Findings Of Fact On July 19, 1991, the Petitioner, Cahill Pines and Palm Property Owners Association, Inc. (Cahill), filed a permit application with the Department of Environmental Resources, predecessor to the Respondent, Department of Environmental Protection (Department), for a permit to remove two earthen plugs in the Cahill canal system, located in Big Pine Key, Monroe County, Florida. The plugs were to be removed to a depth of -5.5 feet N.G.V.D. Kenneth Echternacht, a hydrologist employed by the Department, had performed a hydrographic review of the proposed project and reduced his findings to writing in a memorandum dated June 25, 1993. Mr. Echternacht recommended that the project not be permitted. On August 20, 1993, the Department issued a notice of its intent to deny Cahill's application to remove the plugs. The notice included six proposed changes to the project which would make the project permittable. Cahill requested an administrative hearing on the Department's intent to deny the permit. On March 3 and 4, 1994, an administrative hearing was held on the issue of whether a permit should be issued. The hearing officer entered a recommended order on May 9, 1994, recommending that a final order be entered denying the permit. The Department issued a final order on June 8, 1994, adopting the recommended order of the hearing officer and denying the permit. See Cahill Pines and Palm Property Owners Association v. Department of Environmental Protection, 16 F.A.L.R. 2569 (DER June 8, 1994). In the final order the Department found that the following findings of Mr. Echternacht were "scientifically sound and credible conclusions": The estimated flushing for the presently open portion of the waterway was calculated to be 14.5 days. The flushing for the open section exceeds the 4 day flushing criterion by approx- imately 3.6 times. Clearly, the open portion poses a potential problem to the maintenance of acceptable water quality. For the presently closed sections of the waterway, the calculated flushing time was found to be 38.6 days. Again, this system would pose a significant potential for contamination to adjacent open waters if opened for use. The waters behind the barrier that presently appear to pose no problem would clearly become a repository for contaminants associated with boat usage. Because of the exceptionally long flushing time, contaminants would build up over time. Below standard water quality throughout the waterway would be expected and, associated with this, below standard water would be exported into adjacent clean water on each ebbing tide. The final order also found the following facts: 13. Neither the water in the open canals nor the water in the closed canals is presently of substandard quality. * * * Petitioner's plug removal project will also spur development in the Cahill subdivision and lead to an increase in boat traffic in the Cahill canal system, as well as in the adjacent waters of Pine Channel. Such activity will result in the discharge of additional contaminants in these waterways. As Echternacht stated in his June 25, 1993, memorandum that he sent to O'Connell, '[b]ecause of the [canal system's] exceptionally long flushing time, [these] contaminants would build up over time' and result in a significant degradation of the water quality of not only the Cahill canals, but also of Pine Channel, into which Cahill canals flow. This degradation of water quality will have an adverse effect on marine productivity and the conservation of fish and wildlife that now inhabit these waterways. Consequently, in the long run, the removal of the plugs will negatively impact fishing opportunities in the area. On the other hand, the project will have a beneficial effect on navigation and recreational boating and related activities. It will have no impact on historical and archaeological resources. On April 10, 1995, Cahill submitted a permit application to the Department to remove portions of the two canal plugs. Cahill proposed to leave an island in the center of each plug. The islands would be stabilized with riprap, and mangrove seedlings would be planted in the riprap. By letter dated April 21, 1995, the Department returned the April 10 permit application to Cahill along with the $500.00 processing fee. The Department advised Cahill that the application was not substantially different from the 1991 permit application which was denied by final order. The Department further advised that Cahill could resubmit the application and application fee if it wanted the permit to be processed but the Department would deny the application on the basis of res judicata. On May 17, 1995, Cahill submitted a revised permit application along with the processing fee. A circulation culvert had been added to the project. Ken Echternacht performed a hydrographic review of the proposed project. In a memorandum dated May 25, 1995, Mr. Echternacht recommended that the permit be denied for the following reasons: The proposed 24-inch culvert connection would not be expected to be visible hydraulically. A 24-inch diameter culvert, length 181 ft would be expected to have a friction factor several orders of magnitude greater than the adjacent canals. As such, water would not be expected to pass through the connector unless there were a sizeable head to drive the flow. No studies and/or supporting documentation have been provided to support the design in terms of the documenting the amplitude and repeatability of the flow driving force. Cutting holes through embankments do not necessarily result in flushing relief. As stated in 1, above, any and all proposed design modifications to the proposed waterway must be accompanied by adequate design justifi- cation based on hydrographic modeling supported by site specific data support. The culvert design proposed does not meet the above require- ment. The proposal is nothing new. In the hearing, ideas such as the above were suggested. However, as was stated in the hearing any and all such proposals must be supported by proper engineering study. On July 7, 1995, the Department issued a Notice of Permit Denial, denying the May, 1995 permit application on the basis of res judicata, stating that the May 1995 permit was not substantially different from the 1991 permit application which had been denied and that no studies had been submitted by Cahill that would support that the use of the islands and culvert would increase the flushing rate to the four day flushing criterion established in the hearing on the 1991 permit application. At the final hearing counsel for Cahill stated for the record that the use of the islands and the culvert would not increase the flushing rate to four days.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered denying Cahill Pines and Palms Property Owners Association, Inc.'s application for a permit to remove two plugs separating the open and closed canal sections of the Cahill canal system, placing an island in the center of each plug, and adding a 24 inch culvert connection. DONE AND ENTERED this 31st day of July, 1996, in Tallahassee, Leon County, Florida. SUSAN B. KIRKLAND 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 31st day of July, 1996. APPENDIX TO RECOMMENDED ORDER, CASE NO. 95-4377 To comply with the requirements of Section 120.59(2), Florida Statutes (1995), the following rulings are made on the parties' proposed findings of fact: Petitioner's Proposed Findings of Fact. Paragraphs 1-7: Accepted in substance but not necessary to be incorporated in the recommended order. Paragraph 8: The evidence presented showed that there is a dispute of whether the waters are now of substandard quality. For the purposes of this hearing, it is not necessary to determine whether the water quality is presently substandard. Based on the assumption that the water quality is not substandard, Petitioner has failed to show that the change in the design of the project is sufficient to warrant the rejection of the applicability of the doctrine of res judicata. Petitioner has failed to show that the addition of islands and a culvert will eliminate the potential for future contamination of the waters. The second sentence is accepted in substance but not necessary to be incorporated in the recommended order. Paragraphs 9-11: Accepted in substance but not necessary to be incorporated in the recommended order. Paragraphs 12-15: Accepted in substance to the extent that for the purposes of this hearing the water quality is assumed not to be substandard. Paragraph 16: Rejected as unnecessary. Paragraphs 17-27: Rejected as subordinate to the finding that for the purposes of this hearing the present water quality is assumed not to be substandard. Paragraphs 28-30: Accepted in substance. Paragraph 31: Accepted in substance to the extent that the changes in the design will not increase the flushing rate to four days. Paragraphs 32-33: Accepted to the extent that they were findings in the final order on the 1991 application. Paragraphs 34-35: Accepted to the extent that the slow flushing rate is one of the criteria to be considered. The increase of development and boat traffic are also contributors to the potential of contamination building up. Petitioner has not demonstrated that the use of islands and a culvert will eliminate the potential for contamination. Respondent's Proposed Findings of Fact. Paragraphs 1-10: Accepted in substance. Paragraphs 11-14: Rejected as unnecessary. Paragraph 15: Accepted in substance. Paragraph 16: Accepted in substance as corrected. Paragraph 17: Accepted. Paragraphs 18-21: Accepted in substance. Paragraph 22: Accepted. Paragraph 23: Rejected as unnecessary. COPIES FURNISHED: David Paul Horan, Esquire Horan, Horan and Esquinaldo 608 Whitehead Street Key West, Florida 33040-6549 Christine C. Stretesky, Esquire John L. Chaves, Esquire Department of Environmental Protection 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 Kenneth J. Plante, General Counsel Department of Environmental Protection 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 Virginia B. Wetherell, Secretary Department of Environmental Protection 3900 Commonwealth Boulevard, Douglas Building Tallahassee, Florida 32399-3000
The Issue The issue is whether Respondent Department of Environmental Protection properly determined that Respondent City of Gulf Breeze was entitled to construct a concrete jetty at the mouth of Gilmore Bayou, to widen the mouth of the bayou an additional 35 feet, and to dredge sections of the bayou to a depth of minus eight feet.
