the canal, through the plat amendment process; a minor or major conditional use approval, as appropriate, as mandated by, inter alia, section 9 .5-345, MCC, for destruction of the mangrove community; and demonstrate that excavation of the canal on each of the platted lots would be consistent with the open space ratios of section 9- 804, MCLDR, and the environmental design criteria of section 9.5-34, MCC, or secure a conditional use as required by section 9.5-34-5, MCC. Amendment to the application post hearing In their proposed recommended order, submitted post hearing, the Applicants propose that the hearing officer recommend that, as a condition, the proposed canal terminate at the line of mean high water instead of extending approximately 100 feet into the boundaries of John Pennekamp State Park. The ostensible reason for the Applicants' request is their desire to eliminate the need for seeking approval from the Department of Natural Resources for intrusion into the boundaries of the park, and thereby shorten the time needed to secure all governmental approvals. While the Applicants did elicit testimony at hearing, albeit on rebuttal, that termination of the canal at the mean high water line would not significantly affect its performance as a flushing canal due to the extreme porosity of the caprock, the proof is not persuasive that the subject permits should be so limited or conditioned. Notably, the opinion that was offered in this regard was that of an expert hydrographic engineer who directed his remarks solely from a hydrographic viewpoint. The Applicants offered no testimony or other proof that would address the potential impacts, in any, that might occur to, inter alia, water quality or the biota, should the canal be terminated or closed in such a fashion. Under the circumstances, the Applicants failed to persuasively demonstrate that such amendment or condition is appropriate. This finding is not, however, preclusive of their applying for such modification to Monroe County.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Florida Land and Water Adjudicatory Commission enter a final order sustaining Monroe County's issuance of the subject permits in so far as they relate to Phase I of the proposed project, and reversing Monroe County's decision to issue the subject permits in so far as they relate to Phase II of the proposed project. It is further recommended that such final order specify those items set forth in paragraph 4, Conclusions of Law, as the changes necessary that would make the Applicants' proposal eligible to receive the requested permits for Phase II of their proposal. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 19th day of October 1990. WILLIAM J. KENDRICK Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 19th day of October 1990.
The Issue The issue is whether Respondent Department of Environmental Protection may issue to Respondent Tampa Bay Water a variance from the requirements, in Rules 62-555.520(4)(c) and (d), Florida Administrative Code, that an application for a permit to construct and operate a drinking water system contain drawings of the project with sufficient detail to describe clearly the work to be undertaken and complete specifications of the project to supplement the drawings.
Findings Of Fact Inception of Tampa Bay Water, Consolidated Permit, and Other Documentation for the Production of Drinking Water Respondent Tampa Bay Water (TBW) is a wholesale public water supply utility. TBW is governed by a nine-member board of directors with one member each from the municipalities of Tampa, St. Petersburg, and New Port Richey and two members each from the counties of Hillsborough, Pinellas, and Pasco. The purpose of TBW is to use group resources to find regional solutions to the problems of water supply in the region. Over two million persons in the three-county area rely on TBW for their drinking water. The predecessor of TBW was the West Coast Regional Water Supply Authority (WCRWSA), which was created in 1974. The West Coast Regional Water Supply Authority was also a wholesale public water supply authority. However, the authority operated as a cooperative entity, and TBW operates as a regulatory entity. In 1996, WCRWSA sought to renew its permit from Intervenor Southwest Florida Water Management District (SWFWMD) to allow continued withdrawals from four of its eleven major wellfields. Concerned with the environmental impacts, such as drawdowns of the water levels of wetlands, streams, and lakes, from the environmental, if not regulatory, overpumping of the wellfields, SWFWMD denied the application for the quantities requested. An Administrative Law Judge at the Division of Administrative Hearings conducted a hearing and issued a recommended order finding adverse environmental effects from overpumping, but recommending that SWFWMD issue the requested permits subject to certain conditions. Subsequent negotiations resulted in the parties' entering into a series of agreements covering withdrawals from the four wellfields that had been the subject of the administrative hearing and seven more wellfields that were approaching repermitting (11 Wellfields), as well as a series of other matters. On May 20, 1998, WCRWSA, the three member counties, the three member municipalities, and SWFWMD entered into the Northern Tampa Bay New Water Supply and Ground Water Withdrawal Reduction Agreement (Partnership Agreement). The Partnership Agreement requires WCRWSA to bring one or more projects online, by December 31, 2002, to produce at least 38 million gallons per day (MGD) and, by December 31, 2007, to produce at least 85 MGD of new water supply. The Partnership Agreement requires SWFWMD to provide WCRWSA with $183 million toward eligible water supply projects. The Partnership Agreement notes that the then-current Master Water Plan of WCRWSA recognizes that "an aggressive conservation and demand management program is an integral component of a sustainable water supply." (Joint Exhibit 3, p. 31.) The Partnership Agreement notes that the then-current Master Water Plan states that the conservation program was expected to reduce use by 10 MGD per day by 2000 and 17 MGD by 2005. From the effective date of the agreement through December 31, 2002, the Partnership Agreement requires a reduction in pumping of the 11 Wellfields to 158 MGD, based on a rolling 36-month average. For the next five years, the Partnership Agreement requires a reduction in pumping of the 11 Wellfields to 121 MGD, based on an annual average. After that, effective December 31, 2007, the Partnership Agreement requires a reduction in pumping of the 11 Wellfields to 90 MGD, also based on an annual average. Three weeks after the execution of the Partnership Agreement, WCRWSA was reorganized into TBW in June 1998 through the execution of two documents: an Amended and Restated Interlocal Agreement dated June 10, 1998 (Interlocal Agreement), and a Master Water Supply Contract dated June 10, 1998. TBW assumed WCRWSA's rights and responsibilities under the Partnership Agreement. The Interlocal Agreement empowers TBW to produce and supply drinking water "in such manner as will give priority to reducing adverse environmental effects of excessive or improper withdrawals of Water from concentrated areas." (Joint Exhibit 1, pp. 20-21.) The Interlocal Agreement incorporates the phased-in reductions in withdrawals from the 11 Wellfields that are set forth in the Partnership Agreement. The Interlocal Agreement notes that, if the Partnership Agreement provides for extensions of the deadlines, the deadlines contained in the Interlocal Agreement shall likewise be subject to extension. Applying to the 11 Wellfields, SWFWMD issued TBW a Consolidated Permit, which was issued on December 15, 1998, and became effective on January 1, 1999. Complementing the Partnership Agreement, which reflects SWFWMD's resource- development role, is the Consolidated Permit, which reflects SWFWMD's regulatory role. The Consolidated Permit incorporates the phased-in reductions of withdrawals, as set forth above, for the 11 Wellfields. Although the deadlines for phased-in reductions are conditioned on the funding to be provided by SWFWMD, pursuant to the Partnership Agreement, these deadlines are otherwise unconditional and firm. The Consolidated Permit expressly provides for extensions of deadlines, except the deadlines set for the phased-in reductions of withdrawals from the 11 Wellfields. The Consolidated Permit imposes upon TBW extensive responsibilities regarding environmental monitoring, reporting, and mitigation. These responsibilities extend to groundwater, wetlands, and surface waters, as TBW must, among other things, monitor and report levels in the surficial and Floridan aquifers and potentiometric surfaces in the Floridan aquifer in the vicinity of the 11 Wellfields, as well as in the vicinity of selected wetlands and surface waters. The Consolidated Permit sets specific "regulatory levels" for these resources. Present and Future Tampa Bay Water Facilities, Including the Surface Water Treatment Plant A majority of TBW's production facilities consists of the 11 Wellfields. In an effort to supplement these production sources so as to comply with the phased-in reduction deadlines set forth in the Consolidated Permit and other documents, TBW annually adopts a New Water Plan, which describes capital planning for drinking water production facilities. The June 2000 New Water Plan summarizes the requirements of the Partnership Agreement. The June 2000 New Water Plan notes that TBW reaffirmed its Master Water Plan and New Water Plan projects in April 2000. These projects include the Enhanced Surface Water System, which includes the Tampa Bay Regional Surface Water Treatment Plant (SWTP), Tampa Bay Reservoir Project (Reservoir), and projects obtaining water from the Alafia River, Hillsborough River, and Tampa Bypass Canal. Other projects, besides the Enhanced Surface Water System, include Seawater Desalination (Desal Plant). The June 2000 New Water Plan states that the Enhanced Surface Water System is eligible for a maximum of $120 million from SWFWMD, pursuant to its funding obligation under the Partnership Agreement. This case involves the means by which the SWTP will be permitted, and, in consideration of the manner of permitting, this case involves the means by which the SWTP will be designed and constructed. The June 2000 New Water Plan notes that TBW and USFilter Operating Services, Inc. (USFilter) have entered into a contract for the latter to design, build, and operate (DBO) the SWTP (DBO Contract). The June 2000 New Water Plan reports that USFilter is currently constructing an access road to the site. Among current issues, the June 2000 New Water Plan describes this case, noting that TBW obtained a variance from Respondent Department of Environmental Protection (DEP) allowing a design, build (DB) approach to permitting the SWTP. The June 2000 Water Plan states that the present challenge "has the potential to delay the completion of the [SWTP] by an estimated 8 months, subsequently delaying delivery of the initial 22 mgd (dry weather conditions) of new surface water to the regional system until May 2003 and more likely final acceptance of the [SWTP] to September 2003." (Joint Exhibit 5, p. 4.) (The accuracy of this statement is open to debate because SWFWMD granted an environmental resource permit for the SWTP project only on June 27, 2000--before which no significant alteration of the land could have taken place.) In the meantime, the June 2000 New Water Plan predicts a water supply shortfall of 100,000 to 2 million gallons per day in the South-Central service area of Hillsborough County. Addressing the SWTP, the June 2000 New Water Plan states that TBW purchased the site in October 1999 and released a Request for Proposals on July 19, 1999. Four pre-qualified DBO teams responded on October 18, 1999. The June 2000 New Water Plan erroneously states that TBW applied for a public drinking water facility construction permit (Water Treatment Permit) in October 1999. Actually, in September or October, TBW prefiled with the Hillsborough County Health Department (Health Department) its application for a Water Treatment Permit and paid the $7500 filing fee. The purpose of this courtesy filing or prefiling was to allow Health Department representatives to examine the application, including drawings and specifications for the SWTP, and perhaps expedite the approval process, once TBW filed a formal application. The June 2000 New Water Plan reports that the SWTP will have a peak day, surface water treatment capacity of 60 MGD and will be located on a 433-acre site near U.S. Route 301 and Broadway Avenue in central Hillsborough County. The June 2000 New Water Plan states that the SWTP project schedule calls for completion of construction by March 2003 with plant startup and testing in May 2003 and final acceptance testing in September 2003. The June 2000 New Water Plan estimates that detailed design, site permitting, and construction of the SWTP will cost $84.3 million, and the annual operation and maintenance expenses will be $7.9 million. As for the Desal Plant, the June 2000 New Water Plan reports that TBW will pursue a design, build, own, operate, and transfer (DBOOT) approach to acquire a plant to produce, initially, 25 MGD and capable of expansion by an additional 10 MGD. The June 2000 New Water Plan states that this plant will cost a total of about $96 million in capital expenses and about $19 million annually to operate. Procurement of the Surface Water Treatment Plant Design, Build, Operate Contract and Basis of Design TBW issued a Request for Proposals (RFP) that invited base and alternative proposals for the SWTP. TBW hired Parsons Engineering Sciences to prepare a preliminary design of the SWTP, so as to assist in the preparation of the proposals; although offerors could use alternative designs to the Parsons base design, all proposals had to meet the performance standards specified in the RFP. After publishing the RFP in papers and technical journals and on the Internet, TBW was able to prequalify five teams of offerors. Four of the five prequalified offerors submitted proposals. TBW received a total of nine proposals because each offeror submitted a base proposal and one alternative proposal, and one offeror submitted a second alternative proposal. At its January board meeting, TBW selected the USFilter proposal. No party filed a bid protest to the specifications of the RFP or the selection of USFilter and its team. After the selection of USFilter, TBW entered into negotiations with USFilter. During this process, USFilter agreed, at its expense, to add sand to the granulated activated carbon filters to remove fine particles more efficiently, even though it cannot recover the resulting cost of $1.5 million before or after the commencement of operations. TBW and USFilter entered into the DBO Contract on April 10, 2000 (DBO Contract). The DBO Contract identifies "Design Requirements" that "are intended to include the basic design principles, concepts and requirements for the [c]onstruction . . but do not include the detailed design or indicate or describe each and every item required for full performance of the physical [c]onstruction . . .." (Joint Exhibit 23, Section 1.2.6.) The "Design Requirements" are Schedule 6 to the DBO Contract. Schedule 6 contains all of the individual, technical specifications for the SWTP. Schedule 6 occupies two of the four volumes of large, three-ringed binders forming the DBO Contract. The DBO Contract identifies USFilter, Clark, and Camp Dresser & McKee, Inc. (Camp Dresser) as the DBO team for the SWTP project. Camp Dresser is providing design services, Clark is performing the construction, and USFilter is providing the operation and maintenance services for at least 15 years, as well as the financial guarantee, through its corporate parent. The DBO Contract provides TBW with a fixed construction cost, fixed operating costs, and guaranteed finished water quality. Schedule 8 assures that finished water quality will meet all applicable state and federal drinking water quality standards. Two witnesses at the hearing testified that TBW exacted from USFilter assurances of water quality that, as to certain parameters, will exceed applicable state and federal drinking water quality standards. The DBO Contract provides TBW with a firm completion date, subject to design modifications requested by TBW and uncontrollable circumstances, such as acts of God, raw water whose quality exceeds the maximum limits, or the delay caused by this case. A key document in this case is the Basis of Design Report (Basis of Design), which was prepared by the DBO team in April 2000. Acknowledging the phased-in withdrawal limitations and potential for fines for not meeting the deadlines set forth in the Consolidated Permit, the Basis of Design describes the purpose of the DBO process as follows: By utilizing the [DBO] approach for the [SWTP], [TBW] expects to secure substantial benefits . . .[,] includ[ing] costs savings, innovative design, reduced risk of schedule and cost excesses, long-term contracted facility operations, and maintenance efficiencies and guaranties. (Joint Exhibit 8, pp. 1-2.) The Basis of Design reports that the SWTP will be located on a 100-acre parcel within a 435-acre tract that will also accommodate facilities for groundwater treatment and storage of the treated groundwater, treated surface water from the SWTP, and treated saline water from the Desal Plant. The Basis of Design identifies the sources of raw water for the SWTF as the Tampa Bypass Canal, Hillsborough River, and Alafia River. Once online, the reservoir will help normalize quantities of available raw water throughout the dry season. The Basis of Design describes the main treatment process as pretreatment, including pH adjustment with sulfuric acid or caustic soda, powdered activated car feed, and ferric sulfate coagulant addition; coagulation, flocculation, and sedimentation using a high-rate ballasted sedimentation process known by its tradename as ACTIFLO; ozonoation for primary disinfection, taste and odor control, and partial conversion of dissolved organic carbon to an assimilable or biodegradable form; biologically active filtration for turbidity reduction, taste and odor control; reduction of biodegradable organic carbon; and post-treatment, including secondary disinfection using chloramines. The finished water will then be pumped into tanks for storage and blending before release into the distribution facilities. Distinguishing the DB process from the typical design, bid, build (DBB) process, the Basis of Design states: a very significant amount of process studies and pre-engineering was performed by the Project Team in support of its [DBO p]roposal. This work included a set of drawings covering all disciplines and developed to the 25 to 30 percent completion stage at a minimum with some drawings developed to a greater degree. This stage of drawing development is significantly beyond the sketches and diagrams usually provided in Basis of Design or Preliminary Design Reports. For this [Basis of Design,] the referenced drawings are attached and should be examined when reviewing this [Basis of Design]. As such, a relatively small number of figures are contained within this [Basis of Design]. (Joint Exhibit 8, pp. 1-4.) The Basis of Design notes that the Project Team conducted "pilot-scale" studies of the chosen treatment processes using Lake Manatee raw water. The purpose of these studies was to validate the selected treatment processes, provide water quality data, and establish appropriate operating criteria, such as coagulant dosages. The Basis of Design addresses raw water quality issues. One table sets out values for 30 different water quality parameters for each of the three raw water sources. The Basis of Design discloses expected water quality data for 11 water quality parameters. Of particular interest are total nitrogen and total phosphorus because, as noted in the Basis of Design, the algal life-cycle increases dissolved organic carbon and nutrient concentrations in reservoir water, and the "severity of this problem is impossible to predict." (Joint Exhibit 8, pp. 2-4.) The expected water quality values for total nitrogen and total phosphorus, respectively, are, on average, 0.8 and 0.55 mg/L and, at maximum, 1.6 and 2.1 mg/L. Each of the three surface waters approaches the average values, but none approaches the maximum values, for total nitrogen. The same is true for total phosphorus for the Tampa Bypass Canal and Hillsborough River. However, for the Alafia River, total phosphorus is 2.09 mg/L, so the raw water from the Alafia