Findings Of Fact On June 15, 1977, Respondent Department of Transportation (DOT) filed application with Respondent Department of Environmental Regulation (DER) for a permit to relocate 5,188 linear feet of an existing canal commonly referred to as Cypress Strand Canal in Manatee County, Florida. The application and accompanying drawings show that the scope of the project is not merely limited to relocation of the canal, but other dredge and fill activities in the surrounding area incident to the construction of a highway interchange over State Road 64 approximately four and one-half miles east of Bradenton, Florida. On March 15, 1978, DER issued a Notice of Intent to issue a permit for the application pursuant to Chapter 403, Florida Statutes, and Public Law 92-500. In its notice, the extent of the project was described as follows: PROJECT: To construct an interchange where I-75 will intersect SR-64 by: filling 5,188 linear feet of a channelized cypress stand by placing 27,100 cubic yards of fill in the existing ditch; excavation of 38,250 cubic yards of material to create a new ditch 4,455 feet long; placement of 195,176 cubic yards of fill in an existing borrow pit to construct a road causeway with 241 linear feet of 72 inch RCP and 288 linear feet of 54 inch RCP placed under the causeway to provide water exchange; placement of 161 linear feet of double 8 ft. by 7 ft. box culvert in the new ditch for the crossing of SR-64; placement of 292 linear feet of 8 ft. by 7 ft. box culvert in the new ditch for the crossing of I-75; placement of two 24 inch and one 42 inch pipe to drain runoff from the interchange into the new ditch. The notice also stated that the proposed permit would be subject to certain conditions, including the placement of silt screens downstream from any construction, completion of ditch (canal) relocation and box culvert construction prior to placing fill in the existing canal, sodding of side slopes of causeway fill, and submission of weekly monitoring reports of turbidity before and during construction at certain locations. The letter provided that if monitoring revealed apparent violations of state water quality standards for turbidity, construction activities must cease immediately and not resume until corrective measures have been taken and turbidity has returned to acceptable levels. The letter also required that state water quality standards prescribed in Chapter 17-3, Florida Administrative Code, must be met by the DOT. (Exhibits 21 -22) The general area surrounding the project site consists of partially wooded pasture land and some residential development in the southwest portion. A cypress "head" consisting of almost eight acres lies east of the existing Cypress Strand Canal on the south side of SR-64 in the area where the relocated canal is proposed. The proposed roadway also will go through part of this cypress area. The bald cypress trees there are quite old and most reach a diameter of eight to ten feet. It is considered to be one of the few cypress stands to be found in Manatee County. In order to avoid the construction of bridges for the proposed highway in this area, DOT plans to fill approximately five and one-half acres with consequent removal of most of the existing trees in the filled area. Although there is standing water in the cypress hammock area, only an insignificant amount of surface water flows from there to the canal due to the higher elevation of the canal. It was for this reason that the DER supervisor of the dredge and fill section determined that the cypress head was not contiguous to waters regulated by the department. This decision, which was adopted by the Director of the DER Division of Environmental Permitting, in effect, overruled a recommendation by a DER field representative who had conducted an appraisal of the application and determined that the cypress head acts as a preliminary filtering are before the waters empty into the cypress creek salt marsh which then flows into the Manatee River. Expert testimony establishes that the DER position is correct in this respect and that only an insignificant amount of water leaves the cypress pond area into the canal. (Testimony of Allen, McWilliams, Wanielista, Exhibits 6-13, 17, 18, supplemented by Exhibits 15-16, 20.) On the north side of SR 64, the proposed relocated canal and roadway would be constructed through a "borrow pit" which covers approximately 39 acres. It is proposed to fill approximately 12 acres of this area. The remainder will contain water which acts as a "kidney" to filtrate water flowing from the canal and this area will be more than sufficient to adequately perform such a function. (Testimony of Allen, Wanielista, Exhibits 17-18.) The proposed roadway and ramps at the interchange over SR 64 are designated