Findings Of Fact On March 22, 1996, Gulf Breeze applied for a wetlands resource permit from DEP to allow the following: (a) dredging of the entrance channel to Gilmore Bayou in order to return the channel to its original width and depth; (b) construction of bulkheads on either side of the channel; and (c) construction of two jetties on the east side of the channel to slow the accretion of sediments in the channel. The proposed project is located in the waters of the state at the southwestern end of Gilmore Bayou where it opens into Pensacola Bay. The project is adjacent to and north of 406 Navy Cove Road, in the City of Gulf Breeze, Florida, Section 6, Township 35N, Range 29W. The Petitioner's home is located at 86 Highpoint Drive, Gulf Breeze, Florida. Her residence is downstream from the project at the northeastern end of Gilmore Bayou. The channel at the southwestern end of Gilmore Bayou was originally dredged in the mid-1950s. Since that time, the channel has provided a navigable outlet to Pensacola Bay for use by property and boat owners along Gilmore Bayou. The channel has also provided for water circulation and tidal flushing within the Bayou. Maintenance dredging has been performed almost annually to keep the Gilmore Bayou channel open. The purpose of the proposed project is to reduce the need for the frequent maintenance dredging and to provide for better water circulation in the bayou. A wetlands resource permit to perform maintenance dredging has not been required in the past because that activity was exempt from the permitting process. On July 28, 1997, the Department issued Gulf Breeze a Notice of Intent to Issue Draft Permit Number 572874961 to construct one seventy (70) foot long concrete jetty at the mouth of Gilmore Bayou, widen the mouth of Gilmore Bayou an additional thirty-five feet and dredge sections of the Bayou to a depth of minus eight feet. In issuing the Notice of Intent to Issue, the Department also considered Gulf Breeze's application for a five- year sovereign, submerged land easement for the location of the jetty. Gulf Breeze published the Notice of Intent to Issue in a newspaper of general circulation in accordance with DEP requirements and Section 373.413(4), Florida Statutes, and Rule 62-343.090(2)(k), Florida Administrative Code. Thereafter, Petitioner filed a petition requesting that the permit be denied. Petitioner has a substantial interest in the permitted activity, as she owns property and resides on Gilmore Bayou. Petitioner's request that the permit be denied is primarily based on her opinion that water quality in Gilmore Bayou has deteriorated as a result of the original and continuous dredging of the channel at the southwestern end of Gilmore Bayou. She is concerned that the permitted activity will result in further water quality degradation and result in a further movement of the spit of land which extends in front of her home out to Deadman's Island on the northern side of the Bayou. The ecosystem in Gilmore Bayou today is a healthy system which supports various marshes and fish. The ecosystem thrives despite water quality degradation resulting from development and urbanization along its shores. More specifically, septic tanks, fertilizer runoff, and stormwater discharge have caused water quality to degrade in the Bayou. The most persuasive evidence indicates that the dredging of the channel over time has not caused the water quality to degrade. The permitted activity will have a positive effect on water quality in Gilmore Bayou, as it will enhance tidal flushing through the channel. The jetty, which is a part of the permitted activity, will slow the transport of sand into the channel, allowing for better flushing and reducing the need for maintenance dredging in the channel. Construction of the jetty is recommended and supported by the hyrdographic study of Kenneth L. Echternacht, Ph.D., P.E. Gulf Breeze obtained and submitted this study to DEP to assist in evaluating the project. The permitted activity will have no significant impact on the location of the spit of land extending from Petitioner's property to Deadman's Island. The shifting of the spit of land over the years has been caused by numerous factors which are identified in a 1993 study by Dr. James P. Morgan, Ph.D. These factors include development of the area, erosion of the surrounding bluffs, the location of the Pensacola Bay bridge, and storms and sand drift into channels to the east of the spit. Without this project or frequent maintenance dredging, the channel at the southwestern end of Gilmore Bayou would fill with silt. Eventually, the silt would inhibit water circulation and result in further water quality degradation in the bayou. The permitted activity is not contrary to the public interest. Instead, it will benefit the public interest. The project will make it possible to maintain the Gilmore Bayou channel more efficiently. The project will allow for increased flushing of the bayou. The increased flushing will improve water quality in the bayou. The permitted activity will not have any adverse effect on the conservation of fish or wildlife, or any endangered species or their habitats. The permitted activity will not adversely affect navigation or flow of water or cause any harmful erosion or shoaling. It will have a positive effect on navigation and water flow and act to prevent harmful erosion or shoaling. The permitted activity will have no adverse effect on fishing or recreational values or marine productivity in the vicinity of the project. The permitted activity will provide for permanent jetties and bulkheads at the entrance to Gilmore Bayou. The permitted activity will have no adverse effect on historical or archeological resources on Deadman's Island or in the vicinity of the project. The permitted activity will have a positive impact on the recreational functions and use of the channel and Deadman's Island.
Recommendation Based upon the findings of fact and conclusions of law, it is, RECOMMENDED: That the Department of Environmental Protection issue a Final Order determining that its Notice of Intent to Issue Permit, together with Permit No. 572874961, is final agency action. DONE AND ENTERED this 6th day of February, 1998, in Tallahassee, Leon County, Florida. SUZANNE F. HOOD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 6th day of February, 1998. COPIES FURNISHED: Mary Jane Thies, Esquire Beggs and Lane Post Office Box 12950 Pensacola, Florida 32576-2950 Ricardo Muratti, Esquire Department of Environmental Protection Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 Patricia J. Moreland 86 Highpoint Drive Gulf Breeze, Florida 32561 Matt E. Dannheisser, Esquire 504 North Baylen Street Pensacola, Florida 32501 Kathy Carter, Agency Clerk Department of Environmental Protection Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 F. Perry Odom, Esquire Department of Environmental Protection Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 Virginia B. Wetherell, Secretary Department of Environmental Protection Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000
Recommendation Based on the forgoing Findings and Conclusions of Law it is hereby Recommended that the Respondent, DER, issue a permit to Respondent, Fano Holding Corporation, to construct a 200 foot long by 5 foot wide pier with a 100 foot long by 5 foot wide "T" at the waterward end, as set forth hereinabove. RECOMMENDED this 10th day of October, 1978, in Tallahassee Florida. JAMES E. BRADWELL, Hearing Officer Division of Administrative Hearings 530 Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Segundo Fernandez, Esquire Assistant General Counsel Department of Environmental Regulation 2600 Blair Stone Road Twin Towers Office Building Tallahassee, Florida 32301 Diane S. Guthrie, Esquire Spielvogel & Goldman, P.A. P.O. Box 1366 Merritt Island, Florida 3252 Edward M. Jackson, Esquire P.O. Box 127 Cocoa, Florida 32922 ================================================================= AGENCY FINAL ORDER ================================================================= BEFORE THE STATE OF FLORIDA DEPARTMENT OF ENVIRONMENTAL REGULATION T. OSBORNE, et al., Petitioner, vs. DOAH Case NO.: 78-753 DER FILE NO.: 05-30-0543-4E FANO HOLDING CORPORATION and (6826) STATE OF FLORIDA DEPARTMENT OF ENVIRONMENTAL REGULATION, Respondent. /
The Issue Whether the Petitioner should be granted a permit to clear and place fill on 0.23 acres of Lot 5, in Block 85 of Daytona North subdivision for the purpose of creating sufficient uplands for a single family dwelling, septic tank system and drainfield.