River may present a substantial treatment challenge, as it exceeds even the maximum expected value for total phosphorus. An error in Table 2-4 in reporting the maximum and average values of manganese (either the maximum value should be 0.02 mg/L or the average value should be 0.001 mg/L) and the omission of a turbidity parameter expressed in NTUs precludes analysis of these water quality parameters. However, the other expected parameters appear to reflect the actual water quality of these three surface waters. Section 4 of the Basis of Design describes the facilities and design criteria for the SWTP. This section begins with site grading, roadways, yardpiping, and stormwater management and extends to detailed discussions of the pretreatment and treatment processes, including the ACTIFLO, ozone contactor, and biologically active filtration. Urgency of New Means of Producing Drinking Water The SWTP is the hub of a network of production, storage, transmission, and distribution facilities that TBW plans to bring online in order to meet the requirements and deadlines set forth in the Consolidated Permit and other documents. The urgency for bringing this component of these new facilities online as soon as possible is due to environmental reasons, as well as the financial and legal reasons set forth above. Overpumping of existing wellfields has drawn down water levels in surface waters and wetlands, to the detriment of the overall level of biodiversity supported by these natural resources. Some lakes have been down 10 years, and a few have been down 40 or 50 years. During the recent drought, the City of Tampa, which obtains water from the Hillsborough River, lacked adequate volumes of surface water from which to produce sufficient finished water to meet the demand of its customers. Not surprisingly, these supply problems are accompanied by record withdrawals from the 11 Wellfields. Withdrawals in May and June of this year were the highest monthly withdrawals on record--208 MGD and 175 MGD, respectively. If the drought continues and TBW continues to meet the demands of its customers, TBW's withdrawals from the 11 Wellfields will exceed the permitted 158 MGD, on a rolling 36-month average, by April 2001. Wellfield overpumping has stressed the groundwaters. Although surface waters respond to substantial rains in as little as a day or two, groundwater takes significantly longer to respond. The surficial water table is as much as 20 feet below ground level, and the Floridan Aquifer is even deeper. The surficial aquifer does not begin to respond to substantial rains for one week, and the Floridan Aquifer begins to respond in two to four weeks. The condition of the surficial and Floridan aquifers affects the Hillsborough River and Tampa Bypass Canal, which are significantly recharged by the surficial and, sometimes, the Floridan Aquifer. The Floridan Aquifer is especially important to the Tampa Bypass Canal, whose rock bed has been breached. During dry periods, the two aquifers are the primary sources of recharge for these two surface waters. The Alafia River is more confined, but gets water from the Floridan Aquifer through two springs at the head of the river. TBW has already made substantial gains through conservation and has met the goal of nearly 10 MGD for 2000. Over the next 20 years, maximum potential gains are expected to be no more than 74-94 MGD. Conservation will continue to play an important role in securing adequate drinking water supplies in the Tampa Bay area, but conservation, even in conjunction with reclaimed water, will not suffice, especially when future population growth in the area is considered. TBW also manages wellfield production efficiently. Under its Optimized Regulatory Operations Plan, TBW collects and analyzes wellfield data to determine which wellfield to tap, notwithstanding specific limits set by wellfield, in order to minimize environmental damage. The consumptive use permits issued to TBW for the surface waters that will provide raw water to the SWTP restrict the amounts and timing of the removals. Additionally, a hydrobiological monitoring program requires the collection and analysis of data to safeguard against adverse effects in the rivers and, downstream, in the estuary. The contractual deadline for delivery of the SWTP is September 30, 2002. The timeframe for bringing online the SWTP necessarily relies on acceptance testing in the wet season, during which 60-65 percent of the annual rain occurs. The wet season extends from mid June to the end of September. Acceptance testing of the SWTP is imperative toward the end of this period because this is when the water quality of the surface waters bears the highest levels of the contaminants. Thus, if delays postpone beyond the wet season the point at which acceptance testing can take place, the postponement will effectively be until the next wet season and, possibly, the end of the next wet season. Permitting the Design, Build Process for the Surface Water Treatment Plant General The DB process envisioned by TBW would essentially break into phases the process by which TBW would obtain the necessary Public Drinking Water Treatment Construction Permit (Permit). The Permit initially would be based on "30 percent plans," which reflect about a 30 percent level of effort toward the overall design work or 30 percent completion of all of the design work (30 Percent Plans). Generally, 30 Percent Plans mark the end of the preliminary design phase. Plans reflecting 30, 60 and 90 percent levels of effort are customary in DBB processes, as these are the stages at which owners typically review design work. In 30 Percent Plans, some items are designed to 100 percent and other items are not designed at all. However, 30 Percent Plans provide reasonable assurance that the designed system is constructable. In essence, the Permit initially would be a conceptual permit for the entire SWTP coupled with a construction permit for those components for which the design is already complete on the 30 Percent Plans. Construction of each remaining component of the SWTP would await subsequent permit modifications authorizing construction of that component. As noted above, the May 18, 2000, cover letter anticipates another interim permit, or permit modification, covering specific components, and then the final permit, or permit modification, covering the entire SWTP. The DEP district office in Orlando has substantial experience with permitting DB water treatment projects. From 1996-98, the DEP Orlando office has permitted four such projects for the Orlando Utilities Commission and one such project for the City of Kissimmee. One of the Orlando Utilities Commission projects was to construct a completely new water treatment plant. Based on the experience of the DEP Orlando office, DB permitting, when based initially on 30 Percent Plans, shortens and simplifies the permitting process. DB permitting eliminates, or at least postpones, the presentation of elements, such as electrical and HVAC, that are irrelevant to the permitting process; the elimination of elements irrelevant to permitting from the initial designs helps the regulator find the elements that are relevant to the permitting process. Also, the experience of the DEP Orlando office is that the DB process results in no more permit modifications for change orders than are typical of a conventional DBB process. The DB-approval process used by the DEP Orlando office is modeled after the DEP-permitting process for wastewater treatment plants. DEP rules allow DB permitting of these plants, which are similar in construction to water treatment plants. In fact, DEP is preparing to adopt rules to allow DB permitting of water treatment plants. Because the DEP Orlando office did not issue variances from the rules that arguably preclude DB construction of water treatment plants, there is no precedent for the issuance of the variance sought in this case. However, the experience of the DEP Orlando office is that applicants do not present basic design changes after the initial submission, and DB permitting does not mean that regulatory objectives are sacrificed to the expediency sought by the applicant. The Present Case On April 11, 2000, Camp Dresser, on behalf of TBW, filed with the Health Department an Application for a Public Drinking Water Facility Construction Permit. The April 2000 drawings that accompanied the April 11, 2000, application are described above. The cover letter to the Health Department notes that, "upon conceptual approval of the project, individual components will be permitted through permit modifications based on submittals of complete drawings and specifications for each component." In this case, the availability of the Basis of Design meant that the 30 Percent Plans reflected more than a 30 percent level of effort or completion of the five-stage process of pretreatment, pH adjustment, ozone contactors, filtration, and storage in tanks. The engineer had already sized the facilities and defined all of the processes and elements of the SWTP. The April 2000 drawings, as supplemented by the Basis of Design, therefore presented a relatively detailed description of the scope, elements, and processes of the project. On May 18, 2000, Camp Dresser submitted to the Health Department more advanced drawings, which are dated May 18, 2000. The cover letter explains that the drawings are a complete set of Phase I drawings and specifications. The letter states that Camp Dresser intends to file complete drawings and specifications in three phases. Phase I, which is completed with the May 2000 drawings, consists of sitework, high rate flocculation and sedimentation, and ozone contact tanks. Phase II consists of biologically active granulated active carbon filters, clearwell, and gravity thickeners. Phase III consists of the remainder of the project. As of July 3, 2000, prior to the final hearing, the design for the SWTP had reached the 60 percent level of effort or completion. Although the SWTP described in the DBO Contract, Basis of Design, and May drawings is a relatively large, complex facility, it does not employ unproven technology. The standardization of design and regulatory review is facilitated by the use of the so-called Ten States' Standards, which are standards commonly used by the permitting authorities of numerous states, including Florida, to determine the capabilities of specified treatment processes in achieving specific water quality levels. Although the ACTIFLO technology is relatively new, it has been in use for at least five years. A pretreatment sedimentation barrier that reduces treatment time and thus tankage volume requirements, ACTIFLO is in use in a water treatment plant with a capacity of 60 MGD in Canada, which TBW's selection team members visited. ACTIFLO presently is being incorporated into a surface water treatment plant in Melbourne, Florida, where it must treat the nutrient-rich water of Lake Washington and the St. Johns River. The City of Tampa is adding ACTIFLO basins to its facilities. Also significant is the fact that ACTIFLO easily passed the pilot test on Lake Manatee. At present, 25 facilities using ACTIFLO are under design or construction in North America. As is consistent with the theory, the DBO process for designing, building, and operating the SWTP has demanded greater cooperation among the three entities that operate relatively independently in the DBB process. Pursuant to their obligations under the DBO Contract, Camp Dresser, Clark, and USFilter have coordinated, and likely will continue to coordinate, their efforts closely from design and construction, up to operation, to save time and money from the traditional DBB process, in which the design phase, construction phase, and operation phase are relatively independent of each other. The Variance In general, DEP has the authority to issue public drinking water treatment construction permits. The successful applicant obtains one permit--for construction and operation. There are no conceptual permits or separate operating permits. In Hillsborough County, as well as 10 other counties, DEP has delegated its responsibilities for issuing public drinking water treatment construction permits. In Hillsborough County, DEP has delegated this responsibility by an interagency agreement to the Health Department. Applying DEP rules to determine whether to issue a public drinking water construction permit, the Health Department defers to DEP for the issuance of variances from DEP rules. In typical permitting cases, the Health Department uses its own staff in processing the application and reaching a permitting decision. In a large case, such as this, the Health Department's lone professional engineer, who was hired in September 1999, can obtain considerable assistance from professional engineers within the Tampa Bay area and professional engineers employed by DEP. Perceiving a possible incompatibility between the DB process and the rules from which the variance is sought in this case, TBW initially filed a request for a variance with the Health Department. However, the Health Department declined to issue a variance to DEP rules and informed TBW that it had to file its request with DEP. Thus, on January 10, 2000, TBW filed a petition for a variance with DEP. On March 28, 2000, DEP issued a final order, pursuant to Section 120.542, Florida Statutes, granting the requested variance from Rule 62-555.520(4)(c) and (d), Florida Administrative Code (Variance). The Variance finds that the purpose of the underlying statutes would be met "because no component of the project would be permitted or constructed without review by the permitting authority of the complete plans and specifications for that portion of the project." The Variance finds that the DB approach will protect the public health, safety, and welfare in providing safe drinking water without exacerbating possible negative environmental impacts from the overuse of groundwater. The Variance relieves TBW of the necessity of complying with two subsections of the rule governing the contents of applications for a public drinking water construction permit. Rule 62-555.520(4)(c) and (d), Florida Administrative Code, provides: The permit application form sets forth the minimum information which is to be supplied to the Department or the Approved County Health Department. Additional information may be required by the Department to clarify information submitted in the permit application or to demonstrate that the proposed level of treatment will effectively treat the contaminants present in the raw water. The information required by the application is as follows: * * * Prints of drawings of the work project which contain sufficient detail to clearly apprise the Department of the work to be undertaken. All prints shall be minimum of 18 x 24 inches and a maximum size of 36 x 42 inches. The scale of details contained shall be satisfactory for microfilm reproduction. (Reduced size photographic reproduction of drawings for submission may be authorized.) Complete specifications of the project necessary to supplement the prints submitted. The issuance of the Variance by DEP has met with approval, albeit cautious approval, by the Health Department. One Health Department witness was an Engineer III, who is 19-year employee of the Health Department and supervisor of four Environmental Specialists charged with reviewing construction plans for drinking water plants. He testified that he agreed with DEP's final order granting the Variance. The Engineer III and the other Health Department witness, its professional engineer, testified that the issuance of the initial permit would not influence the Health Department in deciding whether to issue permit modifications, except to ensure compatibility. Allowing TBW not to comply with Rule 62-555.520(4)(c) and (d), Florida Administrative Code, the Variance provides that the initial permit shall not authorize the construction of any component of the SWTP; each component may be constructed only after the submission of complete plans and specifications for that component and the issuance of a permit modification based on those complete plans and specifications. The Variance also provides that the permitting authority shall publish a notice of intent to issue a permit modification "if the permitting authority believes that the modifications are of a controversial nature, or that there is heightened public awareness of the project." Save Our Bays and Canals, Inc. The Verified Amended Petition On May 1, 2000, Petitioner filed a petition challenging the Variance. On June 29, 2000, Petitioner filed an amended petition challenging the Variance, and the Administrative Law Judge granted Petitioner leave to file an amended petition on July 3, 2000. At the start of the hearing, on July 7, 2000, Petitioner filed a verified amended petition, which was identical to the amended petition, except that, on July 6, 2000, Petitioner's president had verified the pleading "to the best of [his] knowledge, information and belief." The verified amended petition states that Petitioner has over 400 members. The verified amended petition alleges that a substantial number of Petitioner's members will consume the finished water produced by the SWTP and will use the surface waters supplying the SWTP for recreation. The verified amended petition states that the purpose of Petitioner is to save the bays, canals, and waterways of the Tampa Bay area and to ensure safe drinking water for its members and residents of the Tampa Bay area. The verified amended petition states that the Variance affects Petitioner because it would allow the issuance of the Permit and construction of initial phases of the SWTP prior to submittal, review, and approval of complete plans for the next and subsequent phases. The verified amended petition alleges that Petitioner incorporated to pool its resources to review applications, so as to ensure safe drinking water. The verified amended petition states that submittal and review of a complete set of drawings and specifications is necessary prior to construction of the SWTP to ensure the ability of the facility to comply with state drinking water standards. The verified amended petition states that review of all individual components of the SWTP is necessary to assure the protection of the public health, safety, and welfare and the compliance with all applicable state and federal laws. Addressing specifically the 30 Percent Plans, the verified amended petition objects to the absence of a list of items to be included in the 30 Percent Plans. The verified amended petition alleges that this piecemeal approach to permitting will require Petitioner to request administrative hearings on each phase of permitting. The verified amended petition states that the Variance may have adverse environmental and safety impacts that cannot be evaluated fully without a submittal and review of the complete drawings and specifications. The verified amended petition states that the DBO approach is "self-created." The verified amended petition objects to the failure of TBW to obtain the Variance before issuing the RFP and instead using the DBO Contract as a basis for claiming hardship so as to qualify for the Variance. The verified amended petition states that the number of variances issued for similar 30 Percent Plans threatens to create a situation in which the variance subsumes the rule requiring complete drawings and specifications. The verified amended petition objects to this form of unwritten policy that has not been published as a rule. The verified amended petition states that the phased permitting of the SWTP may create permitting momentum that discourages a rigorous application of the rules at a later stage. The verified amended petition states that the request for a variance is improper because it is for a variance from statutes, not rules. The verified amended petition states that Section 403.861(10), Florida Statutes, requires DEP or Health Department approval of "complete plans and specifications prior to the installation, operation, alteration, or extension of any public water system." The verified amended petition states that "installation" means construction. The verified amended petition states that Section 403.861(5), Florida Statutes, prohibits the issuance of a public drinking water treatment construction permit "until the water system has been determined to have the required capabilities . . .." The verified amended petition states that the assurances of USFilter are insufficient to satisfy this requirement. The verified amended petition states that Section 120.542, Florida Statutes, which authorizes the variance procedure used in this case, does not authorize variances for