to retard or slow down the surface water movement to minimize degradation of water quality. To this end, the amount of exposed earth fill will be limited to the extent possible, and after the fill is placed in position, various types of erosion control will be accomplished, such as sodding slopes and building earth berms along the top of the roadway. Hay bales will be placed at the "toe" of the slopes during construction to further retard water movement and the introduction of sediment into waterways. Silt barriers termed "Florida diapers" which consist of a floating barrier of vinyl material will be placed strategically to prevent movement of silt past the barrier. This type of screening has proved to be effective in the past in situations involving relatively still water. Although various nutrients, metals, and chemicals will accumulate on the roadway and slopes during operations, the foregoing methods of retarding flow will serve as filters to reduce degradation of water quality. Additionally, depressions will be made in median areas to permit percolation into the roadway fill material. The "infield" or areas inside the circular ramps, consisting of approximately 20 acres, will be vegetated by the planting of some 150 cypress trees. The 80-foot-wide median area will also be vegetated. The concrete box culverts for the crossing of the proposed roadway will replace some 550 feet of the existing canal and will cause a somewhat accelerated flow of water. Overall, however, in the opinion of Respondents' expert witness, runoff from the interchange area will not measurably increase pollution in the Cypress Strand Canal or the Manatee River. It is his view that much of the water will percolate into the interchange ground area and that any remaining flow will result in 90 percent removal of pollutants by the various proposed methods of erosion control. In fact, the expert is of the view that the project is "overdesigned" at the present time and that the interchange infield design plus the filtering action that will take place in the borrow pit is more than sufficient to insure minimum degradation of water quality. (Testimony of Allen, Wanielista, Exhibit 13, 23.) All contracts for DOT roadway construction involve a special clause termed "Erosion Control and Pollution Abatement" that requires the building contractor to perform the various erosion control measures connected with the project. At a preconstruction conference, the contractor is required to tell DOT the specific manner in which such measures will be accomplished. During the construction phase, representatives of DER monitor the progress and recommend any necessary changes to meet State water quality requirements. Similar monitoring is required after construction and during operation of the roadway for the life of the permit. Although no precise data on the extent of any water degradation can be obtained until after construction commences, past experiences of the DER with the standard DOT construction contracts have proved the measures taken thereunder effectively maintain water quality standards. On this basis, the DER determined that DOT had provided reasonable assurances that construction of the interchange would not result in exceeding State water quality standards. (Testimony of Allen, McWilliams.) Various objections against granting the requested permit have been expressed by members of the public and environmental groups. Although most of these witnesses acknowledge the need for the I-75 extension, they were of the opinion that the roadway should be relocated to the east away from the cypress wetlands area. Additionally, written communications received in evidence from the U.S. Department of Commerce, Florida Division of Forestry, Manatee Health Department, and the United States Department of Fish and Wildlife Service raised objections to the proposed project based upon the elimination of the Cypress Stand area and recommended either relocation of the interchange or preservation of the existing wetlands. (Testimony of Duisburg, Belmont, Miller, Flisik, Matey, Quy, Exhibits 4, 14-16, 19.) Other public witnesses representing the City Council of Palmetto, Florida, the Board of County Commissioners of Manatee County, Florida, Manatee County Chamber of Commerce, City Commission of Bradenton, Florida, and private interests recommended approval of the application. The testimony of these witnesses and various resolutions from governmental bodies primarily focused on the urgent need for construction of the I-75 interchange to promote the economic and general welfare of the area residents and promote safety on the highways. (Testimony of Gallon, Holland, Prather, Neal, Price, Reasoner, Coates, Wiseman, T. Harllee, Jr., T. Harllee, Pinardi, Harden, Exhibits 1-3, 5, 24.)