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings of fact are made: Petitioner is the owner of a parcel of real property located in Section 17, Township 12 South, Range 29 East at Lot 5, Block 85, in the Daytona North Subdivision, west of the town of Bunnell in Flagler County, Florida. The Department is the agency of the State of Florida that is authorized to issue permits to dredge and fill wetlands pursuant to Chapter 373, Florida Statutes. It is successor to the Department of Environmental Regulation. On March 8, 1993, the Petitioner filed an application with the Department for a permit to clear and fill within 0.23 acres [approximately 10,000 square feet] of hardwood swamp which is connected by large drainage ditches to Bull Creek. The property subject to the application for a permit to fill is a portion of that property described in Finding of Fact 1. The purpose of obtaining a permit to fill was to create sufficient uplands upon which to construct a single family dwelling with a septic tank system, including a drainfield. Following a review of Petitioner's application, the Department issued its Notice Of Permit Denial on July 30, 1993. The denial was based on the Petitioner's proposed project failing to provide the Department with the reasonable assurances required by Section 373.414(1), Florida Statutes [formerly Section 403.918(1) and (2), Florida Statutes] While there are some pine trees scattered throughout the area, including the Petitioner's lot, the area does not appear to be what is commonly referred to as longleaf or slash pine flatwoods because the understory (undergrowth) is not dominated by saw palmetto, even though Petitioner's composite exhibit 2 (photographs of area) reflects a patch or two of saw palmetto. The area is dominated by understory that tends to thrive in soil that, while not always covered with water, is usually saturated with water. Additionally, the more predominant trees in the area are hardwood [gums, etc.] and cypress which tend to thrive in soil that is saturated with water. The upper surface of the soil in the area, including the Petitioner's property, is peat or muck which tends to be saturated with water and has very little percolation. To the north and east of the subdivision are potato and cabbage fields, drainage from which is routed through the subdivision in large agricultural drainage ditches. Petitioner's property backs up to a large drainage canal, which is one of many canals in the subdivision connected to these even larger agricultural drainage canals. Water from these many canals flows into Bull Creek, Class III waters, and from Bull Creek to Dead Lake and then into Crescent Lake. There is sufficient evidence to establish facts to show that the Petitioner's property comes within the definition of wetlands as defined in Section 373.019(17, Florida Statutes, which are connected to waters of the state as defined in Section 373.019(8), Florida Statutes. Therefore, the Petitioner's proposed project is not exempt from permitting and requires a dredge and fill permit for the proposed construction. Water quality in Bull Creek and in the receiving waters of Dead Lake and Crescent Lake has been degraded as a result of agricultural runoff from nearby farms. This runoff, containing nitrogen and phosphorus, the main components of fertilizer, is routed through the ditch system in the subdivision directly into receiving waters of Bull Creek, Dead Lake and Crescent Lake. Agricultural runoff from these sources has resulted in water quality violations for nitrogen, phosphorus, bacteria and benthic macroinvertebrates in Bull Creek Canal; and for nitrogen, phosphorus and dissolved oxygen in Dead Lake and Crescent Lake. This subdivision contains approximately 800 lots located in wetlands. It is anticipated that if dredge and fill permits were available for development, then the lots located in the wetlands would develop first due to the difference in price between the lots located in the wetlands as opposed to lots located in the upland. It was the Department's testimony that this was the first application received by the Department to place fill in wetlands in the subdivision. However, photographs 22 and 23 of Petitioner's composite exhibit 2 reflect that there are houses in the wetlands area of the subdivision that appear to be located on wetlands that have been filled, with a septic tank system located on the filled area. Petitioner's proposed project is permanent in nature, and any wetlands that were filled as a result of this project would be lost to the system. Likewise, any other lots located in the wetlands area of the subdivision that were developed would also be lost to the system. Assuming that the lots in the wetlands area of the subdivision were developed as the Department anticipates, then there would be a permanent loss to the system of a large area of wetlands which would result in a loss of the wetlands filtering system. Without this filtering system, there would be a decrease in the nutrient uptake which could create algal blooms and deplete dissolved oxygen levels, thus further degrading water quality resulting in a long term water quality violation. Due to nature of the surface of the soil located in the wetlands area of the subdivision and its lack of permeability, the effluent from the septic tank system would likely fail to percolate below the fill. This failure to percolate would likely result in a lateral flow of the effluent towards the drainage ditches located within the subdivision which flow into the agricultural drainage canals and eventually into Bull Creek to Dead Lake to Crescent Lake, thus further degrading water quality resulting in a along term water quality violation. Development of the wetlands area of the subdivision would adversely affect the conservation and productivity of fish by further degrading the already poor water quality of Bull Creek and Dead Lake. While the proposed project's effect on the habitat and functioning of the wetlands area of the subdivision or the water quality may be minimal, it is the adverse cumulative impact the proposed project would have, by "opening the door", so to speak, on other permit applications for dredge and fill in the wetlands area of the subdivision that is the main concern.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department enter a Final Order denying the Petitioner's application for dredge and fill Permit Number DF 182280792. RECOMMENDED this 6th day of May, 1994, at Tallahassee, Florida. WILLIAM R. CAVE 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 6th day of May 1994. APPENDIX TO RECOMMENDED ORDER, CASE NO. 93-5970 The following constitutes my specific rulings, pursuant to Section 120.59(2), Florida Statutes, on all of the proposed findings of fact submitted by the Department in this case. Petitioner Stanley A. Ferguson Petitioners did not submit any proposed findings of fact. Respondent, Department's Proposed Findings of Fact. 1. The Department's proposed findings of fact 1 through 15 are adopted in substance as modified in Findings of Fact 1 through 19 of the Recommended Order. COPIES FURNISHED: Stanley A. Ferguson Route 1, Box 21A-1R Bunnell, Florida 32110 Donna M. La Plante, Esquire Department of Environmental Protection Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32399-2400 Virginia B. Wetherell, Secretary Department of Environmental Protection Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32399-240 Kenneth Plante, General Counsel Department of Environmental Protection Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32399-2400
The Issue The issue is whether Bayou Arbors, Inc. (Arbors), is entitled to a dredge and fill permit to construct docks in DeBary Bayou, Volusia County, Florida.