compliance with federal law. The verified amended petition states that TBW must obtain a federal variance in order to obtain the Variance. The verified amended petition states that the 30 Percent Plans omit information required for permitting, such as the listing of a certified operator, monitoring and recordkeeping programs, and various financial elements, such as the posting of a bond and creation of reserves to demonstrate financial soundness. The verified amended petition states that TBW's substantial hardship is based on contract deadlines that are entirely self-created and, thus, insufficient to warrant a variance. The verified amended petition notes that the environmental damage cited as a basis for granting the Variance "was caused by years of overpumping by . . . TBW . . .." Also, the verified amended petition states that member governments of TBW continue to approve new development, which increases the demand for drinking water, because TBW and its member governments have failed to exploit fully the potential for conservation and reclaimed water. Similarly, the verified amended petition states that SWFWMD helped create the hardship by renewing the permits for additional withdrawals from the 11 Wellfields. The verified amended petition states that the DBO process will not necessarily save time and money and is not a recognized exception to the general requirement that an applicant must submit complete drawings and specifications prior to permitting. The verified amended petition states that 30 Percent Plans do not provide sufficient detail to know what the contractor is promising to build, and it would be faster to correct any mistakes prior to the start of construction, rather than after the start of construction. Standing Petitioner was an unincorporated association from its formation in early October 1999 through February 3, 2000, when it was incorporated as a Florida not-for-profit corporation. Originally named Save Our Bays and Canals Association, the unincorporated association was formed by members of the Apollo Beach Civic Association who were concerned about the environmental impact upon their bays and canals of intensive utility and industrial land uses in close proximity to their homes. Apollo Beach is an unincorporated area along the southeast shore of Tampa Bay, just south of the mouth of the Alafia River. The land uses with which the unincorporated association has been concerned in its brief existence include a sulfur plant, the TECO Big Bend plant, a proposed National Gypsum plant, a proposed concrete plant, the proposed Desal Plant, and, now the proposed SWTP. The Apollo Beach area is very close to the proposed site of the Desal Plant, but is about 17 miles south southeast from the proposed site of the SWTP. Petitioner and its members are primarily concerned with the Desal Plant, not the SWTP. However, Petitioner and its members express concern with the SWTP. The concerns are that DB permitting of the SWTP will jeopardize the production of safe drinking water and will result in greater costs to TBW customers, who will eventually bear the financial burden of costly reworking of a hastily designed and constructed project. Standing analysis is simplified by the elimination of the issue of whether the verification of the amended petition confers standing. The claims of Petitioner in this case do not rise to the level of an attempt to prevent an activity, conduct, or product to be permitted from impairing, polluting, or otherwise injuring the air, water, or other natural resources of the State. First, finished drinking water is not a natural resource of the State. Although a resource, finished drinking water is not natural. Although of lower water quality, raw water is a natural resource. The potable water leaving the SWTP is a manufactured resource. Second, even if finished drinking water were a natural resource, the issuance of the Variance does not have the effect of impairing, polluting, or otherwise injuring a natural resource. The Variance excuses compliance with two rules requiring complete drawings and specifications. Even assuming that the SWTP would impair, pollute, or otherwise injure natural resources, the Variance would not have such an effect because the act of granting the Variance is distinct from the act of granting the Permit itself. Thus, facts regarding the circumstances under which Petitioner's president verified the amended petition are irrelevant for the purpose of determining standing. Petitioner's standing is a function of the characteristics of the corporation and its members. At the corporate level, the articles of incorporation state that the "specific and primary purposes for which this corporation is formed are to operate for the public education and advancement of the water quality of Tampa Bay, its tributaries, its estuaries and its canals and for other charitable purposes, by the distribution of its funds for such purposes." There is some indication in the record of an attempt, after filing the petition commencing this proceeding, to amend the articles of incorporation to state, among Petitioner's purposes, the protection of drinking water. The record does not contain the written articles of incorporation, as amended, or amended articles of incorporation after February 3, 2000. However, for the purpose of this recommended order, the Administrative Law Judge shall assume that such an amendment was made at some point after the filing of the petition and before the final hearing. At the membership level, the water to be produced by the SWTP will be distributed primarily to customers in Pasco and Pinellas counties, St. Petersburg, and the Northwest Service Area of Hillsborough County, not to Apollo Beach, which is in southern Hillsborough County. Nearly all of Petitioner's members reside in Apollo Beach or other nearby communities, which also will not be served by the SWTP. Although an insubstantial number of Petitioner's members will consume finished water from the SWTP in their homes, a substantial number will consume finished water from the SWTP at their places of work or schools and where they shop or dine out. Drinking water is ubiquitous, and the mixture of functional land uses in Apollo Beach is not, so it is highly probable that members of Petitioner will travel the three-county area in connection with their employment, education, and recreation. Close analysis of the characteristics of Petitioner and its members reveals no basis for finding standing to challenge the Variance. Nothing in the record suggests that Petitioner or any of its members have devoted themselves to the arcane task of resisting a perceived trend of state and local agencies to issue series of permits in response to DB proposals--or, more colorfully, to engage in "piecemeal permitting." About the only interest that Petitioner can legitimately claim in DB permitting is that multiple points of entry, at each permit and permit modification, will result in additional expense. If Petitioner has standing to contest even the permitting of the SWTP, Petitioner must petition each time for an administrative hearing, conduct discovery, and participate in the final hearing. However, this seems, at most, like a tenuous interest, which suffers also from the speculation that later stages of the DB permitting process will continue to present new issues not raised in the challenge of the Permit initially approved. Turning to the members themselves, their consumption of drinking water produced by the SWTP is no basis for standing either because the attenuated relationship between the Variance, which excuses compliance with two rules concerning the contents of applications, and the safety of drinking water or the additional costs that could arise from hasty designing, constructing, or permitting. Although it is conceivable that a record could have been made that the DB permitting proposed in this case would likely result in incomplete, incompetent permitting review, so as to jeopardize the public health if the permit were to issue, the record in this case does not support such a contention. To the contrary, the record establishes that the DB permitting is at least as likely as DBB permitting to provide the regulatory oversight necessary to assure the design and construction of a successful public drinking water treatment plant Lacking a substantial nexus in the record between the DB permitting authorized by the Variance and the quality of the drinking water that, if the Health Department issues the Permit, would likely be produced by the SWTP and likelihood of success of the overall construction project, the members of Petitioner likewise lack standing to challenge the Variance. Ultimate Findings of Fact Petitioner and its members lack standing to challenge the Variance. TBW faces a substantial hardship if not given the Variance. The legal and financial consequences of a failure to meet the phased-in withdrawal reductions are real and substantial. The environmental damage caused by overpumping the 11 Wellfields underscores the urgency of developing alternative sources of raw water for production into finished drinking water. The rule from which TBW seeks the Variance is derived from the statute discussed in the Conclusions of Law. The underlying purpose of this statute is the protection of the public health, safety, and welfare. The Variance serves the underlying purposes in two respects. First, the 30 Percent Plans contain sufficient detail to allow permitting to proceed without jeopardizing the objective of the rules to ensure that the USFilter team designs and constructs a water treatment plant that is in full compliance with all federal and state law. Second, the Variance provides that the USFilter team shall construct no component of the SWTP until it has been permitted, either initially or by a permit modification. Petitioner's Liability for Attorneys' Fees and Costs Petitioner has a Technical Committee on which Petitioner relies for examination of technical aspects of matters that are of general concern to Petitioner. This committee obtained a copy of the Variance and, after examination and discussion, developed a position in opposition to DEP's stated intent to grant the Variance. The Chair of Petitioner's Technical Committee, who has a bachelor of science degree in chemistry and is an industrial hygienist, drafted a letter reflecting the opinion of the committee in opposition to the Variance. Petitioner's attorney then converted this letter into the petition that commenced this proceeding. At all times, the Board of Directors of Petitioner approved the actions of the Technical Committee and Petitioner's attorney, including the filing of the petition. When Petitioner's president verified the amended petition, he reasonably relied on the advice of counsel concerning the substance of the assertions, and the advice of counsel was based on the work of the Technical Committee. Petitioner's president also reasonably relied on the work of the Technical Committee when he verified the amended petition. Although DB permitting has been available for the design and construction of wastewater treatment plants for an undetermined period of time, DB permitting for the design and construction of public drinking water plants is a new concept. The concept is so new that the DEP Orlando office mistakenly issued at least 2 DB permits for public drinking water plants without requiring the applicant to obtain a variance from the two rules that prevent DB permitting for such facilities. The concept is so new that the key Health Department employees have expressed concern over personnel demands from this new means of permitting, although they have also expressed at least lukewarm support for the Variance. The record portrays the employees of the Health Department as hard-working and competent, but over-burdened. The DB permitting obviously places significant responsibilities upon the Health Department, especially as it familiarizes itself with DP permitting. Although the availability of professional support from other sources, including DEP, ultimately resolves this issue, the situation of the Health Department also is relevant in assessing Petitioner's liability for attorneys' fees and costs. Two or three aspects of the drawings were deficient, according to Petitioner's professional engineer, whose testimony has been admitted despite the unreasonably restricted opportunity presented for cross-examination by his contractually driven refusal to identify past clients or jobs. Although none of these items seems likely to jeopardize a successful construction project, these were design points on which well-informed professionals could reasonably differ. Although the issue of "improper purpose" presents a closer question than the substantive issues discussed above, there is inadequate subjective or objective evidence in the record supporting TBW's claim for attorneys' fees and costs on this ground. Ultimately, the novelty of DB permitting of drinking water treatment plants precludes a finding of improper purpose. All available facts drive this determination, and, at this point in time, the relative uniqueness of DB permitting of drinking water treatment plants to DEP, the Health Department, and Petitioner and its members provides the necessary margin to preclude a finding of improper purpose.
Recommendation It is RECOMMENDED that the Department of Environmental Protection enter a final order granting the Variance and denying the request of Tampa Bay Water for attorneys' fees and costs. DONE AND ENTERED this 24th day of July, 2000, in Tallahassee, Leon County, Florida. ROBERT E. MEALE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 24th day of July, 2000. COPIES FURNISHED: Kathy C. Carter, Agency Clerk Office of General Counsel Department of Environmental Protection 3900 Commonwealth Boulevard Mail Station 35 Tallahassee, Florida 32399-3000 Teri L. Donaldson, General Counsel Department of Environmental Protection 3900 Commonwealth Boulevard Mail Station 35 Tallahassee, Florida 32399-3000 Ralf G. Brookes, Attorney 1217 East Cape Coral Parkway Suite 107 Cape Coral, Florida 33904 Donald D. Conn, General Counsel Tampa Bay Water 2535 Landmark Drive, Suite 211 Clearwater, Florida 33761 J. Frazier Carraway Thomas A. Lash Salem, Saxon & Nielson, P.A. 101 East Kennedy Boulevard Suite 3200 Tampa, Florida 33601 Cynthia K. Christen Senior Assistant General Counsel Department of Environmental Protection 3900 Commonwealth Boulevard Mail Station 35 Tallahassee, Florida 32399-3000 William S. Bilenky General Counsel Jack R. Pepper, Jr. Associate General Counsel Southwest Florida Water Management District 2379 Broad Street Brooksville, Florida 34609-6899
The Issue The issue for determination is whether Respondent Leon County School Board should be issued a dredge and fill permit to excavate and backfill in connection with the installation of sewage collection system pipes beneath the Alford Arm of Lake Lafayette in Leon County.
Findings Of Fact On April 13, 1989, the Board submitted a permit application to DER for the dredge and fill permit which forms the basis for this proceeding. The project represented in the dredge and fill application consisted of installation of two sewage collection system pipes beneath the Alford Arm of Lake Lafayette. Installation would be accomplished by excavating and backfilling two trenches, each approximately 50 feet long by four feet wide by two feet deep. The pipes to be installed in the trenches adjacent to Buck Lake Road are one 15-inch gravity main and one 14-inch force main. A total of 15 cubic yards of soil was proposed for excavation and replacement. The project area consisted of less than 100 square feet. The Alford Arm in the project's vicinity is a canal dredged in the 1920's and 1930's. Neither the Alford Arm nor Lake Lafayette constitute Outstanding Florida Waters (OFW), instead these water bodies are Class III Waters. On April 14, 1989, DER staff conducted an inspection of the project site, completed a permit application appraisal of the project, and issued permit no. 371633191 for the project. On the same day, the permit was withdrawn when it was discovered that the document had been signed by an unauthorized official. On April 20, 1989, DER again issued permit no. 371633191 to the Board for the project. The dredging, pipe installation, and backfilling were subsequently completed. Water Quality Since the dredging and filling could potentially produce short-term turbidity in the Alford Arm as a result of sediment entering the water, a specific condition of the permit required the placement of a row of staked hay bales downstream from the project site prior to construction and thereafter until re- vegetation of the site had occurred. By compliance with this turbidity control measure, reasonable assurance was provided by the Board that violations of state water quality standards would not result from the project construction. The project did not cause any violations of DER water quality criteria for turbidity or any other water quality criteria. Numerous technological advances and safeguards built into the sewer lines and lift stations make probability of any leakage very remote. Petitioner's concern with regard to potential for leakage from the collection system lines and the lift stations to cause water quality problems in the Alford Arm is not supported by any competent substantial evidence of record regarding statistical frequency and probability of such occurrences. Further, there is no such evidence of infirmities regarding design soundness or the functional history of the pipe used in the project. Public Interest DER evaluated the project in accordance with the criteria of Section 403.918(2), Florida Statutes, prior to issuance of the permit. Another review has now been completed approximately two years after completion of the project. The project has not and will not cause any adverse impacts on public health, safety, welfare, or property of others. Likewise, the project has not caused adverse impacts on significant historical or archaeological resources. Similarly, no adverse impacts on the conservation of fish or wildlife, including endangered or threatened species or their habitats has or will result from the project. Interestingly, woodstorks have been observed feeding in the very vicinity of the project as recently as May 28, 1991, more than two years after completion of the project. No adverse impacts have or will be visited upon navigation or flow of the water. No harmful erosion or shoaling has or will result from the project. The project has not and will not cause any adverse impacts on fishing, recreational values or marine productivity in the vicinity of the project. The impacts of this dredge and fill project were temporary. The dredged and filled area has re-vegetated with the same species, pickerelweed and smartweed. Wetland functions of the site that existed prior to the project were minimal and have been re-established. Cumulative And Secondary Impacts Cumulative impacts from similar projects were not evidenced at the final hearing. There are no projects proposed which are closely linked or causally related to the dredge and fill project. The only non-speculative secondary impact from the project was possible leakage of wastewater from the collection system lines and lift station. The probability of such leakage is very low. Particularly in view of the geographical area, engineering design and manufacture of the pipes and waste collection system, such probability is speculative and minimal or non-existent in the absence of competent substantial evidence regarding statistical frequency of such an event. The construction of the sewage collection system with which the project is associated is a result of growth in the geographic area. While the project has not been established to induce growth in the area, such development would not affect Lake Lafayette since the collection system currently installed has a 400 gallon per minute capability, or the ability to serve 400 residential connections. Prior to issuance of the dredge and fill permit, 800 existing residential lots were platted along Buck Lake Road within two miles east and two miles west of the project site. Since the system could be upgraded to accommodate 1600 residential units, the potential increase that could result from the project in any event is an additional 800 residential units. If these additional residences are built at the very high density of one per quarter acre, these lots would cover only approximately two-thirds of a square mile or less than one percent of the Lake Lafayette drainage basin of approximately 80 square miles. Such development would have no measurable impact on Lake Lafayette.