Recommendation That the Department of Environmental Regulation issue the requested permit to the Department of Transportation. DONE AND ENTERED this 19th day of July 1978 in Tallahassee, Florida. THOMAS C. OLDHAM Hearing Officer Division of Administrative Hearings 530 Carlton Building Tallahassee, Florida 32304 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 19th day of July 1978. COPIES FURNISHED: Honorable Jay Landers, Jr. Secretary Department of Environmental Regulation 2600 Blairstone Road Tallahassee, Florida 32301 Alfred W. Clark, Esquire Assistant General Counsel Department of Environmental Regulation 2600 Blairstone Road Tallahassee, Florida 32301 James W. Anderson, Esquire Assistant General Counsel Department of Transportation Haydon Burns Building Tallahassee, Florida 32304 Judith Smith Kavanaugh, Esquire 543 Tenth Street, West Bradenton, Florida 33505
Findings Of Fact Upon consideration of the oral and documentary evidence in the record, as well as the pleadings and joint prehearing stipulation, the following relevant facts are found: Cast-Crete owns and operates a concrete batch plant in Hillsborough County, Florida, and manufactures concrete products such as reinforced beams, lintels, seals and drainage structures on the property. The plant is located on the west side of State Road 579, 3/4 mile north of Interstate 4, Section 28, Township 28 South, Range 20 East. The concrete products are manufactured in various forms which are laid out over a large portion of Cast-Crete's property. Lubricating oils are utilized to facilitate the removal of the product from the confining forms. During this process some of the lubricating oil is spilled onto the ground. Also, cleaning solutions containing degreasers are utilized to wash the concrete trucks eight to ten times per day. This solution ends up on the ground. Aggregate limerock (crushed limestone) is used in the concrete formulation process and is stored in large piles on the property. In order to contain the dust, water is sprayed on the aggregate piles 24 hours a day. The wash water from the continuous process of wetting the aggregate, other waste water and some stormwater is channeled through the property and into a settling pond in the northwest corner of Cast-Crete's property. This pond discharges continuously off the property by way of a concrete flume into a county maintained ditch. Water in the ditch travels in a westerly direction approximately 200 to 300 yards before it passes under Black Dairy Road, where the watercourse deepens and widens. The ditch discharges into a marshy area which drains into Six Mile Creek and other water bodies. The pond at the northwest corner of Cast-Crete's property is equipped with a metal skimming device to remove oils and greases floating on the surface of the pond. Nevertheless, it is estimated that approximately 100 gallons of oil per year are discharged by Cast-Crete. Oil and grease in the outflow water is occasionally above 5 mg/L. Oil and grease layers have been observed on water at both Black Dairy Road and Six Mile Creek, probably resulting from road run- off. Approximately 90 percent of the water discharged from the property is a result of the wetting or washdown of the aggregate piles. The excess water which comes from the aggregate piles is laden with dissolved limestone, lime and limestone particles. This limestone dust raises the pH level of the water. Because of the continued wetting of the aggregate, water flows through the settling ponds and off of Cast-Crete's property at a rate of approximately 4.8 gallons per minute, or 7,200 gallons per day or 2.5 million gallons per year. During a rain event, the flow increases markedly. Except during times of heavy rainfall, water flowing from the respondent's property provides a thin stream of water in the drainage ditch approximately six inches wide and several inches deep. The pH of the wastewater from Cast-Crete's discharge flume is between 10 and 11 units. During high volume flows, the pH remains at or above 11 units. An increase of one unit of pH in the wastewater means that the wastewater has become 10 times more basic, since pH is measured on a logarithmic scale. The natural background of unaffected streams in the area of and in the same watershed as the Cast-Crete property is less than 8.5 units. Specific conductance or conductivity is the measure of free ions in the water. Typical conductivity readings from other water bodies in Hillsborough County range between 50 and 330 micromhos per centimeter. The specific conductance of Cast-Crete's wastewater ranges from 898 to 2000 micromhos per centimeter. This is due to the presence of calcium carbonate and calcium hydroxide in the water. Blue-green algae is the dominant plant species in the ditch between the Cast-Crete discharge flume and the first 150 meters of the ditch. A biological survey of the ditch system indicates that the diversity of species east of Black Dairy Road is low. This is attributable in part to the high pH of the wastewater. The low diversity can also be attributed to the fact that the County maintains the ditch by use of a dragline on an annual basis. Background samples from a site within one mile to the northwest of the Cast-Crete property were taken. The site (a stream passing under Williams Road) is an appropriate place to take background samples because the water there is unaffected by Cast-Crete's discharge or other man-induced conditions. The pH background sample ranged from 4.6 units to 5.1 units. The specific conductance background samples ranged from 70 to 100 micromhos per centimeter. Samples taken from a site potentially impacted by Cast-Crete's discharge showed a pH level of from 6.35 to 7.37 units and specific conductance of from 592 to 670 micromhos per centimeter. Cast-Crete discharges water from its concrete plants operation without a permit from the DER.