Findings Of Fact On January 8, 1986, DER received an application from Arboretum, a predecessor in interest of Arbors, to construct 12,758 square feet of docks in DeBary Bayou to provide ninety eight (98) boat slips, and to dredge 2,509 cubic yards of shoreline material from DeBary Bayou in areas within DER's jurisdiction under the proposed boat docks, and to place approximately 800 linear feet of concrete riprap along the shoreline after it was dredged. Following the initial application review process, which included on- site evaluations by several DER biologists, on April 14, 1986, DER prepared a Biological and Water Quality Assessment in which DER's staff recommended that the project be modified to delete the dredging, allowing the littoral zone to remain intact. On April 24, 1986, DER forwarded its Biological and Water Quality Assessment to Mr. Charles Gray, the property owner. In response to DER's recommendations, the Applicant submitted, and on April 30, 1986, DER received, a revised Application which deleted the originally-proposed shoreline dredging of 2,509 cubic yards of material as well as the placing of 800 linear feet of concrete riprap. This Application was submitted by Mr. Duy Dao, a Professional Engineer registered in the State of Florida. This Application proposed constructing approximately 17,000 square feet of docking facilities, providing ninety-eight boat slips, along approximately 2,580 linear feet of shoreline adjacent to twenty-four acres of uplands owned by the Applicant. The original and the revised drawings omitted a vertical scale from the cross-section drawings of the project. This omission gave the impression that the shoreline bank of DeBary Bayou was steeper than it actually is and that the water depths in DeBary Bayou adjacent to the north shoreline are deeper than they actually are. However, DER's biologists were on-site four times between February 25, 1986, and May 19, 1986. They observed the existing slope of the DeBary Bayou shoreline and the existing depths in DeBary Bayou, and the on-site observations negated the effect of the omission in the drawings. The omission in the drawings did not affect DER's evaluation of the project. On May 23, 1986, DER issued its Intent to Issue and Draft Permit No. 64-114399-4 to Arboretum. The Intent to Issue and the Draft Permit include the following Specific Conditions: Further construction on the Applicant's property along the DeBary Bayou shall be limited to uplands; Issuance of this permit does not infer the issuance of a permit for dredging in the Bayou at a future date, should an application for dredging be submitted; A deed restriction shall be placed on the condominium limiting boats moored at the facility to seventeen feet or less. A copy of the deed restriction shall be submitted to the Department within sixty days of issuance of this permit; There shall be no "wet" (on-board) repair of boats or motors at this facility; All boats moored at the dock shall be for the use of residents of the condominium only. Public use of the dock or rental or sale of mooring slips to non-residents of the condominium is prohibited; Manatee warning signs shall be placed at 100 foot intervals along the length of the dock(s); Turbidity shall be controlled during construction (by the use of siltation barriers) to prevent violations of Rule 17-3.061(2)(r), Florida Administrative Code. On June 29, 1987, Volusia County, DER and Arboretum entered into a "Joint Stipulation for Settlement" wherein Arboretum agreed not to construct more than twenty-six docks accommodating more than fifty-two boat slips along Arboretum's DeBary Bayou frontage of 2,580 feet. Furthermore, Arboretum agreed that it would modify the configuration and the design of the boat slips and the location of the boat docks; that it would post Slow Speed, No Wake zone signs and manatee education signs along DeBary Bayou from the 1-4 bridge west to a point 100 feet west of the western boundary of Arboretum's boat docks; and that as mitigation for the removal of vegetation from the littoral zone where the boat slips would be constructed, Arboretum would plant wetland hardwood trees. In addition to the Joint Stipulation for Settlement, on June 14, 1987, the property owners, Charles Gray and Sandra Gray, as part of their agreement with Volusia County, executed a "Declaration of Covenants, Conditions, and Restrictions" to which the Joint Stipulation for Settlement was attached as an exhibit. Said Declaration of Covenants, Conditions, and Restrictions, reiterated the Joint Stipulation's limitation of construction of boat docks in DeBary Bayou and further provided that said boat docks would not be constructed at the Arboretum project site in DeBary Bayou unless and until certain maintenance dredging set forth in Article II of the Declaration of Covenants, Conditions, and Restrictions occurred. Furthermore, Article III of said Declaration of Covenants, Conditions and Restrictions set forth certain prohibitions regarding constructing boat ramps on the Arboretum property and docking or storing boats along the DeBary Bayou shoreline except at the site of the proposed docks. In 1969, an artificial channel was excavated in DeBary Bayou adjacent to the north shoreline of DeBary Bayou by a dragline operating along the shoreline. At present, said channel has been partially filled by organic sediments originating in DeBary Bayou. There exists in Section 403.813(2)(f), Florida Statutes, an exemption from the DER's permitting requirements for the performance of maintenance dredging of existing man-made channels where the maintenance dredging complies with the statutory provisions and with the regulatory provisions found in Florida Administrative Code Rule 17-4.040(9)(d). The dragline excavation work performed in DeBary Bayou in 1969 created a structure which conforms to the definition of "channel" provided in Section 403.803(3), Florida Statutes. The maintenance dredging required by the Declaration of Covenants, Conditions, and Restrictions is to be performed by suction vacuuming of the silt sediment, from the 1969 channel and that dredged material is to be placed on Arbors' upland property at the project site. This maintenance dredging differs from the dredging originally proposed by the applicant in its application submitted in January 1986. The dredging originally proposed, which DER recommended against, was to be performed by back hoes and drag-lines which would have cut into the north shoreline of DeBary Bayou and would have affected the littoral zone along the project shoreline. The average water level in Lake Monroe and DeBary Bayou is approximately 1.8 feet above mean sea level. On April 18, 1987, transact studies in DeBary Bayou showed water levels at 3.2 feet above mean sea level and that water depths in DeBary Bayou to a hard sand/fragmented shell bottom ranged from approximately one foot along the south shoreline to approximately nine feet in deep areas in the former channel. The average depth of the channel is five feet below mean sea level. The water depth in DeBary Bayou ranges from approximately one to three feet. At times of average water levels, one to three feet of silt or unconsolidated sediment overburden covers the natural hard sand/shell bottom of DeBary Bayou. This silt and sediment overburden is composed of organic material and is easily disturbed. When it is disturbed, it raises levels of turbidity, although there was no evidence presented that the turbidity would violate state water quality standards. This silt and sediment overburden has been deposited at a faster rate than it would normally be deposited under natural conditions because of the Army Corps of Engineers' herbicidal spraying of floating plants in DeBary Bayou. As this silt and sediment overburden decomposes, it takes oxygen from the water. The presence of a strong odor of hydrogen sulfide indicates that the oxygen demand created by the sediment is greater than the available supply of oxygen at the sediment-water interface. This unconsolidated silt and sediment overburden does not appear to harbor either submerged vegetation or significant macroinvertebrate populations. The Shannon/Weaver diversity index of benthic macroinvertebrates at four locations in DeBary Bayou indicated lowest diversity at the project site and highest diversity at the 1-4 overpass, where a small patch of eel grass is growing. Removal of this silt and sediment overburden from the 1969 channel will enhance the system, enabling a hard bottom to be established, with a probability of subsequent establishment of a diversity of submerged macrophytes. Removal of the silt and sediment overburden from the 1969 channel will restore the natural hard sand/fragmented shell bottom in that area of DeBary Bayou. It is unlikely that boat traffic in the restored channel will cause turbidity which will violate state water quality standards. Removal of this silt and sediment overburden will improve water quality in DeBary Bayou by removing a source of oxygen demand. Removal of this silt and sediment overburden will create a better fish habitat by exposing some of the natural bottom of DeBary Bayou. Fish are unable to spawn in the unstable silt and sediment. Removal