Recommendation Based on the foregoing, it is hereby recommended that a Final Order be entered approving the issuance of permit number 371633191 to the Board. RECOMMENDED this 9th day of August, 1991, in Tallahassee, Leon County, Florida. DON W.DAVIS 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 9th day of August, 1989. APPENDIX TO RECOMMENDED ORDER, CASE NO. 89-2752 The following constitutes my specific rulings, in accordance with Section 120.59, Florida Statutes, on findings of fact submitted by the parties. Petitioner's Proposed Findings. None Submitted. Respondent Board's Proposed Findings: 1.-17. Adopted in substance. Respondent Department's Proposed Findings: 1.-24. Adopted in substance. COPIES FURNISHED: Terri Saltiel 7769 Deep Wood Trail Tallahassee, FL 32311 Richard A. Lotspeich, Esq. John T. LaVia, III, Esq. P.O. Box 271 Tallahassee, FL 32302 Michael Donaldson, Esq. Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, FL 32399-2400 Carol Browner, Secretary Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, FL 32399-2400 Daniel H. Thompson, Esq. General Counsel Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, FL 32399-2400
Findings Of Fact Petitioner represents the owner of the property here involved, St. John's Riverside Estates, and was authorized by the owner to prosecute this appeal (Exhibit 19). Some years ago, circa 1960, the owner of the property dredged canals in each of the two parcels here involved, but the plug between the canals and the St. Johns River was not removed. Petitioner now proposes to remove these plugs and maintenance dredge a channel from the location of the removed plug to the St. Johns River. Spoil from the maintenance dredging will be deposited on lands owned by Petitioner. The existing canals are typical dead-end canals which are stagnant at present. By removing the plugs and opening the canals to the St. Johns River, Petitioner will improve the water quality of these canals. Developing the property along the canals as residential homesites will result in additional nutrients and pollutants entering the canals from surface water runoff. Petitioner proposes to use surface water runoff as one method of flushing the canals. Other flushing action would come from tidal flow in the St. Johns River. Although there was some conflict in the testimony regarding the propriety of using the rainfall from a twenty-five year storm event in lieu of of a one-year storm event to calculate the flushing action of the canals by rainfall, use of surface water to flush the canal appears to violate the provisions of Chapter 403, Florida Statutes, respecting water quality. As a condition to the development of the property, Respondent could require Petitioner to hold the surface water runoff in retention ponds to reduce the entry of pollutants into the river. If this was done, percolation and evaporation would further create a substantial reduction in flushing from this source. The St. Johns River is a Class III water body of the state. The water quality of the canals here under consideration are below the state water quality standards with respect to dissolved oxygen levels even using the samples taken during the winter months when dissolved oxygen levels are high. (Exhibits 1, 2 and 3). Generally, dissolved oxygen levels are lower at the bottom of such canals than at the surface. If the samples taken at the surface and bottom during the winter months are averaged for dissolved oxygen content, the result will be above the state minimum water quality standards. However, the dissolved oxygen of samples taken from the canals on May 5 and October 4, 1978, are predominately below the level of 5 mg/l prescribed as the minimum state standard. Removing the plugs would not result in satisfactory flushing of these canals by tidal action. Under the best assumed conditions, it would require 18 tidal cycles or 9 bays to flush 90 percent of the water from these canals by tidal action. An acceptable flushing rate is 2 to 3 days. These canals contain water hyacinths and grasses which increase the biochemical oxygen demand (BOD) which reduces the dissolved oxygen level. Not only do these vegetations reduce photosynthesis by shading the water from sunlight, but also when they die and fall to the bottom, they create a high BOD. Considerable evidence was presented depicting the area, the flora and fauna of the area and the present condition of the water quality of these canals. No evidence was presented to the effect that removing the plugs and allowing interchange between the low quality waters of the canals and the higher quality waters of the St. Johns River would not degrade the water quality of the St. Johns River. Also, no evidence was presented that the residential development of the area as proposed would not increase the coliform count, detergent level, or heavy metals content of the waters of the canals which would further cause a degradation of the river water if the plugs are removed and the waters of the river and canals are interchanged.
Findings Of Fact On November 1, 1982, Respondent Janson filed a Joint Application for a dredge and fill permit from Respondent, Department of Environmental Regulation, and from the Department of the Army Corps of Engineers. The project described in that application involved the construction of an approximately 1,000-square- foot, pile-supported residence, landward of the mean high water line but within the landward extent of Robinson Creek in St. Johns County, Florida. The proposed project also involved the placement of approximately 35 cubic yards of fill and a 30-foot culvert within a small (approximately 4-foot), tidally- influenced roadside ditch for driveway access and parking. The original application sought permission to place part of a concrete driveway and tool shed within the landward extent of Robinson Creek. The project is to be constructed on Lot 47, J.A. Lew Subdivision. Respondent Janson owns Lot 47, as well as Lots 45 and 46, which lots are north of and adjoining Lot 47 and also adjoining Robinson Creek. The next adjoining property owner to the north is the City of St. Augustine, Florida, which presumably owns the street. The adjoining property owner to the south of Lot 47 is Virginia P. Melichar. Neither Melichar nor the City objected to the Department's approval of the dredge and fill permit application. In support of his application, Janson retained the services of a registered surveyor and civil engineer, who performed a survey on Lot 47 to determine the location of the mean high water line with reference to the proposed project. That expert determined the location of the mean high water line to be at elevation 2.4 feet. Accordingly, all work contemplated by the dredge and fill permit is upland from the mean high water line. T.J. Deuerling, an environmental specialist for Respondent, Department of Environmental Regulation, visited the project site on December 13, 1982 and on December 30, 1982 in order to prepare the Department's Biological and Water Quality Assessment. As a result of those site visits, Deuerling recommended to Respondent Janson that he modify his permit application by moving the concrete slab and tool shed from the marsh area onto the uplands. Janson did so revise his application. In spite of the name of the permit being sought by Respondent Janson, the project involves no dredging. However, the culvert and its attendant fill would be placed in the man-made roadside ditch. That ditch constitutes a very weak transitional marsh. Although the culvert will eliminate some vegetation within that ditch, the effect of the elimination will be insignificant on water quality. The pilings for the pile-supported residence will also eliminate a small area of marsh. The anticipated shading caused by the pile-supported residence may impact somewhat on the vegetation in a small area below the residence; however, due to the fact that the floor of the house will be eight feet above the ground, light will still be able to penetrate. Therefore, the vegetation below the pile-supported residence will continue to act as a filter for pollutants. Janson has mitigated the small loss in wetlands by modifying his project so as to remove the concrete slab and tool shed from the marsh area to the uplands. Due to the project's small size, no storm water impact can be expected. Additionally, no evidence was introduced to show a violation of any water quality standard as a result of the proposed project. On March 16, 1983, Respondent, Department of Environmental Regulation, executed its Intent to Issue the dredge and fill permit in accordance with the revised application and subject to the conditions that: (1) turbidity curtains be employed in the ditch during the placement of fill over the culvert to contain any turbidity generated, and (2) construction on the uplands be confined to periods of normal water level conditions. On July 5, 1983, the Department of the Army Corps of Engineers issued its Permit and Notice of Authorization. The essence of the testimony presented by the Petitioners, including that of the employees of the St. Johns River Water Management District, who testified in opposition to the proposed project, is that even though Janson's proposed project would not impact water quality in a way that was either significant or measurable (although no one even suggested any specific water quality standard that might be violated), approval of Janson's permit might set a precedent for other projects which might then have a cumulative impact in some unspecified way at some unspecified location. No evidence was offered to show that Respondent, Department of Environmental Regulation's review of permit applications is other than site specific. Further, no evidence was introduced to show any proposed project anywhere having any impact with which Janson's project could be cumulative. Petitioners Sandquist and Shuler live in the neighborhood of the proposed project, perhaps as close as two blocks away.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered dismissing with prejudice the petition filed herein as to each individual Petitioner and issuing a dredge and fill permit to Respondent Janson in accordance with his revised application. DONE and RECOMMENDED this 13th day of January, 1984, in Tallahassee, Leon County, Florida. LINDA M. RIGOT, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 13th day of January, 1984. COPIES FURNISHED: Stormy Sandquist 3 Aviles Street St. Augustine, FL 32084 Marion C. Snider Volla F. Snider 79 Fullerwood Drive St. Augustine, FL 32084 Carmen Ashton 51 East Park Avenue St. Augustine, FL 32084 Reuben D. Sitton Gail P.Sitton 35 Seminole Drive St. Augustine, FL 32084 Sandra N. Shuler 22 East Park Avenue St. Augustine, FL 32084 Patty Severt Greg Severt 1 Fern Street St. Augustine, FL 32084 Nancy Moore Paul Moore, Jr. 6 Fern Street St. Augustine, FL 32084 John D. Bailey, Jr., Esq. P.O. Box 170 St. Augustine, FL 32085-0170 Charles G. Stephens, Esq. Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, FL 32301 Victoria Tschinkel, Secretary Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, FL 32301
Findings Of Fact The applicant currently operates a 58 slip marina Village at the proposed site, which was constructed under a modified permit from the Department in 1980 by Sunset Realty. Subsequent to that construction, the Petitioner commenced its Marina Village project on uplands adjacent to the existing dock facility and entered into a lease with Sunset Realty to operate the present marina as part of its "Boca Grande Club." The operative portion of the existing marina, that is, where boats are moored and operate, is in water eight feet or greater in depth. The marina provides fuel service at a separate fuel dock as well as electric and telephone service at the individual slips, thus permitting boats using the slips to hook up to on- shore electrical and telephone service. Sewage pump-out equipment is available at the fuel dock and a portable sewage pumping facility is available to be moved to each slip as necessary. Boca Grande Club employs a full time dock master who lives aboard a boat at the existing facility. The facility presently generally serves larger craft, that is, boats generally larger than 25 feet in length and serves some vessels in excess of 60 feet in length. The marina village portion of Boca Grande Club is a condominium, residential development, which is nearly completed and will consist of 48 residential units. A second portion of the Boca Grande Club is located on the Gulf of Mexico some 2,000 feet away from the marina village. The entire project employs slightly more than 100 people. The Petitioner contends that the existing marina of 58 slips is not sufficient to provide adequate dock space for the residents of the development, as well as members of Boca Grande Club. It also contends that the existing dock elevations are such as to make access from small boats to the dock difficult. The number of residents or club members requiring boat slips was not established, nor was it shown that efforts to modify existing dock elevations have been attempted unsuccessfully. In any event, the Petitioner applied to the Department on February 15, 1985, to construct the approximate 3450 square feet of additional dock facility. This would include a "T" shaped structure with an access ramp or walkway extending approximately 189 feet toward the existing channel from the shore. The waterward "T" portion will be 237 feet ~n length. Additionally,. an "L" shaped structure with two sections, each approximately 75 feet in length, would be constructed which would accommodate six boat slips. The "T" shaped dock will accommodate 19 boat slips at its waterward end. The docks proposed will contain ten 3' X 15' finger piers with regard to the "T" shaped dock and two 3' X 15' finger piers attached to the "L" shaped dock. The applicant would install 42 mooring pilings in the bottom of Gasparilla Sound for the mooring of boats using the docks. Thus, the applicant proposes the addition of approximately 25 boat slips with the proposed docks, all of which will be located within Gasparilla Sound, in the Charlotte Harbor Aquatic Preserve, an Outstanding Florida Water (OFW). This is a Class II water body pursuant to Chapter 17-3, Florida Administrative Code, and has also been designated an outstanding Florida water, pursuant to Rule 17-3.041, Florida Administrative Code. The docking facility will be located in an area vegetated by sea grass, including turtle grass and associated algae. The access ramp for the "T" dock would be through a mangrove fringe including red, white and black mangroves. The Department's appraisal recommended denial of the application unless certain modifications to the "T" shaped dock are accomplished, including omitting the "T" shaped docking structure or relocating it to an area without grass beds; that the pilings should be driven into place rather than placed in augured holes; that turbidity screens should be installed and staked around the proposed piling site and that no boats over 25 feet in length or equipped with heads or toilets should be allowed to moor at the docking facility, nor should boats be permitted with people living aboard them. On September 5, 1985, the Respondent issued its Intent to Deny indicating that the project was expected to violate water quality standards and that the construction of the dock and the presence of the moored boats attendant to use of the dock would lower existing water quality in terms of turbidity, biological integrity, bacteriological quality, especially as to fecal coliform and total coliform bacteria and based upon the DER's position that the "T" shaped dock would not clearly be in the public interest in several respects. The Department has no objection and proposes to issue a permit for construction of the smaller, "L" shaped dock. In response to the Intent to Deny, the Petitioner resurveyed the seagrasses in the area and located a site where the water depths sloped to deeper water and seagrasses were sparser. It modified its application, moving the waterward extension of the dock over the deeper water in the less dense seagrasses, but could not move the dock to a location to avoid seagrass since to do so would not allow maneuvering room for larger boats utilizing the existing dock. The applicant agreed to the other suggestions of modification by the Respondent. Thus, the applicant subsequently modified the application to include "bow-in" mooring of boats so as to place boat propellors over the deepest possible waters at the mooring site, as well as raising the central portion of the access ramp leading waterward from the shore, to provide for greater light penetration and less shading of seagrasses, as well as narrowing the dock to five feet in width where it passes through the mangrove fringe, so as to limit alteration of the mangroves at the site to only three trees. The Department continues to take the position that the permit should be denied, however, on the basis that the construction of the dock and the presence of the boats attendant to the dock will lower existing water quality in terms of the above particulars and based upon the DER's evaluation that the "T" shaped dock will not clearly be in the public interest. AMBIENT WATER QUALITY The Petitioner tendered C. W. Sheffield, professional engineer, and Dr. Martin Roessler as experts in the field of water quality and they were accepted without objection. The respondent tendered the expert testimony of Mr. Doug Frye and William Porter, respectively a dredge and fill specialist and supervisor and an environmental specialist with the Shellfish Monitoring Program for the Department of Natural Resources, who were accepted as expert witnesses in the areas of water quality and, with regard to Mr. Porter, the impacts of water quality on shellfish. It was thus established that the ambient water quality in the cove which contains the present marina and where the proposed docking facilities would be is generally good. The water meets all relevant State regulatory standards with the exception of fecal coliform and total coliform bacteriological standards for Class II waters. In that regard, repetitive samples have shown violations of the fecal coliform and total coliform bacteriological standards for Class II waters on a number of occasions. The data relied upon concerning fecal coliform organism levels at the project site was collected and analyzed over approximately a one year period during which time the samples were shown to contain fecal coliform and total coliform bacteria in violative concentrations a number of times. Marinas are known discharge sources for fecal coliform organisms. This is especially true of moored boats in marinas which often have toilets or heads which are illegally flushed into the State waters within the marina. The presence of moored boats with heads are known discharge sources of fecal coliform organisms and the boats utilizing the present marina and the proposed project do, and likely will, have toilets on board, which can be improperly discharged into the waters of the marina. This marina has been established to be a source of discharge of fecal coliform organisms in violation of the relevant standard for Class II waters of the State. There presently exists relatively high levels of fecal coliform organisms ranging up to 50 organisms per 100 milliliters of water in the area of the existing marina. This level of concentration exceeds the regulatory standard for fecal coliform bacteria in the Class II water quality rules. Although Mr. Porter discussed the possibility that high levels of coliform bacteria could be caused by birds or animals depositing fecal material in the water, he established that the likely source of elevated levels of this bacteria was improper operation of heads aboard boats, as pointed out by the fact that samples taken in other areas of the Gasparilla Sound away from marina sites do not