Recommendation Based upon the findings of fact and conclusions of law recited herein, it is RECOMMENDED that a Final Order be entered requiring respondent to submit a complete application for an industrial wastewater permit within thirty (30) days, and that, if it fails to do so, it cease discharging wastewater from its property until such time as an appropriately valid permit is issued by the DER. Respectfully submitted and entered this 3rd day of May, 1985, 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 3rd day of May, 1985. COPIES FURNISHED: David K. Thulman Assistant General Counsel Department of Environmental Regulation Twin Towers Office Building Blairstone Road Tallahassee, FL 32301 W. DeHart Ayala, Jr. 501 E. Jackson Street Suite 200 Tampa, FL 33602 Victoria Tschinkel Secretary Department of Environmental Regulation Twin Towers Office Building 2600 Blairstone Road Tallahassee, FL 32301 ================================================================= AGENCY FINAL ORDER ================================================================= STATE OF FLORIDA DEPARTMENT OF ENVIRONMENTAL REGULATION DEPARTMENT OF ENVIRONMENTAL REGULATION, STATE OF FLORIDA, Petitioner, vs. CASE NO. 84-1647 CAST-CRETE CORPORATION OF FLORIDA Respondent. /
Findings Of Fact By an application filed with the Department of Environmental Regulation on October 28, 1980, Pinellas County requested a dredge and fill permit to- construct a road and bridge crossing with an associated stormwater treatment system in connection with the improvement of County Road No. 1 across Curlew Creek and its wetland flood plain. The specific location of the project is in Section 12, Township 28 South, Range 15 East, in the City of Dunedin, Pinellas County, Florida. The project will involve the dredging of approximately 2,639 cubic yards of soil and include the placement of approximately 1,605 cubic yards of fill in the creek bottom. After an evaluation of the initial application the Department issued a letter of intent to deny the application on March 17, 1982, but the denial suggested several modifications to the project which were accepted by the County when it filed an amended application on September 30, 1932. It is on the basis of this amended application that the Department issued its notice of intent to grant on November 5, 1982. The County's initial application was complete before February I, 1982, the effective date of Chapter 17-25, Florida Administrative Code, the Department's new stormwater discharge rules. The Petitioners jointly own real property on which they reside immediately to the west and downstream of Curlew Creek. Their property is riparian to the creek. Curlew Creek is a natural water body which runs from near U.S. Highway 19 in a westerly direction to the Gulf of Mexico in Dunedin, Florida. It is an unnavigable Class III water of the state. At times it carries a heavy stormwater runoff load and passes private residences such as Petitioners' which border the creek in many areas. During design storm events there has been flooding when the creek exceeds its historic flood plain. That flooding has come up into Petitioners' back yard. At the project site where the creek now runs under the existing span for County Road No. 1, the creek is approximately 25 feet wide and 2 feet deep. The creek bottom is flat and consists of deep fine sand. The banks are well vegetated with a dense scrub layer and many large trees. This vegetation provides good soil stabilization and prevents erosion of the creek banks. Curlew Creek is presently traversed by County Road No. 1 over a two- lane bridge. Because of increased traffic flow the County proposes adding another bridge span to carry two more lanes of traffic. When the additional two lanes are complete the center line of the entire bridge complex will be moved to the west of its present location and therefore be closer to Petitioners' residence. Petitioners primary concern in opposing the project is their belief that when completed the project will increase the potential of Curlew Creek to flood their land. Curlew Creek, which generally runs in an east-west direction, takes a sharp bend to the south on the downstream side of the existing bridge. It later resumes its course to the west toward St. Joseph's Bay and the Gulf of Mexico. The creek's rapid change of direction underneath the bridge caused some confusion when the Department of Environmental Regulation issued its notice of intent dated November 5, 1982, to grant the requested dredge and fill permit. Condition number one for issuing the permit stated "The existing vegetation in an area more than 50 feet up and downstream from the bridge railing will not be disturbed except in the area of detention pond number 3 on the northeast side of the bridge." The author of the notice had intended that the condition mean vegetation would not be disturbed any further than 50 feet to the east or 50 feet to the west of the planned bridge railing, and not 50 feet upstream or downstream. The project plan is to remove a small sand spit which projects into the creek from the east bank immediately to the south of the bridge. Additional minor dredging is planned to smooth the water flow through the bridge area. Fill will be deposited to also provide a smoother water flow and consequently cut down on the eddies which presently arise under the bridge. The result of improved stream flow will be a reduction in the erosion of the creek banks and a lessening of turbidity in the creek water. Because the construction proposed will result in removal of certain vegetation along the creek bank which now provides soil stabilization, the County plans to use wet sand cement riprap or gabions for slope protection to stabilize the soil. Either method provides adequate erosion protection to ensure that the standards for Class III surface waters of the state will not be violated if the conditions of the proposed permit are followed. The expanded stormwater runoff facilities which are part of the project, as modified and subject to the condition in the Department's letter of intent to grant, will not have a significant impact on the water quality of Curlew Creek. These facilities provide adequate retention and settling capacity to ensure that the stormwater which eventually discharges into the creek will not cause pollution.