of this silt and sediment overburden will increase the depth of water in DeBary Bayou channel to between four to six feet. The maintenance dredging, required by the Declaration of Covenants, Conditions, and Restrictions, is limited by statute to the channel which was excavated in 1969. Therefore, a continuous channel will not be maintained from the project site eastward to Lake Monroe. At present, a sandbar exists at the confluence of DeBary Bayou and Lake Monroe. During low water, this sandbar restricts navigation into and out of DeBary Bayou to small craft. At present, boats can and do travel on DeBary Bayou for fishing and for other water-related recreational activities. However, due to water level fluctuations, boating on DeBary Bayou is easier during higher water periods. During lower water periods, navigation into and out of DeBary Bayou is still possible, but boaters must proceed using common sense and caution. The United States Fish and Wildlife Service (FWS) has no evidence that manatees presently use or have ever used DeBary Bayou. Adult manatees have an average girth of approximately three (3) feet. Without a continuous channel open to Lake Monroe, manatees are not likely to go up DeBary Bayou. Since the water at the sandbar at the mouth of DeBary Bayou at its confluence with Lake Monroe is generally less than three feet deep throughout the year, it is likely that these shallow waters will deter manatees from entering DeBary Bayou. DeBary Bayou is a spring-fed run from a spring a substantial distance upstream. The sheetflow of the spring water follows a circuitous route through marsh areas prior to reaching the area of this project. The proposed site is just west of the 1-4 overpass and Lake Monroe. The FWS's data show that the St. Johns River in Volusia County has an extremely low documented manatee mortality rate resulting from boat/barge collisions. Generally, boats greater than 23 feet long are more likely to kill manatees outright than smaller boats are. In marinas, manatees are very rarely killed by collisions with boats. Manatees and marinas are highly compatible. On August 1, 1986, the FWS issued a "no-jeopardy" opinion regarding Arbors' project. In this letter, the FWS stated that Arbors' project was not likely to jeopardize the continued existence of the manatee or to adversely modify the manatee's critical habitat. In the year since the FWS issued its no-jeopardy opinion, no manatee mortalities resulting from boat-barge collisions have been documented in the St. Johns River in Volusia County. The FWS recommended one boat slip per one hundred linear feet of waterfront, or twenty-six boat slips for the project. A single-family residence which would be entitled to one pier could berth an unlimited number of boats at that single pier. The FWS would have no control over the number of boats using that single pier. Arbors' project calls for twenty-six piers. The FWS's evaluation of Arbors' project is exactly the same as that agency's evaluation of any other marina project anywhere in areas designated as critical manatee habitat. All of the St. Johns River in Volusia County, Florida, is designated as critical manatee habitat. On July 16, 1986, after issuance of its Intent to Issue, DER received comments from the Florida Department of Natural Resources regarding Arbors' project and its potential impact on manatees. DER considered the possibility of boat/manatee collisions and had specifically considered this issue. DER did not agree with the broad and general concerns expressed by the Department of Natural Resources, and DER's rules have not adopted a specific requirement regarding a ratio between the length of a project's shoreline and the number of permittable boat slips. On July 16, 1986, the Department received a letter from the FWS concerning fisheries issues and navigation. This FWS letter was received after issuance of DER's Intent to Issue. Although DER considered these comments, DER disagreed with the FWS's recommendations regarding these issues. Water quality sampling and analysis showed that at present, there are no violations of DER's Class III water quality standard in DeBary Bayou, except for the dissolved oxygen criterion on some occasions during early-morning hours, and that result is to be expected. It is further not expected that there will be any water quality violations after the project is completed. If the work areas affected by driving piles to build floating docks and the work area around the maintenance dredging of the DeBary Bayou channel are contained within turbidity barriers, as required by general and specific conditions of the DER's proposed Draft Permit, it is anticipated that no violations of the Class III turbidity criterion will occur during construction of Arbors' project. By maintenance dredging the former DeBary Bayou channel, Arbors will remove the silt and sediment overburden from the channel and restore a deep (four to five feet below mean sea level) channel having a hard sand/fragmented shell bottom. Arbors' dock will be restricted to small boats whose operation in the deep channel will be unlikely to re-suspend silt and sediment and cause violations of the Class III turbidity criterion. Additionally, it is unlikely that any turbidity which is created by turbulence from boat propellers in a designated "No Wake, Slow Speed" zone will violate the Class III turbidity criterion. Although the entire project will be enhanced by the proposed maintenance dredging, such dredging is not a part of the permit application. From the evidence it appears that the project is permittable without the dredging. Although Arbors' project will result in the addition of some oils and greases associated with outboard motors to DeBary Bayou, the addition is not expected to result in violations of the Class III water quality standards. Additionally, release of heavy metals from anti-fouling paints should be minimal, and that release can be further controlled by specifically prohibiting over-water repair of boats and motors. Some addition of phosphorous to the waters of DeBary Bayou is anticipated due to use of phosphate-based detergents for washing boats. Additionally, minimal amounts of phosphorous may be added to DeBary Bayou from re-suspension of organic silts by turbulence from boat propellers. However, DER has no standards for phosphorous in fresh waters, and the minimal additional amounts of phosphorous expected from these sources are not anticipated to violate DER's general nutrient rule. Operation of boats at Arbors' proposed boat docks will cause no water quality problems which would not be caused by operation of boats at any other marina anywhere in Lake Monroe or anywhere else in the State of Florida. While WVC's expert, Robert Bullard, testified that Arbors' proposed boat docks could potentially cause violation of DER's Class III water quality criteria for turbidity, oils and greases, heavy metals and phosphorous, he was unable to testify that Arbors' project actually would cause such violation. His testimony in this regard was speculative and is not given great weight. No other WVC expert testified that Arbors' project was likely to cause violation of any criteria of DER's Class III water quality standards. It is anticipated that the shade cast by the boat docks will not have an adverse affect on water quality. Additionally, DeBary Bayou is a clear, spring-fed water body open to direct sunlight. The boat docks will cast shade which will enhance fish habitat. The proposed docks will not threaten any production of fish or invertebrate organisms. The mitigation plan proposed by the applicant and accepted by Volusia County and DER requires planting wetland hardwood tree species. These trees will certainly assist in stabilizing the bank of DeBary Bayou and minimizing erosion of the shoreline. Additionally, these trees will absorb nutrients from the water and will perpetuate the wooded wetland habitat along the DeBary Bayou shoreline. Arbors' own expert, Carla Palmer, also suggested the sprigging of eel grass in the dredged portion of DeBary Bayou. Such planting should be included as part of the mitigation plan. DER considered the cumulative impact of this docking facility. Four marinas are presently permitted on Lake Monroe and in the St. Johns River between Lake Monroe and Deland. DER considered these facilities' existence when it reviewed Arbors' application, and was satisfied that Arbors' boat dock facility would not have an adverse cumulative impact. There are no specific guidelines for a cumulative impact evaluation; accordingly, DER must apply its cumulative impact evaluation on a case-by-case basis. In the present case, there is no showing of adverse cumulative impacts from this project. Arbors' project will not adversely affect significant historical or archaeological resources recognized pursuant to applicable Florida or Federal Law. WVC was organized in March 1985, to oppose development in West Volusia County. WVC did not meet regularly and did not keep regular minutes of its meetings in the interim between organizing and filing the Petition in June 1986, for an administrative hearing on the Intent to Issue a permit for Arbors' project. When the Petition was