exhibit the high coliform levels found on repeated occasions at the subject site. Thus, it has been established that the ambient water quality is within State standards for all parameters with the exception of fecal and total coliform bacteria for Class II waters. The Petitioner contends that Class III water standards are appropriately applied herein inasmuch as the Department placed the Class III standards rather than the Class II standards at issue in its Intent to Deny, albeit mistakenly. There is no question, however, that there are Class II waters of the State involved at this site and the subject area is within the aquatic preserve and outstanding Florida waters. The Petitioner is charged with knowledge of this inasmuch as the aquatic preserve boundaries are delimited in the Department's above-cited, published rule. In preparing and processing its application and electing to proceed with this project, the Petitioner is charged with knowledge that these are Class II waters and that the water quality criteria and considerations applicable to Class II outstanding Florida waters are the appropriate parameters with which it must comply. In any event, this is a de novo proceeding and the Department's initial position with regard to this application is not binding in favor of or to the prejudice of any party to the Section 120.57(1), Florida Statutes proceeding. IMPACT ON BENTHIC COMMUNITY ·9. There is a moderate stand of seagrass at the proposed site of the "T" portion of the dock or waterward end of the dock, with dense seagrass beds existing toward the shore, over which the narrower walkway portion of the dock will traverse. Seagrass beds are an especially productive marine community which contribute greatly to the biological diversity in surrounding waters because of their important function in the marine food chain. That function is involved with the seagrasses production of detrital matter consisting of seeds and vegetative material which marine organisms feed upon and upon which organisms larger fish, including commercial and sport fish species, feed upon. Potential adverse impacts caused by a project of this type on the Benthic Community at the project site and especially the seagrass beds involve the potential shading of seagrasses caused by the location of the dock over them, as well as the mooring of boats over them which shading retards or eliminates photosynthesis, which ultimately can kill the seagrass and thus reduce marine productivity in the area. The concentration of boats at such a mooring site as the end of this "T" dock will concentrate the effects of prop scouring, washing and prop dredging, which will have a destructive effect on seagrasses as well as the settling out of sediment from propellor wash or disturbance of the bottom on the seagrasses which can ultimately smother them as well as other marine life forms. In discussing these considerations, it should be pointed out that the "T" portion of the dock would be oriented in a general north-south direction which causes the shadow of the dock to move rapidly as the sun passes overhead in a general east to west direction. This would tend to minimize the effect of shading on the seagrass of the dock itself, particularly with regard to the approach ramp portion of the dock which is relatively narrow. That portion of the dock extending toward the shore runs in an east to west direction and would not exhibit the same rapidly moving shadow, but the central portion of the approach walkway has been elevated to such an extent that light reaching under the dock from both sides will be sufficient to allow photosynthesis of the seagrasses under the dock, although not for as long a period of the day nor at the same rate as would be the case if the dock were not present. The Petitioner asserts that its voluntary relocation of the "T" shaped portion of the dock from an area of dense sea grass to a moderately populated sea grass bed plus the proposed bow-in mooring of boats so as to alleviate propellor damage to the seagrass, together with its view concerning the prevailing water depth at the end of the dock, will serve to prevent damage to the seagrass at the end of the "T" dock where the boats will be moored. It has been shown, however, that the mooring of boats whether bow-in or otherwise will still create a significant amount of shading of the bottom which, together with the shading caused by the "T" dock as well as the associated finger piers will retard or prevent photosynthesis to some extent, especially where boats are moored for days at a time without moving. This will significantly reduce the marine productivity attributable to the seagrass by retarding its natural function or, in some cases, killing it with the resultant loss of the detrital production as well as carbon production, the former being crucial to the proper functioning of the marine food chain in the area. If the seagrass is damaged or extinguished by the shading effect, prop scouring and washing, and/or settlement of turbidity on the seagrass, or a combination of these factors, not only will its productivity be lost, but the biological diversity of marine life in the area will be reduced as it relates to those vertebrate and invertebrate marine animals which depend on seagrass as a food source either directly or indirectly. Dr. Roessler, for the Petitioner, opined that the attached biological communities or "fouling" organisms such as barnacles which would form on the dock pilings, if they were installed, would provide habitat for marine life and invertebrates and thus enhance the biological diversity of the area. These fouling organisms which attach to pilings, however, represent a very narrow portion of the potential marine biological diversity of life forms in an area such as this. Their advent on the pilings, should the pilings be installed, would not mitigate for the loss of important marine habitat and resultant species diversity that elimination of this portion of the seagrass beds would pose. Thus, reasonable assurances have not been established that significant adverse impact to the Benthic Community in the form of damage or elimination of the seagrass beds and their dependent biota will not occur due to shading and propellor scouring, dredging and washing occasioned by the installation of the docking facility. Respondent's expert witnesses Sheftal, Barth, and Dentzau uniformly expressed a concern for propellor scarring, dredging and prop washing of the seagrass beds caused by an improper operation of boats in the project area where water is too shallow over the grass beds to protect them from the resultant propellor damage. In this regard, the Petitioner's own experiments with actual boats indicated that approximately one to 1 1/2 feet of water will remain between the bottom of the sound and the boat propellors at the end of the "T" dock for the general type and size of boats which will use the dock, even assuming that the boats are moored bow inward, thus taking maximum advantage of the deepest water possible under the propellors when a boat engine is started. Respondent's witness Dentzau performed a test with a 21 foot boat with an approximately 100 horsepower outboard engine running it in both forward and reverse at the "T" end of the dock. He was able to readily generate a "plume" of turbidity consisting of sand and other bottom material suspended in the water by the scouring action of the propellor. Although it was demonstrated for water quality parameter considerations that this turbidity plume did not violate the water quality standards for turbidity, it obviously shows that over time the turbidity suspended by boat propellors will settle on the seagrasses and other bottom dwelling biota to their detriment and, more immediately important, demonstrates that prop washing and scouring will occur by boats even if moored bow-in at the presently proposed site of the "T" shaped portion of the dock. The Petitioner proposes by the configuration of its "L" shaped dock in conjunction with the IT" shaped dock, as well as with buoy lines, to keep boat traffic away from the dense grass beds surrounding the proposed dock site and over which the walkway will extend. The Petitioner will mark the entrance channel to the marina itself to keep boats from straying over adjacent grass beds. It has not been demonstrated, however, what steps can be taken to effectively prevent boats from approaching the side of the proposed dock around the ends of the buoy lines and over the dense grass beds toward prohibitively shallow water where prop scouring and scarring will occur. Further, although the Petitioner will mark the entrance channel to the marina itself to keep boats from straying over adjacent dense grass beds, the likelihood of propellor damage to the grass beds in the vicinity of the end of the "T" dock has been exacerbated by the concentration of boat traffic which will result by installation of that dock, over waters at the mooring site which are of insufficient depth to protect the grass bed at that location from scouring and washing from boat propellors. In view of these reasons, significant adverse impacts to the Benthic Communities and especially to the grass beds themselves will result by installation of the docking facility at the site proposed, primarily because of insufficient water depth for safe operation of boats in relation to the well-being of the grass beds in the vicinity of the end of the dock and because of the shading which will result by installation of the "T" shaped portion of the dock in conjunction with the boats to be moored to it and the finger piers between the boat slips attached to it. WATER QUALITY The Respondent, through its water quality expert witness, Doug Frye, expressed the concern that the proposed project would violate Rule 17-3.051, Florida Administrative Code, which requires that the State's waters be free from pollutants above a certain level measured by various accepted and codified scientific methods of measurement. In this regard, the primary concern of the Department is bacteriological quality as well as turbidity resulting from boat operation. The turbidity standards contained in the above Rule provides that State waters not exceed 29 nephelometric turbidity units above the natural background level. The Respondent contends that this level will be exceeded as a result of operation of boats in the vicinity of the dock. The Petitioner, however, presented a soils analysis and silt settling study which showed that bottom materials in the area involved consist of sand, with some finely pulverized shell and that this material settles very rapidly after being disturbed with little silt remaining in suspension a significant period of time after the disturbance. This is primarily because the level of organics in the bottom substrate is very low at this site. In this connection, the Petitioner's expert witness, Mr. Sheffield, anchored a 16 foot boat with a 40 horsepower outboard motor in the docking area of the proposed project. He operated the boat at 1,000 RPM for an extended period of time while measuring the resultant turbidity. The results of his measurements showed turbidity to be in the range of 5-11 NTUs. The Respondent's witnesses, however, operated a larger 21 foot boat at the location of the "T" shaped portion of the dock maneuvering it back and forth with a fairly large outboard motor in the 100 horsepower class, which might be presumed to be typical of the boats which will be using the proposed facility. The maneuvering of the boat with the larger engine in this shallow water created a clearly visible plume of turbidity shown by photographs introduced into evidence by the Respondent. In fact, however, although the turbidity plume was clearly visible, the Respondent's own direct measurement of turbidity taken from within the plume immediately after it was generated was 23.8 NTUs, still below the State standards for violations as to turbidity. The existing marina facility has a fuel dock and has adopted a fuel spill contingency plan. There will be no fueling of boats nor fuel kept at the proposed docks. Nevertheless, marinas were established to be a known source of discharge of oils and greases and the presence of more boats utilizing all the dock facilities, especially during fueling and maintenance procedures, will result in additional oils and greases being deposited in the water. Even if there is no fueling facility planned for the proposed docks, the additional boats represented by the 25 additional slips sought to be approved will have to be fueled and likely at the existing facility. This will heighten the risk of fuel, oil and grease spills. In this regard, it must be remembered that the present marina and the proposed docking facilities are in outstanding Florida waters in which no degradation of ambient water quality is permitted. In this context then, the Petitioner/Applicant has, not provided reasonable assurances that pollution levels for oils and greases will not increase as a result of the potential addition of 25 boats to this marina facility. A substantial issue has been raised in this proceeding concerning water quality as it relates to the bacteriological standard. It has been established that this marina is presently a source of discharge of fecal coliform organisms which frequently are present in sufficient concentrations so as to violate the standard for that organism for Class II waters. Fecal coliform bacteria are accumulated in the bodies of shellfish. The shellfish themselves are not harmed, but contaminated shellfish can accumulate concentrations of as much as 100 times the ambient fecal coliform bacterial levels present in the waters they inhabit. Fecal coliform bacteria can cause extreme illness in human beings, sometimes even paralysis and death. Fecal coliform bacteria in State waters results from the deposition therein of human or animal waste. The Petitioner maintains a sewage pumpout station located at its fuel dock with a direct connection to its sanitary upland sewer system, as well as a portable sewage pump that can be moved to each boat slip for pumping out of toilets or "heads" on boats. Upland fish cleaning stations will additionally be provided with the proposed docks so as to prevent refuse from fish cleaning activities being deposited into the waters of the cove. The fact remains, however, that there presently exist high levels of fecal coliform organisms in the waters of the cove at the marina site, in the above noted violative concentrations on repetitive occasions. The presence of boats moored in the marina with "heads" aboard are a known discharge source of fecal coliform organisms. The Petitioner proposes to restrict boats using the facility to those boats without marine heads aboard or requiring those with heads to keep them locked or otherwise not discharge them into the waters of the marina. If boats utilizing the marina have toilets aboard, however, there is a substantial likelihood that at some point those toilets will be discharged into the waters of the cove before any of the Petitioner's monitoring personnel are aware of it. The problem is thus one of enforcement. In this regard, it is established that even with the sewage pumpout station and the portable sewage pumpout device, that there are a number of "live-aboard" boats with marine heads in the marina at the present time and customarily. This has caused the above found violations of fecal coliform, Class II water standards. Although the Petitioner proposes to restrict boats at the proposed docking facility to those less than 25 feet in length and to establish a monitoring program by the marina management personnel to assure that the boats with heads only contain heads approved by Coast Guard regulation, reasonable assurances have still not been established that the enforcement plan proposed can be effective in ensuring that no marine heads or other sources of coliform bacteria will be discharged into the waters of the cove at the project site. The plan proposed by the Petitioner simply did not ensure that boats having marine heads will not use the marina and that those persons using boats so equipped will not, on some occasions, discharge the heads into the waters of the marina at the project site nor that spills will not result in the sewage pumping-out process. The Respondent's expert witness, Mr. Porter, confirmed that most fishing boats of the open "center console" variety of 25 feet length or less do not contain marine heads, nevertheless, he established that in his experience monitoring marinas of this sort, the restrictions against marine heads of the non-approved variety and the attempted restriction against boats discharging the contents of their heads into the waters of the marina cannot be effectively enforced nor was it established that fishing boats without marine heads will be the only type of boat to use the proposed docking facilities. Accordingly, the waters of the cove at the marina site and project site are in frequent violation of the fecal coliform and total coliform parameter for Class II waters and reasonable assurances have not been provided that the fecal coliform bacterial levels will not increase as a result of the installation and operation of the proposed facility with its attendant boats. Because of the likelihood of shellfish contamination by fecal coliform bacterial levels which will likely increase if the proposed project is constructed and operated, together with the loss of marine habitat and productivity posed by the harm likely to result to the seagrass beds in the vicinity of the proposed facility due to attendant boat operation, it has been shown that the water quality parameter for biological integrity in these Outstanding Florida Waters will likely be degraded. The "Diversity Index" of marine microinvertebrates in the area of the affected seagrass beds will likely be reduced below 75 percent of background levels. Therefore, in the context discussed above, the proposed construction and operation of the 25-slip marina facility with the "T" dock will lower ambient water quality in these outstanding Florida waters and will result in violations of State water quality standards for Class II waters in the above particulars. SHELLFISH HARVESTING Mr. William Porter of the Department of Natural Resources Bureau of Shellfish Sanitation established that the cove where the project would be located is closed to the taking of shellfish as a result of the contamination or potential for contamination of shellfish by coliform bacteria contained in fecal material. His Department's water quality sampling confirmed the elevated levels of fecal coliform bacteria in the cove on repetitive occasions. This elevated level of coliform organisms was shown to result from improper operation of marine toilets upon vessels using the marina at the present time. Because of the potential for contamination from vessels discharging fecal material, Mr. Porter established that the Department would likely close an area 50 percent larger than the present shellfish harvest closure area as a result of a 50 percent increase in the number of boats capable of using the marina if the proposed project is built. Mr. Porter acknowledges that if it could be assured that boats using the marina did not contain heads, the increased area of closure might be lessened after this project were built. He also established as pointed out above that such restrictions on boats containing heads from using the proposed boat slip is very difficult to enforce. Even with the present central sewage pumpout facilities and portable pumpout equipment at the existing marina, the marina still has failed to comply with fecal and total coliform standards for Class II waters on a repetitive basis. The management of the present marina has allowed live-aboard boats at the marina even though it has posted warning signs against boat owners discharging toilets in the cove waters. Mr. Porter also