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Department of Environmental Regulation enter a Final Order approving the application of Pinellas County for a dredge and fill permit in order to construct the above described project in accordance with the conditions set out in the Department's letter of intent to grant dated November 5, 1982. DONE and RECOMMENDED this 24th day of October, 1983, in Tallahassee, Florida. MICHAEL P. DODSON Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 24th day of October, 1983.
Findings Of Fact Respondent TCI has more than 70 homes completed or under construction in furtherance of plans to build 141 single family residences as part of Tymber Creek Phase I, a development in Volusia County. The development site is partially bounded by the Little Tomoka River, a natural body of water which is navigable in fact. The site of the construction respondent DER proposes to permit is home to wildlife of various kinds, including woodpeckers, great horned owls, herons, mussels, manatees, snakes, turtles and alligators. At the present time, boat traffic on the Little Tomoka River is negligible. The dock TCI proposes to build would have a total area of 120 square feet and would not impede the flow of the river. It would protrude over the water no more than five feet along the bank of the river at a point where the river widens, described by some of the witnesses as a lagoon, and would not constitute a hazard to navigation. With respect to the dock, the foot bridges, the boat ramp and the removal of the agreed upon portion of unauthorized fill, the permit DER proposes to issue would be before the fact. According to DER's appraisal of TCI's original, revised permit application, which was received in evidence as DER's exhibit No. 5, TCI made revised application, on November 29, 1977, for "after-the-fact approval for the placement of approximately 3500 cubic yards of fill After TCI had filled, it constructed parking and recreational facilities. In evaluating TCI's application, Steve Beeman, a DER employee, described the site in January of 1978: Approximately 1.6 acres of filled flood plain is presently covered by a sports complex including tennis courts, swimming pool and recreation building and an asphalt parking lot. An additional 3000 square feet has been filled and paved (asphalt was applied after receipt of DER cease and desist notice) for [access to] a [proposed] boatramp and parking area, and approximately 14,000 square feet of swamps have been filled in the construction of a 1800+ feet "natural trial". DER's exhibit No. 5. By letter dated February 22, 1978, respondent DER notified respondent TCI of its intent to deny TCI's initial application, as revised. Among the reasons DER gave for its intended denial were expected violations of various water quality standards, including a prohibition against oils and greases in concentrations greater than 15 mg. per liter ("or that no visible oil, defined as iridescence, be present to cause taste or odors, or interfere with other beneficial uses.") DER's exhibit No. 4. Rule 17-3.05(2)(r) , Florida Administrative Code. This water quality standard violation was anticipated because of "the [projected] focussing of stormwater runoff into the Little Tomoka River, across paved surfaces, which are high in petroleum based pollutants." DER's exhibit No. 5. In its notice of intent to issue a permit, DER proposes to authorize TCI "to realign (straighten) existing boatramp access road." DER's exhibit No. Mr. Wheeler's letter to Mr. Shirah of April 6, 1978, DER's exhibit No. 2, describes the proposed access road change as part of "discussions and agreements concerning resolution of the initial unauthorized fill and subsequent after-the- fact application." A drawing attached to this letter indicates that the contemplated alteration of the roadway would decrease the amount of paved surface to some unspecified extent. Another part of these "discussions and agreements concerned removal of some 1900 cubic yards of fill. Most of the fill designated for removal had been placed with the idea of creating a dry pathway through the marshy area separating the Little Tomoka River from an asphalt parking area. So placed, the fill dirt acts as a dike, preventing the preexisting communication between the waters of the Little Tomoka River and the waters of the adjacent marsh. At the hearing, Mr. Wheeler testified that, if revised in accordance with DER's exhibit No. 2, TCI's project would pose no threat to water quality, but he conceded that the effects of gasoline boat motors were not considered. An increase in beat traffic would likely result in an increase in oils and greases in the waters of the Little Tomoka River.