filed, WVC did not have a membership roll, and was unsure how many members it had. Further, it is unclear as to how many members may have attended an "emergency" meeting to authorize filing said Petition. Approximately five months after said Petition was filed, WVC was incorporated and approximately nine months after the Petition was filed, WVC compiled a list of the people who were WVC members in June 1986. The emergency meeting WVC held in June 1986, to authorize filing said Petition was the first and the only such "emergency" meeting WVC ever held. The minutes of the emergency meeting have been lost. In June 1986, WVC may have had written rules authorizing emergency meetings and authorizing it to file suit, but its Chairman is unsure of this. Six of WVC's approximately 20 members may have lived within one mile of Arbors' project site in June 1986. Two of these members lived on waterfront property on Lake Monroe east of the 1-4 bridge. Some of these WVC members have never taken a boat west of 1-4 onto DeBary Bayou. WVC, as an organization, never sponsored outings or boat trips onto DeBary Bayou before filing the Petition. WVC's officers at the time of filing the Petition did not use DeBary Bayou for boating, fishing or swimming. No WVC members have ever seen manatees in DeBary Bayou. As with any other similar project on Lake Monroe, the boats which might be berthed at Arbors' project might add additional trash to the waters of Lake Monroe, might disturb the wildlife which WVC members might see on their property, and might cause wakes which might erode waterfront property. One of WVC's founders, who was an officer in June 1986, when WVC filed the Petition, stated that she would not be adversely affected in kind or degree any more than any other taxpayer in Florida. Friends timely intervened and its intervention was authorized by its membership at a regularly noticed meeting.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Environmental Regulation enter a Final Order granting Permit Number 64-114399-4, subject to those specific conditions set forth in paragraph 6 hereof and as modified by the stipulation entered into between Arboretum, Volusia County, and Department of Environmental Regulation, as more particularly described in paragraphs 7 and 8 hereof, and to include within the mitigation plan the sprigging of eel grass in areas of the dredged portion of DeBary Bayou. DONE AND ENTERED this 16th day of September 1987, in Tallahassee, Florida. DIANE K. KIESLING Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 FILED with the Clerk of the Division of Administrative Hearings this 16th day of September 1987. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 86-2463 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the proposed findings of fact submitted by the parties in this case. Specific Rulings on Proposed Findings of Fact Submitted by Petitioner and Intervenor, West Volusia Conservancy, Inc., and Friends of the St. Johns, Inc. 1. Each of the following proposed findings of fact are adopted in substance as modified in the Recommended Order. The number in parentheses is the Finding of Fact which so adopts the proposed finding of fact: 1(3); 2(5); 8(24); 13(8); 46(57); and 47(57). 2. Proposed findings of fact 3, 4, 7, 10, 11, 12, 28, 29, 32, 34, 35, 36, 40, 42, 43, 44, and 45 are rejected as being subordinate to the facts actually found in this Recommended Order. 3. Proposed findings of fact 5, 14, 15, 16, 17, 20, 23, 24, 25, 26, 27, 30, 31, 33, 39, and 41 are rejected as being unsupported by the competent, substantial evidence. 4. Proposed findings of fact 6, 9, 18, 19, 21, 22, 37, and 38 are rejected as irrelevant. Specific Rulings on Proposed Findings of Fact Submitted by Respondent, Bayou Arbors, Inc. 1. Each of proposed findings of fact 1-56 are adopted in substance as modified in the Recommended Order, in Findings of Fact 1-56. Specific Rulings on Proposed Findings of Fact Submitted by Respondent, Department of Environmental Regulation Each of the following proposed findings of fact are adopted in substance as modified in the Recommended Order. The number in parentheses is the Finding of Fact which so adopts the proposed finding of fact: 1-11(1-11); 13-28(12-27); 29-38(29-38); 39(38); and 40-48(39-47). Proposed finding of fact 12 is rejected as unnecessary. COPIES FURNISHED: Dale Twachtmann, Secretary Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32399-2400 Richard S. Jackson, Esquire 1145 West Rich Ave. Deland, Florida 32720 Dennis Bayer, Esquire P. O. Box 1505 Flagler Beach, Florida 32036 Philip H. Trees, Esquire P. O. Box 3068 Orlando, Florida 32802 Vivian F. Garfein, Esquire Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32301-8241
Findings Of Fact Respondent, George M. Threadgill, applied on May 5, 1982, for a dredge and fill permit under Chapter 403, Florida Statutes, and Chapter 17-4, Florida Administrative Code. The application was for an extension to an existing pier which would be approximately 100 feet long by 4 feet wide with a platform on the end which would be approximately 10 feet long by 14 feet wide. On May 11, 1982, Respondent modified the application by adjusting the angle of the pier extension so it would not extend in front of his neighbor's property. The site of the project was to be on Innerarity Point on Perdido Bay, Escambia County. The existing pier is approximately 90 to 100 feet long. Prior to Hurricane Frederick in September, 1979, the existing pier extended an additional 40 feet into Perdido Bay. The Department of Environmental Regulation is an agency of the State of Florida with jurisdiction under Chapters 403 and 253, Florida Statutes, to regulate and require a permit for the construction of stationary installations within waters of the State. The Department also has permitting jurisdiction over dredge and fill operations in such waters pursuant to Florida Administrative Code Rules 17-4.28(2) and 4.29(1). The water at the project site is extremely shallow. Witnesses O'Neil and George Threadgill established that the water at the end of the existing pier ranges in depth from being dry in the winter to approximately 2 feet 6 inches during normal water levels. At the end of the proposed pier, the water is from 2 feet 9 inches deep to "waist deep" during normal water levels. There are no grass beds or other areas of significant marine vegetation in the area of the project. Expert witness Snowdon demonstrated that the bay bottom in the area consists of various grades of sand. There are no lagoons or inlets on the adjacent shoreline, and there are no navigational channels in the vicinity of the Project area. The construction of the pier extension is not expected to interfere wish wildlife in the area. There will be some amount of turbidity introduced into the water column as a result of placing the pier pilings in the water. Coarse sand of the type found in the area will settle rapidly out of the water column. Significant water quality problems would only be encountered if pockets of sediment are encountered while "jetting" the pilings into the substrate. The use of turbidity control measures will alleviate water quality problems associated with construction. Based on unrefuted expert testimony of witnesses Snowdon and Fancher, no water quality degradation will occur during and after construction of the pier. The majority of boat traffic in the area consists of mullet fishermen. The mullet boats navigate in the project area, but, as even Petitioners admit, they generally run either around or waterward of an iron stake located approximately 500 feet from shore. When the mullet boats do come within the project site, it is merely to pass through. They do not set their mullet nets within the project area. The existence of the pier will not significantly interfere with navigational patterns for commercial and private fishermen, nor for other types of marine craft or purposes. A sandbar approximately 20 to 25 feet wide exists along the shoreline beginning approximately 10 feet in front of the applicant's existing pier. Prior to September, 1979, the existing pier extended past the sandbar. There was no evidence presented that the pier blocked access or navigation at that time. The Petitioners do not object to the pier being rebuilt to its pre-1979 dimensions, nor to an area beyond the sandbar. At normal or high tide, Petitioners are able to run their boat straight out into Perdido Bay from a distance of 60 feet from the shore due to their having a "short shank motor" on their boat. The existence of the pier across the sandbar will not significantly interfere with the Petitioners' access to their pier or their waterfront. The existence of the pier will not affect navigational patterns of other neighbors. Paddleboats use the waters in the vicinity of the project area. Paddleboats can navigate under the adjacent pier owned by the Petitioners. The adjacent pier is approximately 5 feet high as measured from the top of the pier to the sand bottom. The proposed pier will measure slightly less than 6 feet from the top to the sand bottom. The existence of the proposed pier extension was thus shown to not significantly disrupt recreational paddleboat navigation in the area.