acknowledged that the Boca Grande North Marina, owned by Gasparilla Pass, Inc., was recently permitted by the DER and constructed and has not yet resulted in the Department's closing an additional area to the taking of shellfish. The area the marina is situated in, however, is only "conditionally approved" for the taking of shellfish, meaning that it is subject to closer monitoring by the DNR with a view toward the possible necessity of closing waters in the area of that marina. It was not established, however, how the fecal coliform or total coliform levels in the waters adjacent to that marina compare to the existing marina or the site of the proposed docking facilities at the existing marina, nor what conditions might prevail which would render that other marina a comparable site to -be used as a relevant demonstration of what conditions might be expected at the present marina if the proposed project were built and operated. Thus it has been shown that even though the Petitioner proposes limiting the size of boats at the proposed facility and closely inspecting and regulating any marine heads on boats using the facility to make sure they comply with Coast Guard regulations, it has not been demonstrated that the additional deposition of fecal coliform bacteria in the waters often the cove will be adequately prevented by the proposed enforcement measures. It is thus reasonably likely that the construction of the proposed project will lead to the closing of an additional area of water which is presently approved for shellfish harvesting. The closure of shellfish harvesting in waters is contrary to the public interest in terms of recreational values, fishing and marine productivity and others of the seven public interest criteria quoted below. Further, the contamination of shellfish, which can cause severe illness or even death in human beings, is clearly contrary to the public interest and there is a substantial likelihood that shellfish contamination is already occurring in the area due to the characteristic of shellfish by which they accumulate or store fecal coliform organisms to reach injurious levels for human consumption even though the shellfish themselves appear to be healthy. The area of the proposed project is extensively used for commercial and recreational shellfish harvesting at the present time, outside the immediate closed waters of the marina within the cove. PUBLIC INTEREST Section 403.918(2) (a) (1-7) requires that the Petitioner provide reasonable assurances that the proposed project will be clearly in the public interest. The public interest considerations of those seven criteria concern whether the project will adversely affect public health, safety or welfare or property of others: whether it will adversely affect conservation of fish and wildlife or their habitats; whether it will adversely affect the fishing or recreational values or marine productivity in the project vicinity; whether it will be of a temporary or permanent nature; and the effect on the current condition and relative value of functions reformed by areas affected by the project. Although Petitioner's witness, Dr. Roessler, related that the attached fouling communities, such as barnacles, which would form on the proposed docks and pilings would increase the diversity of marine habitat available, that will not offset the loss of marine habitat occasioned by the increasingly detrimental effect imposed by the project and the operation of it on the seagrass beds, in the manner discussed above. The fouling communities expected by Dr. Roessler to occur on the pilings to be installed, will not provide, nor replace the value of, the detritus (seeds and leaves) produced by the seagrass which would be lost, which is an important food source for marine organisms in the upper portion of the food chain in the area, some of which organisms include fish and have a high recreational value and commercial value. The importance of detrital production by the seagrass beds outweigh the value of the addition of the fouling communities on the pilings. In fact, the total diversity of marine species actually might decline even though the fouling organisms would be added with the installation of the pilings, once the harmful effects on the seagrass beds begin to occur after installation and operation of the proposed facility and over the life of the marina. Thus, in this regard, the project is contrary to the public interest and certainly not clearly in the public interest. Additionally, there is a substantial likelihood that shellfish may be contaminated which, in turn, will have an adverse effect on the public health, safety and welfare. The harvesting of shellfish has a substantial recreational and commercial value and is an important aspect of the marine productivity in the vicinity of the project. The heightened coliform bacteria production caused by the resultant expansion of the marina will adversely affect fishing and recreational values and marine productivity and will degrade the current condition and relative values of the functions performed by the marine habitat in the vicinity of the proposed dock. Finally, there is no question that the project will be of a permanent nature. The various detrimental effects on the public interest consideration found herein are rendered more critical by the fact that there is no truly redeeming public purpose or use for this project. This will be essentially a private docking facility designed to serve the residents of the applicant's attendant real estate development. The upland development is a condominium development and the slips will be owned by the condominium owners and not open to the general public, although the Petitioner did make vague reference to an idea that some slips might be rented to members of the public. This was not established to be the case and, in any event, the primary purpose of the boat slips is to enhance the desirability of the upland development. Although the Petitioner emphasizes that the advent of the additional slips might help attract as much as $1,000,000 additional revenue to the Boca Grande area by assisting the applicant in hosting the Annual Tarpon Release Fishing Tournament, it is also true that any development in a coastal area will likely represent some economic benefit to that area, but there is also a substantial economic and recreational benefit to maintaining the outstanding Florida waters involved in an undegraded condition and maintaining the present Class II, approved shellfish harvesting area unimpaired. Thus, although the proposed docks might be used for sponsorship of the subject fishing tournament and it can be said that that would enhance fishing and recreational value to some extent, it was not established that the tournament will not occur and that the extra revenue and enhancement of fishing and recreational value it will generate will not occur in the Boca Grande area anyway. The potential detrimental effects of the proposed project, delineated above, will also decrease fishing and recreational value over many years and for the life of this project in terms of harm to the marine habitat occasioned by the constant deposition of oils, greases and fuel and coliform bacteria in the Class II waters involved, as well as the other detrimental aspects of the project discussed above. It has not been established that the economic benefits of the fishing tournament and the addition of the boat slips will not occur but for the installation of this proposed docking facility. Although it may help relieve a shortage of marina slips in the area, it was not shown that this is the only alternative to relief of that shortage. ALTERATION OF MANGROVES The original site for the access ramp or walkway to the "T" shaped portion of the dock was selected through an on site inspection conducted in part by Respondent's witness, Andrew Barth. The mangrove area is less dense at the site of the walkway's penetration of the mangrove belt than surrounding mangrove areas. Petitioner's witness, Dr. Roessler, has participated in many studies involving mangroves in South Florida. He identified each tree within the proposed dock pathway. Through narrowing of the dock walkway to five feet and the relocation agreed upon by the Petitioner and Mr. Barth, it has been established that only three mangrove trees will be removed by the construction of the dock. Thus, there will be no substantial alteration or degradation of the mangrove fringe area at the project site. DOCK CONSTRUCTION Mr. C. W. Sheffield was accepted as an expert witness in the field of marine engineering. He established that the pilings will be installed using a 6 to 8 inch chisel point driven into the bottom of the sound with an air hammer. There will be no augering or other means of excavation used which would generate a substantial amount of turbidity. The air hammer will result in compaction of sediments by forces radiating out from the piling as it is driven, with the counteracting sheer force caused by the piling installation causing a slight bulging in the bottom around each piling, but nothing more. There will be no significant movement of sediment in the water column. The construction of the dock will take place moving from the land waterward, utilizing equipment mounted on the dock. Thus, construction barges will not be required to come into the shallow grass bed area with the potential for its damage. Small barges would be used in the deeper waterward portions of the project to install the mooring pilings off-shore from the end of the "T" dock. Turbidity curtains will be used during all construction, surrounding all phases of the construction work. In Mr. Sheffield's experience, such measures have resulted in no violation of the State turbidity standards at other similar projects, and are not likely to with this one. CUMULATIVE IMPACT A number of permits have been issued by the Department for docking facilities to the north of this proposal and other facilities are already in existence. Dr. Roessler opined that the geographic location of these, as well as that of this project, in light of the numerous inlets and high degree of tidal flushing and exchange through the inlets, will not result in any adverse cumulative impact occasioned by the addition of the proposed dock with 25 slips to those already existing in the Sound. It is noteworthy that, with regard to the potential this project poses for damage to the seagrass beds and for heightened production of fecal coliform bacteria, with the environmental damage attendant thereto, no proof was offered by either party concerning those considerations or effects to the extent that they might or might not exist at other marinas or docking facilities in the Gasparilla Sound area. There has been no proof to establish any cumulative impact.
Recommendation Having considered the foregoing Findings of Fact and Conclusions of Law, the testimony and evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is, therefore RECOMMENDED that a Final Order be entered denying the subject permit application, except for that portion seeking authorization for the "L" shaped dock and six boat slips attendant thereto, which should be granted with the agreed-upon conditions and restrictions contained in the above Findings of Fact. DONE and ENTERED this 19th day of December, 1986 in Tallahassee, Florida. P. MICHAEL RUFF, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 19th day of December, 1986. APPENDIX Petitioner's Proposed Findings of Fact: The rulings on the Petitioner's Proposed Findings of Fact are numbered below in the order in which they were presented (unnumbered) by the Petitioner. 1-6. Accepted Accepted, excepted for the last two sentences which are immaterial Accepted. Accepted, except as to the proffered material import of the last sentence. Accepted, except the first sentence which is not in accord with the greater weight of the evidence. Accepted, except as to the last three sentences which are not supported by preponderant evidence 12-16. Accepted. Rejected, as not in accordance with the preponderant evidence of record. Rejected as not being in accordance with the greater weight of the evidence. Accepted, but not as dispositive of any material issue presented. Accepted, except as to the last sentence which is rejected as being contrary to the preponderant evidence adduced. Accepted, except as to the third and last sentences which are rejected as being contrary to the preponderant evidence adduced. Accepted, except for the third and last two sentences which are rejected as to their purported import in the resolution of the material issues presented and as being not in accordance with the preponderant evidence adduced. Accepted. Accepted, but not as dispositive of the jurisdictional issue concerning "dredging and filling" for the reasons found in the Recommended Order. Accepted. Accepted. Respondent's Proposed Findings of Fact: 1-18. Accepted 19. Accepted, but not dispositive of any material issue presented. 20-25. Accepted. Rejected as not being a complete finding of fact. Accepted. Accepted, except as to the issue of water dept which would actually be less at the critical location involved. Accepted. Accepted, but not material. 31-31. Accepted. 35. Accepted, but not truly material in this de novo proceeding. COPIES FURNISHED: Robert A. Routa, Esquire 217 South Adams Street Tallahassee, Florida 32302-1386 Bradford L. Thomas, Esquire Assistant General Counsel Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32399-2400 Victoria Tschinkel, Secretary Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32399-2400 Mary F. Smallwood, Esquire General Counsel Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32399-2400 Stephen Fox, Director Division of Environmental Permitting Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32399-2400 ================================================================ =
Findings Of Fact As planned, Phase I of Foxwood Lake Estates will consist of 300 mobile homes, which would require treatment of up to 45,000 gallons of sewage per day. The proposed sewage treatment plant would have a capacity of 46,000 gallons per day and would be capable of expansion. It would discharge treated, chlorinated water into a completely clay-lined polishing pond that has been designed for the whole of Foxwood Lake Estates at build-out; capacity of the polishing pond would be three times the capacity necessary for Phase I by itself. From the polishing pond, water is to flow into one or both of two evaporation-percolation ponds, either of which would be big enough for all the sewage expected from Phase I. The sides of these ponds would be lined with clay and a clay plug would constitute the core of the dike on the downslope side of each pond. According to the uncontroverted evidence, effluent leaving the treatment plant for the polishing pond would have been effectively treated by the latest technology and would already have been sufficiently purified to meet the applicable DER water quality requirements. The applicant proposes to dig the triangular polishing pond in the northwest corner of the Foxwood Lake Estates property, some 400 feet east of the western property line. The evaporation-percolation ponds would lie adjacent to the polishing pond along an axis running northwest to southeast. Their bottoms would be at an elevation of 164.5 feet above mean sea level and they are designed to be three feet deep. The evaporation-percolation ponds would lie some 300 feet east of the western property line at their northerly end and some 400 feet east of the western property line at their southerly end. A berm eight feet wide along the northern edge of the northern evaporation-percolation pond would be 50 feet from the northern boundary of the applicant's property. Forrest Sawyer owns the property directly north of the site proposed for the evaporation-percolation ponds. He has a house within 210 feet of the proposed sewage treatment complex, a well by his house, and another well some 300 feet away next to a barn. Two or three acres in the southwest corner of the Sawyer property are downhill from the site proposed for the ponds. This low area, which extends onto the applicant's property, is extremely wet in times of normal rainfall. Together with his brother and his sister, Charles C. Krug owns 40 acres abutting the applicant's property to the west; their father acquired the property in 1926. They have a shallow well some 100 feet from the applicant's western property boundary, and farm part of the hill that slopes downward southwesterly from high ground on the applicant's property. Sweetgum and bayhead trees in the area are also a money crop. Charles C. Krug, whose chief source of income is from his work as an employee of the telephone company, remembers water emerging from this sloping ground in wet weather. Borings were done in two places near the site proposed for the ponds. An augur boring to a depth of six feet did not hit water. The other soil boring revealed that the water table was 8.8 feet below the ground at that point. The topsoil in the vicinity is a fine, dark gray sand about six inches deep. Below the topsoil lies a layer of fine, yellow-tan sand about 30 inches thick. A layer of coarser sand about a foot thick lies underneath the yellow-tan sand. Beginning four or five feet below the surface, the coarser sand becomes clayey and is mixed with traces of cemented sand. Clayey sand with traces of cemented sand is permeable but water percolates more slowly through this mixture than through the soils above it. The applicant caused a percolation test to be performed in the area proposed for the ponds. A PVC pipe six feet long and eight inches in diameter was driven into the ground to the depth proposed for the evaporation-percolation ponds and 50 gallons of water were poured down the pipe. This procedure was repeated on 14 consecutive days except that, after a few days, the pipe took only 36 gallons, which completely drained into the soil overnight. There was some rain during this 14-day period. Extrapolating from the area of the pipe's cross-section, Vincent Pickett, an engineer retained by the applicant, testified that the percolation rate of the soils was on the order of 103 gallons per square foot per day, as compared to the design assumption for the ponds of 1.83 or 1.87 gallons per square foot per day. Water percolating down through the bottoms of the evaporation- percolation ponds would travel in a southwesterly direction until it mixed with the groundwater under the applicant's property. It is unlikely that the ponds would overflow their berms even under hurricane conditions. Under wet conditions, however, the groundwater table may rise so that water crops out of the hillside higher up than normal. The proposed placement of the ponds makes such outcropping more likely, but it is impossible to quantify this enhanced likelihood in the absence of more precise information about, among other things, the configuration of the groundwater table.
Recommendation Upon consideration of the foregoing, it is RECOMMENDED: That DER grant the application on the conditions specified in its notice of intent to issue the same. Respectfully submitted and entered this 17th day of December, 1980, in Tallahassee, Florida. ROBERT T. BENTON, II Hearing Officer Division of Administrative Hearings Room 101, Carlton Building Tallahassee, Florida 32301 Telephone: 904/488-9675 FILED with the Clerk of the Division of Administrative Hearings this 17th day of December, 1980. COPIES FURNISHED: Andrew R. Reilly, Esquire Post Office Box 2039 Haines City, Florida 33844 Walter R. Mattson, Esquire 1240 East Lime Street Lakeland, Florida 33801 David M. Levin, Esquire Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32301
The Issue The issues to be determined in this proceeding are: whether the challengers have standing; and (2) whether Proposed Rule 40E-8.221(2) is an invalid exercise of delegated legislative authority.
Findings Of Fact Based on the parties' stipulations and the evidence adduced at the final hearing, the following findings of fact are made: The Parties The District is a government entity existing and operating pursuant to chapter 373, Florida Statutes, as a multi- purpose water management district. The District has the power and duty to adopt MFLs consistent with the provisions of part I of chapter 373. Sanibel is a barrier island sanctuary in Lee County and a duly-formed municipality with a population of more than 6,000. Sanibel is situated at the mouth of the Caloosahatchee River, within the Caloosahatchee's greater estuarine area. Sanibel is known primarily for its natural beauty, including clear blue waters, shell beaches, world-class sport fisheries, and wildlife refuges. That is why tourists come from around the globe to visit Sanibel, and why Sanibel's residents move and remain there. Sanibel actively participated in the rulemaking process for the Proposed Rule from its inception. Sanibel submitted two technical comment letters to the District during the development of the Proposed Rule. Sanibel's natural resources director, James Evans, attended numerous public and technical meetings associated with the development of the Proposed Rule, speaking on the record at each of the public meetings prior to the adoption hearing by the District's governing board. The Town, located on Estero Island in Lee County, is also a barrier island community and duly-formed municipality with a population of more than 6,000. The Town is situated just south of the mouth of the Caloosahatchee River and on the southeastern edge of the Caloosahatchee River's greater estuarine area. The Town is known primarily for its natural beauty, including clear blue waters, shell beaches, world-class sport fisheries, and wildlife refuges. Cape Coral is a duly-formed municipality in Lee County and is the largest city between Tampa and Miami, with a population in excess of 150,000. Cape Coral is bordered on the south by the Caloosahatchee River and has over 400 miles of navigable canals and waterways, all of which are within the Caloosahatchee River's greater estuarine area. In addition, Cape Coral has an assigned load reduction allocation under the Basin Management Action Plan (BMAP) for the Caloosahatchee River Estuary (CRE) due to it being designated as impaired for dissolved oxygen and nutrients. Maintaining sufficient flow in the Caloosahatchee River would have a direct impact on Cape Coral's ability to meet its assigned load reduction allocation. In addition to living on or near the water, a substantial number of the residents of Sanibel, Cape Coral, and the Town engage in water-based recreational activities such as swimming, fishing, boating, kayaking, paddle boarding, bird watching, and nature observation in and around the Caloosahatchee River's greater estuarine area. Fort Myers is a duly-formed municipality in Lee County and has a population of approximately 80,000. Fort Myers is bordered by the CRE throughout its entire jurisdictional boundary. Fort Myers owns and maintains a yacht basin (Ft. Myers Yacht Basin), which includes a mooring field and an anchorage field in the Caloosahatchee River. Fort Myers presented testimony that commercial crabbing and recreational fishing have declined and that it has suffered economic harm due to water quality issues. Fort Myers owns the submerged land in the Caloosahatchee River from Marker 39 to Marker 58, and islands in the river. One such island will be used as a park for recreational activities such as canoeing, kayaking, and hiking for visitors to enjoy the Caloosahatchee River. Fort Myers also owns and operates piers and a public boat ramp within the Caloosahatchee River. Fort Myers' dock master has observed declines in seagrasses in the Caloosahatchee River during his 19-year career working at the Ft. Myers Yacht Basin. Fort Myers has adopted a Harbor Management Plan for the management of its mooring and anchorage fields in the Caloosahatchee River. Fort Myers has also been assigned a load reduction allocation under the BMAP for the CRE, and is responsible for a certain amount of pollution reduction over time. Bonita Springs is a municipality of more than 50,000 in Lee County. The borders of Bonita Springs include portions of Estero Bay, which, along with San Carlos Bay and the Caloosahatchee River, is part of the greater Lower Charlotte Harbor Estuary. Bonita Springs includes wildlife refuges, such as the Estero Bay Aquatic Preserve and Lovers Key State Park and Recreation Area. While Bonita Springs' strategic priorities include environmental protection and water quality, it does not have environmental staff or test water quality. Bonita Springs participates in Estero Bay Management and the Charlotte Harbor National Estuary Program (CHNEP). Bonita Springs provides financial assistance to the Caloosahatchee Citizen Sea Grass Gardening Project. Concerns regarding harm to the CRE and tape grasses are shared by a significant number of residents in Bonita Springs and Estero, including injury to the quality of life and recreational uses such as swimming, boating, and kayaking in the waterways. Estero is a municipality of more than 30,000 in Lee County. Estero borders the eastern portion of Estero Bay. Estero includes wildlife refuges, such as Estero Bay Aquatic Preserve and Koreshan State Park. While Estero has environmental policies, it does not have environmental staff or test water quality. Estero makes financial contributions to CHNEP. Estero is concerned that the Proposed Rule will affect its water quality, which could affect its residents' quality of life. Estero believes it could be harmed by poor water quality because its residents are portable retirees who can move away, or tourists who can choose not to visit. Captiva Island is situated at the mouth of the Caloosahatchee River, within the Caloosahatchee's greater estuarine area. CCP is a Florida not-for-profit corporation representing property owners, businesses, and the community of Captiva Island. Captiva Island is part of unincorporated Lee County and is located north of Sanibel. CCP has 200 financial contributors comprised of property owners, businesses, and residents on Captiva Island. CCP's mission includes protection of clean off-shore water, diverse and healthy marine life, and robust native vegetation along with the protection of mangrove fringe and water quality. CCP works with Lee County on provisions of the County's comprehensive plan, which include the quality of adjacent waters. CCP relied on the expertise of James Evans, the director of natural resources for Sanibel, and on the Sanibel- Captiva Conservation Foundation (SCCF). CCP was advised that the Proposed Rule was not sufficient to protect the environment and Vallisneria americana (Vallisneria) or tape grass during the dry season. Caloosahatchee River and Estuary The watershed of the Caloosahatchee River covers approximately 861,058 acres. The watershed consists of four sub-watersheds, three of which are upstream of the S-79 structure. The Tidal Caloosahatchee Basin sub-watershed (estuarine system) is downstream of the S-79 structure. The S-79 structure captures all the upstream discharges of fresh water that go into the estuarine system through the S-79 structure. Major tidal tributaries of the Tidal Caloosahatchee Basin are the Orange River and Telegraph Creek, which drain into the upper estuary downstream of the S-79 structure. Fresh water inflows from these and other tributaries also contribute fresh water into the estuarine system. The Caloosahatchee River was originally a natural watercourse running from its origin at Lake Flirt to San Carlos Bay. It is currently defined as the "surface waters that flow through the S-79 structure, combined with tributary contributions below S-79 that collectively flow southwest to San Carlos Bay." Fla. Admin. Code. R. 40E-8.021(2). Man-made alterations to the Caloosahatchee River began as early as 1884, but major alterations began in the 1930s with the authorization and construction of the C-43 Canal. The C-43 Canal runs 41.6 miles from Lake Okeechobee at Moore Haven, i.e., from the S-77 structure, to Olga, i.e., the S-79 structure. The C-43 Canal serves as a conveyance feature to drain water from the three sub-watersheds located upstream of the S-79 structure and convey regulatory discharges of water from Lake Okeechobee. In 1957, the United States Army Corps of Engineers (USACOE) prepared a report focused on drainage, flood control, and navigation needs of the Caloosahatchee River Basin, and one recommendation was construction of the S-79 structure. The key objectives of the S-79 structure were to eliminate undesirable salinity in the lower Caloosahatchee River, prevent the rapid depletion of water supplies, and raise the prevailing dry weather water table levels. The S-79 structure was constructed in 1965. It is a lock and dam structure that is also known as the Franklin Lock and Dam. The S-79 structure captures all upstream fresh water discharges that go into the CRE. The S-79 structure demarcates the head of the CRE, which extends 26 miles downstream to Shell Point, where it empties into San Carlos Bay in the southern portion of the greater Lower Charlotte Harbor Estuary. Most of this surface water flow takes a southerly route, flowing to the Gulf of Mexico under the Sanibel Causeway that crosses San Carlos Bay. When fresh water inflows are high, tidal action pushes some of this water back up into Matlacha Pass and Pine Island Sound. Additionally, some water exits to the south and flows into Estero Bay through Matanzas Pass. Salinity exhibits a strong gradient in the CRE. Changes in the watershed upstream of the S-79 structure have profoundly influenced the delivery of fresh water to the CRE. Runoff is now more variable with higher wet season flows and lower dry season discharges. Large volumes of fresh water during the wet season can flush salt water from the tidally-influenced sections of the water body, resulting in low salinity conditions throughout most of the CRE. In contrast, fresh water inflow at the S-79 structure can stop entirely during the dry season, especially during significant drought events. This results in saline intrusion that can extend upstream to the S-79 structure. Fluctuations of this magnitude at the head and mouth of the system cause mortality of organisms at both ends of the salinity gradient. Downstream of the S-79 structure, the CRE was significantly altered by multiple dredging activities, including the removal of extensive shoals and oyster bars. Seven automobile bridges, a railroad trestle, and the Sanibel Causeway were built between the 1880s and 1960s. A large canal network was built along the northern shoreline of the CRE in Cape Coral. To provide navigational access from the canal network to deeper water, multiple access channels were dredged within the CRE. Alterations to the delivery of fresh water combined with structural changes to the tidally-influenced sections of the water body have had lasting ecological consequences. These include the loss of extensive shoals and oyster bars, loss of a flourishing bay scallop fishery, and significant decline in seagrass cover in deeper areas. MFLs An MFL is the limit at which further withdrawals would be significantly harmful to the water resources or ecology of the area. The District's rules define significant harm as the "temporary loss of water resource functions, which results from a change in surface or ground water hydrology, that takes more than two years to recover, but which is considered less severe than serious harm." Fla. Admin. Code R. 40E-8.021(31). The rule further specifies that a water body's specific water resource functions addressed by an MFL are defined in the MFL technical support document. Id. MFLs are calculated using the best information available. The regulatory agency is required to consider changes and structural alterations to watersheds, and the constraints such changes or alterations placed on the hydrology of an affected watershed. Certain waterbodies may not serve their historical hydrologic functions and recovery of these waterbodies to historical hydrologic conditions may not be economically or technically feasible. Accordingly, the regulatory agencies may determine that setting an MFL for such a water body based on its historical condition is not appropriate. Caloosahatchee MFL For the CRE, MFL criteria were designed to protect the estuary from significant harm due to insufficient fresh water inflows and were not guidelines for restoration of estuarine functions to conditions that existed in the past. The MFL criteria consider three aspects of the flow in terms of potential significant harm to the estuary: (1) the magnitude of the flow or the volume of fresh water entering the estuary; (2) the duration of time that flows can be below the recommended level before causing significant harm; and (3) the return frequency, or the number of times the MFL can be violated over a number of years before it results in significant harm, recognizing that natural climatic variability will be expected to cause fresh water inflows to fall below recommended levels at some natural frequency. The CRE MFL initially adopted in 2001 was primarily based on the salinity tolerance of one valued ecosystem component (VEC). The VEC was Vallisneria americana or tape grass, a fresh water aquatic plant that tolerates low levels of salinity. A major assumption of this approach was that flow and salinity conditions that protect Vallisneria would also protect other key organisms in the estuary. The 2001 CRE MFL was based on a regression model for estimating the relationship between surface salinity measured at the Ft. Myers monitoring station located in the Ft. Myers Yacht Basin and discharge at the S-79 structure. Although the District monitors surface and bottom salinity at multiple stations in the CRE, the Ft. Myers monitoring station is located centrally in the CRE and at the historical downstream extent of the Vallisneria habitat. The Ft. Myers monitoring station also has the most comprehensive period of record of monitoring data available. The fixed data sondes that monitor surface and bottom salinity are located at 20 percent and 80 percent of total river depth measured at mean low water. The data sondes continuously measure temperature and specific conductivity and, depending on the manufacturer, contains programs that calculate salinity. Those calculations are based on standards recognized and used worldwide by estuarine, marine, and oceanographic scientists.1/ The regression model only implicitly included inflows from the Tidal Caloosahatchee Basin sub-watershed downstream of the S-79 structure. To address this, during the 2003 re-evaluation, a linear reservoir model of Tidal Caloosahatchee Basin inflows was developed. The regression model results showed that a total inflow from S-79 plus the Tidal Caloosahatchee Basin of about 500 cubic feet per second (cfs) was required to produce a salinity of 10 at the Ft. Myers monitoring station. Thus, the 2001 CRE MFL of 300 cfs measured at the S-79 structure would produce a salinity of 10 at the Ft. Myers monitoring station only with additional inflow from the downstream Tidal Caloosahatchee Basin sub- watershed. However, that additional inflow estimate was highly uncertain. The conclusion was that actual flow measurements over a period of time were needed in order to perform more robust calibrations for the new models that were being developed. The Re-evaluation The District's re-evaluation effort began in 2010 after the Conservancy of Southwest Florida filed a petition requesting review of the Caloosahatchee MFL. At the time, the governing board denied the petition but directed staff to undertake additional research and monitoring to ensure a future revision would be supported by the best information available. The first step was to review the September 2000 Final Peer Review Report (PRR) for the initial adoption. The 2000 PRR identified several items the District should consider, including a hydrodynamic salinity model, a numerical population model for Vallisneria, quantification of habitat value for Vallisneria, and documentation of the effects of minimum flows on downstream estuarine biota. The 2000 PRR documented concerns that the current MFL was based solely on the salinity tolerance of Vallisneria and recommended using multiple indicator species. To address those recommendations, the District conducted studies to evaluate multiple ecological indicators, such as zooplankton, aquatic vegetation, oysters, benthic communities, and blue crabs, in the Caloosahatchee from the S-79 structure to beyond Shell Point. In addition, the District collected flow data from the Tidal Caloosahatchee Basin sub-watershed for at least five years to develop watershed, flow, and hydrodynamic models that could properly simulate inflows and salinity responses. When the initial research was complete in 2016, the District published the Draft Science Document containing 11 component studies. In September 2016, the District held a two- day Science Symposium to present the 11 component studies and gather public comment. In response to public comment, the District performed additional evaluations, modeling, and updated the component studies to produce a Draft Technical Document. A Peer Review Panel reviewed the Draft Technical Document, which included the Draft Science Document. The Peer Review Panel has over 150 years of combined relevant scientific experience. The Peer Review Panel toured the CRE by air and water. The District also held a Peer Review Session to engage the public and obtain feedback. The Peer Review Panel's 2017 report (PRP report) stated that the District had "crafted a well-executed and well- documented set of field and laboratory studies and modeling effort" to re-evaluate the CRE MFL. The PRP report supported the 11 component studies, the modeling, the evaluations, and the initial proposed rule language. The Final Technical Document published in January 2018 incorporated five different models and additional science, examining the entire watershed and the criteria itself. The Final Science Document was Appendix A to the Final Technical Document and contained the scientific research and analysis that was done for the 11 component studies, the modeling, and the additional scientific analyses performed in response to public and stakeholder input. The District initiated rule development in December 2017. Rule development workshops were held in February and June 2018 and a stakeholder technical meeting was held in May 2018. The District validated the comments after each workshop and meeting, and revised the proposed rule language. The District published its Notice of Proposed Rule on July 23, 2018.2/ At its September 13, 2018, meeting, the District's governing board held a public hearing on the Proposed Rule. The mayors of Sanibel, Cape Coral, and the Town publicly commented at the hearing. After considering public comments, the governing board adopted the Proposed Rule. The District documented and responded to each public comment, memorializing the information in the Final Technical Document. Later, after the rule workshops and May 2018 technical meeting, the District prepared and presented all of the updated information, including public comment, at the September 2018 adoption hearing. Thus, the District's re-evaluation process was open and transparent. The Re-evaluated Caloosahatchee MFL The science supporting the re-evaluation involved a comprehensive assessment of the effects of diminished dry season fresh water inflows on the CRE. The dry season was chosen for two reasons. First, because it is well-established that the upstream migration of salt combined with reduced fresh water inflow alters the health and productivity of estuarine habitats. Second, because the dry seasons are the times when the current MFL criteria are likely to be exceeded or violated. The 11 component studies targeted specific concerns regarding physical and ecological characteristics. Together they offered a holistic understanding of the negative effects of diminished fresh water inflow on estuarine ecology. The re-evaluated MFL criteria were developed using a resource-based approach. The approach combined the VEC approach and the habitat overlap concept. The habitat overlap approach is based on the idea that estuaries serve a nursery function and salinity determines the distribution of species within an estuary, including distribution during different life stages. The combined approach studied the minimum flow requirements of the various indicator