Recommendation Having considered the foregoing findings of fact and conclusions of law, the evidence in the record, the candor and demeanor of the witnesses and the pleadings and arguments of the parties, it is, therefore, RECOMMENDED that the application for a dredge and fill permit by George M. Threadgill for the construction of an extension to his existing pier on Innerarity Point in Perdido Bay in Escambia County, Florida, be GRANTED and that the necessary permit be issued. DONE and ENTERED this 14th day of January, 1983, in Tallahassee, Florida. P. MICHAEL RUFF, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 14th day of January, 1983. COPIES FURNISHED: William E. and Marie M. Jackson Route 1, Box 826 Pensacola, Florida 32507 Mr. George M. Threadgill 4626 LeHavre Way Pensacola, Florida 32505 E. Gary Early, Esquire Assistant General Counsel Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32301 Ms. Victoria Tschinkel Secretary Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32301
Findings Of Fact Seago Group, Inc., the Applicant/Intervenor, owns a tract of land in Lee County Florida, which is completely surrounded by creeks and canals, including Indian Creek on the north. The Intervenor intends to develop the parcel and is seeking a permit from the Department to construct a bridge over Indian Creek to provide access. There is presently a cul-de-sac at the end of Indian Creek Drive on the north side of the creek. The bridge would extend Indian Creek Drive over the creek onto the applicant's property. The Intervenor held an option to purchase land for the right-of-way on the north side of the creek. The Petitioners own property adjacent to Indian Creek Drive. The Petitioner Helwig owns property upon which be resides, and which adjoins the proposed bridge site. The Petitioner Rowe owns property upon which he resides several lets up Indian Creek Drive from the proposed bridge site. The Intervenor originally made application to construct a road over Indian Creek at a different, but nearby location using a culvert rather than a bridge. The Department's staff appraised the application and recommended that it be denied because deposits of fill around the culverts would have eliminated productive submerged creek bottoms, interfered with the ability of the aquatic habitat to support fish and wildlife populations, and eliminated shoreline vegetation which serves to filter runoff which enters the creek, thus helping to preserve good water quality in the creek. The application was withdrawn by the Intervenor before final action was taken on the Department's staff recommendations. The Intervenor thereafter filed the instant application. The application was to construct: ... A 26 ft. wide by 50 ft. long vehicular bridge constructed with 21" prestressed slabs on pile bent abutments over Indian Creek in Lee County, Florida. The application further provided: All work will be conducted on upland with no need for any equipment or material required to be in the water. All equip- ment and material will be delivered by upland access. The application did not reflect that Intervenor had previously sought a permit for the culvert constructions, but the Department was clearly aware of the previous applications and its appraisal of the bridge application was treated as a supplement to the appraisal of the culvert application. In its Notice of Intent to Issue the Permit, the Department erroneously designated the bridge as a "two-span" bridge. The application is actually for a one-span bridge. In its notice the Department added the following specific conditions: Turbidity screens shall be used during construction. Drainage at bridges approaches shall be by swale and no ditches shall be constructed. Drainage shall meet county specifications. No dredging or filling in Indian Creek. No bridge construction shall take place until ownership or easement is obtained through Mr. David Ruch's property pursuant to letters on file with the Department. The Intervenor has acceded to the specific conditions and agreed to comply with them in the event the permit is ultimately issued. All of the pilings for the proposed bridge would be constructed at or above the mean high water line of Indian Creek. Some turbidity could be expected during construction, however, the use of turbidity screens would eliminate any significant impact upon the water quality, fish and other wildlife resources of Indian Creek during construction. The only potential source of pollution from the bridge after construction would be from runoff entering Indian Creek from the bridge. The amount of runoff that would result from a 50 ft. long by 26 ft. wide bridge is negligible. The limited impact that such runoff could have upon the creek can be eliminated by having drainage flow through a swale system. Since the Intervenor has agreed to utilize a swale system, it does not appear that the bridge would have any adverse impact upon the water quality of Indian Creek or any other water body. Neither does it appear that the bridge would adversely affect fish and wildlife resources. Since all bridge pilings would be constructed at or above the mean high water line, transitional zone vegetation can continue to flourish along the shoreline. The planned clearance between the creek elevation at mean high water and the bridge is seven feet. The bridge would thus impede traffic by any boats that protrude more than seven feet above the water line. This presents no significant navigational impact in Indian Creek. There are two avenues for navigating from the bridge site on Indian Creek to the Caloosahatchee River. One of these avenues is presently obstructed by a bridge with an elevation less than that proposed by the Intervenor. The other avenue is obstructed by a very shallow area that will not permit navigation by other than very small vessels. The Department in the past has denied applications to dredge that shallow area. The Intervenor and the Department have submitted Proposed Findings of Fact. To the extent that these proposed findings have not been included in the foregoing Findings of Fact, they are hereby adopted as fully as if set forth herein.
The Issue Whether the applicants own the property in question? Whether the project would comply with the criteria of the South Florida Water Management District contained in Basis of Review for Surface Water Management Systems, specifically Sections 3.1.3 and 3.2? Whether flood protection would be inadequate or septic tanks unsuitable or whether the public health and safety would be compromised or the ultimate purchasers be deprived of usage of the property due to inundation in violation of Chapter 373, Florida Statutes (1981), or Rule 40E-4.301(1), Florida Administrative Code?
Findings Of Fact Ms. Williamson and Messrs. Leggett and Collins hold in fee simple a triangular 117.24-acre parcel in Okeechobee County as tenants in common under a warranty deed executed in their favor by one W. C. Sherman. They propose to develop the property as a trailer park (complete with airstrip) large enough to accommodate 109 trailers. To this end, soil would be dug up from the center of the property and used to raise the elevation of the surrounding land above the 100-year floodplain. (T. 47) The applicants have a dredging permit from the Department of Environmental Regulation authorizing them to excavate 629,889 cubic yards. They are proposing to dig to a depth of 76 feet below ground. This would create an 18-acre body of water ("Poe's Lake") which would overflow a V-notched weir into a county canal. The county canal would take the water to C- 38, one of the large canals to which the Kissimmee River has been relegated, at a point about 18 miles upstream from Lake Okeechobee. Runoff would wash over residential lots and roadways; the site would be graded to assure drainage into Poe's Lake. The minimum road crest elevation would be 30 feet NGVD ("[a]round twenty-nine feet" T.52), as compared to the control elevation for surface waters of 28.5 feet NGVD. WATER QUALITY The developers plan septic tanks for wastewater treatment. At the close of all the evidence, counsel for the applicants stated that sanitary sewers could be installed instead. Respondents' Proposed Recommended Order, p. With all the housing units in use, at least 10,900 gallons of effluent would seep into the ground from the tanks daily. There would be some evapotranspiration, but all the chemicals dissolved in the effluent would eventually end up in the groundwater. During the dry season, septic tank effluent would cause mounding of the groundwater and some groundwater movement toward, and eventual seepage into, Poe's Lake. The eventual result would be eutrophication and the growth of algae or macrophytes on the surface of Poe's Lake. This would cause dissolved oxygen violations in Poe's Lake. Discharges from the lake would inevitably occur, aggravating the situation in C-38, which already experiences dissolved oxygen levels below 5.0 milligrams per liter in the rainy summer months. Some fraction of the nutrients in the effluent from the septic tanks would ultimately reach Lake Okeechobee itself. The sheer depth of the excavation would create another water quality problem. Under the anaerobic conditions that would obtain at the bottom of Poe's Lake, bacteria acting on naturally occurring sulfates would produce hydrogen sulfide, ammonia and various other reduced organic nitrogen compounds. These substances are toxic to human beings and would, in some indeterminate quantity, enter the groundwater from Poe's Lake. This would affect the taste and perhaps the potability of water from any well nearby. It would be "possible to design a better system where there would be nutrient removal and a greatly reduced probability of violation of the dissolved oxygen criterion and obviation of the potential for ground water contamination." (T. 200) Installation of a baffle on the weir would serve to prevent buoyant debris from entering surface waters of the state. BASIS OF REVIEW Official recognition was taken of the "Basis of Review for Surface Water Management Permit Applications Within the South Florid Water Management District," parts of which all parties agree pertain in the present proceedings. Among the criteria stated in this document are: 3.1.3 Waste and Wastewater Service - Potable water and wastewater facilities must be identified. The Applicant for a Surface Water Management Permit must provide information on how these services are to be provided. If wastewater disposal is accomplished on-site, additional information will normally be requested regarding separation of waste and storm systems. 3.2.1.4 Flood protection - Building floors shall be above the 100 year flood elevations, as determined from the most appropriate information, including Federal Flood Insurance Rate Maps. Both tidal flooding and the 100 year, 3 day storm event shall be considered in determining elevations. b. Commercial and industrial projects to be subdivided for sale are required to have installed by the permittee, as a minimum, the required water quality system for one inch of runoff detention or one half inch of runoff retention from the total developed site. State standards - Projects shall be designed so that discharges will meet State water quality standards, as set forth in Chapter 17-3, Retention/detention criteria - Retention and/or detention in the overall system, including swales, lakes, canals, greenways, etc., shall be provided for one of the three following criteria or equivalent combinations thereof . . . Wet detention volume shall be provided for the first inch of runoff from the developed project, or the total runoff from a 3-year, 1-hour rainfall event, whichever is greater. Dry detention volume shall be provided equal to 75 percent of the above amounts computed for wet detention. Retention volume shall be provided equal to 50 percent of the above amounts computed for wet detention. 3.2.4.1 Discharge structures should include gratings for safety and maintenance purposes. The use of trash collection screens is desirable. Discharge structures shall include a "baffle" system to encourage discharge from the center of the water column rather than the top or bottom. 3.2.4.4.2 b. Control elevations should be no higher than 2 feet below the minimum road centerline elevation in the area served by the control device in order to protect the road subgrade. Simply detaining runoff before discharging it offsite will not insure that the water quality standards set forth in Chapter 17-3 will be met. Whether the standards are met depends on, among other things, the composition of the runoff. FWF'S INTEREST Among the purposes of the FWF, as stated in its charter, Shall be to further advance the cause of conservation in environmental protection, to perpetuate and conserve fish and wildlife, oil, water, clean air, other resources of the State and so manage the use of all natural resources, that this generation and posterity will receive the maximum benefit from the same. (T. 248-9) Four or five thousand Floridians belong to FWF. FWF members "make use" (T. 250) of the waters of Lake Okeechobee, the Kissimmee River and specifically of the waters in C-38. PROPOSED FINDINGS CONSIDERED The applicants and FWF filed post hearing memoranda and proposed recommended orders including proposed findings of fact which have been considered in preparation of the foregoing findings of fact. They have been adopted, in substance, for the most part. To the extent they have been rejected, they have been deemed unsupported by the weight of the evidence, immaterial, cumulative or subordinate.
Recommendation Upon consideration of the foregoing, it is RECOMMENDED: That SFWMD deny the pending application for surface water management permit. DONE and ENTERED this 29th day of November, 1983, in Tallahassee, Florida. ROBERT T. BENTON II, 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 29th day of November, 1983. COPIES FURNISHED: Dennis J. Powers, Esquire Gunster, Yoakley, Criser & Stewart 400 South County Road Palm Beach 33480 Terrell K. Arline, Esquire 325-C Clematis Street West Palm Beach, Florida 33401 Irene Kennedy Quincey, Esquire 3301 Gun Club Road West Palm Beach, Florida 33406 Charles P. Houston, Esquire 324 Datura Street, Suite 106 West Palm Beach, Florida 33401
The Issue This case arises out of the denial by the Department of Environmental Regulation of an application by the Petitioner to construct a 24-slip marina on Bayou Chico in Pensacola, Florida. At the formal hearing, Petitioner testified on his on behalf and offered and had admitted into evidence one exhibit. The Respondent called as its only witness, Jeremy Craft, and offered and had admitted into evidence four exhibits. Counsel for the Respondent submitted proposed findings of fact and conclusions of law for consideration by the Hearing Officer. To the extent that those proposed findings and conclusions are inconsistent with this order, they were rejected as not being supported by the evidence or as unnecessary to a resolution of this cause.
Findings Of Fact On March 18, 1982, Petitioner applied for a permit to dredge approximately 78,480 cubic yards from Bayou Chico and an unnamed embayment adjacent to the Bayou. The proposed project site is located in Pensacola, Florida, Bayou Chico in Section 59, Township 2 South, Range 30 West. Specifically, the project site is located on the south side of Bayou Chico just north of the Barrancas Avenue Bridge. On April 15, 1982, the Respondent, Department of Environmental Regulation, sent a completeness summary to the Petitioner requesting additional information before the application or permit could be processed. Over a period of approximately a year and a half, Department of Environmental Regulation conferred with Petitioner concerning the proposed project and a number of different plans were discussed. In July of 1983, Petitioner submitted the July 11, 1983 plan, with modifications, and withdrew all prior plans. It is this plan which is the subject of this hearing. A field appraisal of the proposed site was made by Department of Environmental Regulation on December 25, 1982. On August 31, 1983, Department of Environmental Regulation issued an Intent to Deny the Petitioner's permit application. The Intent to Deny encompassed all plans and revisions submitted by the Petitioner, Department of Environmental Regulation based its denial on Petitioner's failure to give reasonable assurances that water quality standards would not be violated by his project. The Department's denial also asserted that the project would also result in matters adverse to the public interest. The final proposal submitted by the Petitioner sought a permit to dredge a strip 100 feet wide by 450 feet long to a depth of 6 feet. This strip is adjacent to a spit or strip of land which separates Chico Bayou from the emboyment. This plan was subsequently modified to include dredging an additional 100 to 150 feet along the full length of the strip. This additional dredging would take the dredged area out to the deep water of Chico Bayou and was intended to eliminate a channeling effect. The purpose of the dredging is to enable the Petitioner to construct a marina or docking facility along the split. The marina would include 24 slips. The proposed dredge area gradually slopes from the shoreline to five and six foot depths 200 to 250 feet from the spit. The water in the embayment is highly polluted and at one time was used as a holding pond for mahogany logs because the wood-boring worms could not survive in the water. Bayou Chico is also very polluted and fails to meet the water quality standards found in Rule 17-3.121, Florida Administrative Code, for the parameters lead, cadmium, copper, and aluminum among others. The bayou has for many years been used for boat and barge traffic. Jeremy Craft testified on behalf of DER and his opinions as to the impact of the project on water quality and marine life were uncontroverted. In Mr. Craft's opinion, the dredging proposed by the Petitioner would result in further degradation of the water quality in Bayou Chico by eliminating important shallow areas and underwater grasses. The deepening of the dredged area would limit the amount of oxygen available to the water in the bayou thereby harming the aquatic life by freeing many of the heavy metals which are presently bound in the sediments in the bayou. The shallow areas are the most important areas in cleansing the water. With increased oxidation, the biota survive better and the water is better cleansed. Freeing the heavy metals would allow their introduction into the food chain and accumulation in living organisms. The Petitioner has not informed DER of his specific dock specifications, stormwater plans, upland development plans, or dredge disposal plans. The type of dock will determine the type of boating traffic and this will indicate the amount and content of stormwater discharge. Because of the contaminated nature of the spoil, the Petitioner must provide reasonable assurances that the spoil and spoil water will be properly retained. Petitioner testified on his own behalf but did not present any evidence relating to the impact the proposed prod act would have on water quality.
Recommendation Based upon the foregoing findings of fact and conclusions of law it is RECOMMENDED That the Department of Environmental Regulation enter a final order denying the Petitioner's application for a permit as set forth in the Intent to Deny previously issued by the Department. DONE AND ORDERED this 24th day of May 1984, in Tallahassee, Florida. MARVIN E. CHAVIS Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 FILED with the Clerk of the Division of Administrative Hearings this 24th day of May 1984. COPIES FURNISHED: David K. Thulman, Esquire Assistant General Counsel 2600 Blair Stone Road Tallahassee, Florida 32301 (904)488-9675 Joe Pair 1200 Mahogany Mill Road Pensacola, Florida 32907 Victoria Tschinkel, Secretary Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32301