species in terms of magnitude, duration, and return frequency, resulting in the following three aspects of the flow: (1) for magnitude, a 30-day moving average flow of 400 cfs measured at the S-79 structure; for duration, an MFL exceedance occurs during a 365-day period when the 30-day moving average flow at S-79 is below 400 cfs and the 30-day moving average salinity exceeds 10 at the Ft. Myers salinity monitoring station; and (3) for return frequency, an MFL violation occurs when an exceedance occurs more than once in a five-year period. The magnitude component is based on the salinity requirements of Vallisneria, along with results from the 11 studies modeling salinity and considering the salinity requirements of the other VECs. The duration component is based mainly on the estimates of rate of loss of Vallisneria shoots when salinity rises above 10 and the recovery rate of the shoots when salinities fall back below 10. Return frequency was determined based on long-term rainfall records rather than flow measurements from the S-79 structure, which the PRP report felt was well justified. In addition to the component studies, the re-evaluated MFL criteria and existing recovery strategy were evaluated using a suite of hydrologic and ecological models simulating long-term fresh water inflow to the CRE associated with varying management options, the resulting salinity in the CRE, and the ecological response of indicator species that are sensitive to low fresh water inflows. Five models were utilized. Three models simulated fresh water inflows to the CRE: two for S-79 flows; and one for Tidal Caloosahatchee Basin sub-watershed flows. The other two models were a three-dimensional hydrodynamic salinity model and a Vallisneria model. Tidal Caloosahatchee Basin sub-watershed has a number of tributaries that drain fresh water into the CRE. The flow at several of the tributaries was monitored for a five-year period. The measured flow was used to calibrate a watershed model and conduct a long-term simulation. The results showed an average fresh water inflow for all seasons of approximately 430 cfs. The average fresh water inflow during the dry season was 245 cfs while the wet season average fresh water inflow was 613 cfs. Fresh water inflow from the Tidal Caloosahatchee Basin sub- watershed was approximately 20 percent of total fresh water inflow to the CRE while 80 percent was released through the S-79 structure. Petitioners' and Intervenors' Objections 400 cfs Is Too Low Sanibel relied on a memorandum prepared by Dr. David Tomasko (Tomasko report) concerning his company's review of the January 2018 Final Technical Document supporting the Proposed Rule. The Tomasko report, dated October 23, 2018, was in the form of a "technical memorandum" outlining "preliminary findings." The Tomasko report was admitted as a joint exhibit; however, Dr. Tomasko did not testify at the final hearing. The Tomasko report is hearsay that was not used to supplement or explain competent direct evidence. Although hearsay is admissible in this proceeding, it cannot be the sole basis for a finding of fact.3/ See § 120.57(1)(c), Fla. Stat. The District's expert witnesses, who testified at the final hearing, explained that ten of the 11 component studies identified average indicator flows at S-79 ranging from 237 to 545 cfs with standard deviations ranging from plus or minus 57 to plus or minus 774 cfs.4/ The District's experts performed three different evaluations of those flow results. They identified the mean of all the means, calculated the median of the means, and performed a probability density function. The flow results for each of the three evaluations were 381 cfs, 400 cfs, and 365 cfs, with standard deviations that ranged from plus or minus 277 cfs to plus or minus 706 cfs. The District's experts testified that the three flow results are indistinguishable from a statistical point of view. The District chose 400 cfs because it was the highest flow result, and, therefore, the most protective of the three. The Petitioners and Intervenors failed to present evidence that showed any deficiencies in the District's component studies, hydrologic, hydrodynamic, or statistical modeling, or analysis of compliance data. The preponderance of the evidence established that the District used the best available science to calculate the MFL criteria. The District did not act arbitrarily or capriciously when it chose 400 cfs as the magnitude component of the MFL criteria. Inclusion of Salinity in the MFL Criteria The preponderance of the evidence also established that Vallisneria continues to be a particularly useful indicator of environmental conditions in the CRE. It supports essential ecological goods and services, is sensitive to salinity fluctuations at the ecosystem scale, and has value to a variety of stakeholders. The location of Vallisneria habitat in the upper CRE and its negative response to increased salinity made it an excellent candidate as an ecological indicator for fresh water inflow. A combination of field monitoring, mesocosm studies, and modeling results allowed the application of Vallisneria responses as a platform to quantify the effects of high salinity duration in the upper CRE. Component Study Eight reviewed the development and initial application of a simulation model for Vallisneria in the CRE. The Vallisneria model was used to evaluate the salinity conditions that led to net annual mortality, or, in other words, the duration of high salinity exposure that led to decreased Vallisneria shoots versus the duration of low salinity conditions required for recovery. Component Study Seven included an analysis of the relationship between the number of consecutive days where salinity at the Ft. Myers monitoring station was greater than 10 and the percentage of initial Vallisneria shoots remaining at the end of each high salinity period. To further evaluate the duration element associated with the MFL criteria, the field monitoring data contained in Component Study Seven was evaluated with the mesocosm and modeling results. All three sources were analyzed similarly to derive a combined curve showing high salinity exposure duration that is significantly harmful to Vallisneria. The model also provided information that was used to quantify the duration of low salinity conditions required for Vallisneria to recover a relative fraction of shoots after high salinity exposure. Merging the exposure and recovery evaluations facilitated a determination of the unfavorable salinity duration that could significantly harm Vallisneria habitat. With significant harm defined as the environmental harm from which two years are required to recover, the determination was that Vallisneria should experience no more than 55 consecutive days of salinity greater than 10. However, stakeholders expressed concerns regarding the percentage loss of Vallisneria habitat after 55 days of high salinity exposure. In response, the District conducted further analysis of modeling results and revised the duration component to accept the stakeholder recommendation, now expressed in the Proposed Rule, of a 30-day moving average salinity greater than 10. The Petitioners and Intervenors argued that by expressing the MFL as a "flow plus salinity component" the Proposed Rule enlarges, modifies, or contravenes the specific provisions of law implemented. However, the duration component is part of compliance and represents the duration of time that flows can be below the recommended level before causing significant harm to the indicator species Vallisneria. The MFL in the Proposed Rule is a 30-day moving average flow of 400 cfs measured at the S-79 structure. Flow is both measured and operationally controlled at the S-79 structure. However, as previously found, there are other sources of fresh water entering the CRE downstream of the S-79 structure. The District does not control and cannot control these downstream sources, which modeling reveals contribute approximately 20 percent of total fresh water inflow to the CRE. By including salinity, the District can account for fresh water inflows coming from the tidal basin when there are low or no flows at S-79 since the significant harm threshold in the CRE is directly related to salinity tolerance of the indicator species Vallisneria. The District's experts also testified that salinity can be used as a flow component because it is not affected by chemical or biological processes and is an indicator of how much fresh water is entering the system.5/ Salinity is included in the duration component of the MFL criteria and is an exceedance criterion because the science established that the salinity gradient is crucial to the overall health of the CRE. Including salinity in the duration component of the MFL criteria achieves the purpose of the statutory mandate to set MFLs that are designed to avoid significant harm to the water resources and ecology of the area. No Unit of Measurement for Salinity The Petitioners and Intervenors argued that the Proposed Rule is vague because the language does not contain any units for salinity. The UNESCO calculation is the standard equation used by the estuarine and marine science community to convert specific conductivity and temperature data to salinity. The District's experts testified that the UNESCO calculation reports salinity as a ratio, which is a dimensionless number and has no units. The District uses the UNESCO calculation and performs the conversion in a spreadsheet that it maintains. In some instances, certain brands of data sondes are programmed to perform the calculation and provide the salinity number. The preponderance of the evidence established that use of the practical salinity unit (PSU) is not technically correct. PSU is a misnomer, a pseudo-unit equivalent to a unitless salinity number. The Petitioners' and Intervenors' expert witness, Dr. Anthony Janicki, conceded there is no difference between reporting salinity as unitless or as PSU. And although technically incorrect, he suggested that placing the word "practical" or putting "PSU" in the Proposed Rule would reduce confusion and vagueness. However, since the preponderance of the evidence established that use of PSU is not technically correct, the use of a pseudo-unit would actually cause confusion instead of reduce confusion. The Petitioners and Intervenors also argued that the Proposed Rule is vague because the language does not state that the method of measuring salinity is specific conductivity, or that the equation used to convert specific conductivity and temperature data to salinity is the standard developed by UNESCO. The Petitioners and Intervenors essentially argued that members of the public and those who may be regulated by the Proposed Rule are left to guess about the method or methods used to measure salinity. Because the Proposed Rule identifies and locates by latitude and longitude coordinates the Ft. Myers salinity monitoring station as the location where salinity would be measured for compliance, the Proposed Rule language is not vague. The Proposed Rule is not vague because it does not describe the data sondes, what parameters are measured by the data sondes, and how those parameters are converted to a salinity number. Salinity Monitoring Location and Mean Low Water The Petitioners and Intervenors argued that the Proposed Rule is vague for failing to define the phrase "20% of the total river depth at mean low water," and is arbitrary or capricious for failing to include more than one salinity monitoring station. Total river depth or the water column depth is a standardized measurement that is made from the surface down to the bottom of the river bed. Mean low water is commonly understood in the oceanographic and coastal sciences community as the average of all low tides over the time period defined as the national tidal datum epic. The District's expert witness, Dr. Cassondra Armstrong, testified that mean low water can be determined by using two documents prepared by the National Oceanographic and Atmospheric Administration (NOAA), i.e., the NOAA tide charts and glossary. The District's expert witnesses testified that "20% of the total river depth at mean low water" is the location of the data sonde at the Ft. Myers monitoring station that measures surface salinity. This is also the depth at which Vallisneria is located in the CRE. Since, the Proposed Rule language simply identifies the location of the existing data sonde at the Ft. Myers salinity monitoring station, the language is not vague. The preponderance of the evidence established that the Ft. Myers salinity monitoring station has two salinity data sondes, the one at 20 percent of the total river depth and the other at 80 percent. The data sonde at 20 percent of the total river depth was identified in the Proposed Rule for the following reasons. First, this is the depth where Vallisneria grows and is representative of the salinity exposure for Vallisneria. Second, it guarantees the data sonde is always submerged and able to record data. Third, it has the most comprehensive period of record of monitoring data available. As previously found, Vallisneria continues to be a particularly useful indicator of environmental conditions in the CRE. The location of Vallisneria habitat in the upper CRE and its negative response to increased salinity made it an excellent candidate as an ecological indicator for fresh water inflow. Because the preponderance of the evidence established that Vallisneria continues to be a particularly useful indicator of environmental conditions in the CRE, the choice of the Ft. Myers monitoring station is not arbitrary or capricious. Water Resource Functions vs. Environmental Values The District's MFL rule specifies that a water body's specific water resource functions addressed by an MFL are defined in the MFL technical support document. See Fla. Admin. Code R. 40E-8.021(31). The Final Technical Document identified the relevant water resource functions of the CRE as fish and wildlife habitats, estuarine resources, water supply, recreation, navigation, and flood control. The Petitioners and Intervenors argued that the environmental values listed in Florida Administrative Code Chapter 62-40, also known as the Water Resource Implementation Rule, were not adequately addressed in the Final Technical Document. A proposed rule challenge is not the proper forum to determine whether a proposed rule is consistent with the Water Resource Implementation Rule. Such a determination is within the exclusive jurisdiction of the Department of Environmental Protection under section 373.114(2), Florida Statutes. Consistency of the District's Proposed Rule with the Water Resource Implementation Rule of the Department of Environmental Protection is not a basis in this proceeding for a finding that the Proposed Rule is an invalid exercise of delegated legislative authority. Other Issues The Petitioners and Intervenors raised other issues during the hearing, although not specifically argued in their proposed final order. Since those issues were identified as disputed issues in the Joint Pre-hearing Stipulation, they are addressed below. 1. Elimination of Single-day Exceedance Criterion During the rulemaking process, Sanibel and SCCF sent the District a letter requesting justification for eliminating the single-day exceedance salinity criterion in the current rule. The District staff evaluated the available Caloosahatchee River MFL compliance record, dating back to when the MFL was adopted in September 2001. The District maintains a historical record of MFL monitoring data and reviewed it to determine if the single-day exceedance salinity criterion was exceeded before the 30-day moving average criterion. The compliance record showed five exceedance events of the single-day salinity criterion have occurred. However, the compliance record also showed that the 30- day moving average salinity criterion had already been exceeded before the five events occurred. In other words, the single-day criterion was never exceeded before the 30-day moving average criterion. Based on this evaluation, the District eliminated the single-day exceedance salinity criterion because it did not provide any additional resource protection. The District's decision was not arbitrary or capricious. 2. Not Using the Latest Model Evaluation of recommended MFL criteria and a recovery strategy for the CRE were greatly aided by integration of a suite of hydrologic and ecological models simulating (1) long-term fresh water inflow associated with varying management options, (2) the resulting salinity in the estuary, and (3) ecological response of indicator species that are sensitive to low fresh water inflows. Five models were specifically utilized, including three models for simulations of fresh water inflows to the CRE, a three-dimensional hydrodynamic salinity model, and a Vallisneria model. The three models simulating fresh water inflows included (1) the South Florida Water Management Model (SFWMM) to simulate fresh water discharges at S-79, which includes regional operations of Lake Okeechobee and incorporates Caloosahatchee River irrigation demands; (2) the C-43 Reservoir Model, which uses the SFWMM-simulated daily S-79 flow as input and simulates the management benefit of the C-43 Reservoir; and (3) the Watershed (WaSh) Model to simulate tidal tributary inflow from the Tidal Caloosahatchee Basin sub-watershed. The Caloosahatchee Hydrodynamic/Salinity Model was based on the Curvilinear Hydrodynamic Three-dimensional Model (CH3D) modeling framework with the functionality of simulating the spatial salinity structure across the entire estuary. The Vallisneria Model took the CH3D modeled salinity as input to simulate Vallisneria growth at critical locations in the estuary. The District did review the more recent Environmental Fluid Dynamic Code (EFDC) model developed for the Caloosahatchee Total Maximum Daily Load (TMDL) and being used by the Department of Environmental Protection. The District's expert witness, Dr. Detong Sun, testified that until 2014, the hydrodynamic part of the EFDC model was not working well. He testified that in 2016, the District still had concerns and suggested the use of the District's continuous monitoring data from seven locations across the CRE rather than grab samples for model calibration. Dr. Sun's opinion was that the EFDC model has improved in recent years, but was still behind the CH3D model in terms of performance. The District's expert witness, Dr. Amanda Kahn, testified that the water quality component of the EFDC model was not appropriate for this re-evaluation because the MFL is about water quantity, not water quality. The water quality component of the EFDC model addresses nutrient loadings, not minimum flows. Dr. Kahn also testified that in setting MFL criteria for the CRE, salinity was not a water quality component. Salinity was used as a water quantity component because it does not change with biological processes and can be a measure of how much fresh water is coming into the system. Based on a preponderance of the evidence, the District's decision not to use the EFDC model was not arbitrary or capricious. 3. Seasonality The Petitioners and Intervenors argued that the District is required to set an MFL that varies by season. For the CRE, the District set MFL criteria that protect the system from low flow that would occur in either the wet or dry season. As previously found, the re-evaluation studies focused on the dry season for two reasons: first, because it is well-established that the upstream migration of salt combined with reduced fresh water inflow alters the health and productivity of estuarine habitats; and second, because the dry seasons are the times when the current MFL criteria are likely to be exceeded or violated. The MFL statute states that "when appropriate, [MFLs] may be calculated to reflect seasonal variations." § 373.042(1)(b), Fla. Stat. The preponderance of the evidence showed that for the CRE, it was not necessary to set an MFL that varied by season. Improper Purpose The Petitioners, Sanibel, Cape Coral, and the Town, did not participate in this proceeding primarily to harass or to cause unnecessary delay or for frivolous purpose or to needlessly increase the cost of litigation. The Petitioners did not participate in this proceeding for an improper purpose. The Intervenors, Fort Myers, Estero, Bonita Springs, and CCP, did not participate in this proceeding primarily to harass or to cause unnecessary delay or for frivolous purpose or to needlessly increase the cost of litigation. The Intervenors did not participate in this proceeding for an improper purpose.