Recommendation Upon consideration of the foregoing, it is RECOMMENDED: That respondent DER, deny the permit is proposed to issue to respondent TCI in letters to petitioners dated April 7, 1978. DONE and ENTERED this 23rd day of August, 1978, in Tallahassee, Florida. ROBERT T. BENTON, II Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Segundo J. Fernandez, Esquire Assistant General Counsel Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida Judson I. Woods, Jr., 32301 Esquire Post Office Box 1916 Ormond Beach, Florida 32074 Tymber Creek, Inc. c/o Stan Shirah Route 40 Twin River Drive Ormond Beach, Florida 32074
The Issue This case presents two questions for consideration. The first question concerns the Petitioners' contention that the grant of the permit at issue must be considered contemporaneously with the matters of file in the application made by the Respondent, The Deltona Corporation, with the Respondent, State of Florida, Department of Environmental Regulation, File No. 64-24208, pending before the Department. From the point of view of the Petitioners, should this contemporaneous review process be afforded, then the current permit would not be granted due to the alleged deficiencies associated with the application, File No. 64-24208. The second question to be answered in this case concerns the dispute between the Respondents on the issue of water quality monitoring as a condition to granting the permit sought herein. The Respondent Department would have the applicant monitor in six lakes in the area of the project and the applicant would restrict its monitoring activity to three lakes in the project area. The Petitioners support the Department in its position on the monitoring question. 1/
Findings Of Fact The Respondent, The Deltona Corporation, has made application with the Respondent, State of Florida, Department of Environmental Regulation, to effect drainage system improvements to a land locked conveyance network which consists of the enlargement and regrading 990 lineal feet of existing channel cross- section and the installation of additional culverts and control structures at road crossings. The project also involves repairs and replacement of a damaged culvert. The work would be accomplished by land based equipment transported to the work site by existing overland routes. The excavated sand fill would be placed on upland property owned by The Deltona Corporation. The details of the project and data related to the geographical area may be found in the Joint Exhibit I admitted into evidence. The date of the application for permit is December 12, 1979. On January 25, 1980, the Department of Environmental Regulation sent out a notice of the pending review by the Department of the permit application. After receipt of that notice, attorney for the Petitioners, on February 12, 1980, wrote to the Department expressing the objection to the project made by property owners in the area of the project site, together with a list of those owners found in an attached Petition of owners' names and addresses. A copy of this letter and attached Petition may be found as Joint Exhibit No. VII admitted into evidence. Subsequent to the receipt of the statement of objections, the Department issued a construction permit dated April 30, 1980, subject to conditions. A copy of this permit may be found as Joint Exhibit No. VIII admitted into evidence. The Petitioners, through their counsel, then filed a formal petition dated May 6, 1980, which was the vehicle utilized in establishing the details of this dispute and was the basis for the Department Secretary forwarding the case to the Division of Administrative Hearings for consideration by a hearing officer in keeping with the provisions of Section 120.57, Florida Statutes. The hearing was conducted on October 16, 1980, and the Petitioners' position was more specifically defined in the course of that hearing and the claim as described in the issue statement of this order constitutes the substance of the Petitioners' position. 2/ Joint Exhibit No. I; petitioners' Exhibit No. 1 and Respondent Deltona's Exhibits 1, 2 and 4 constitute sketches and aerial photographs of the general project area. Joint Exhibit No. 1 identifies the work area with more particularity. Respondent's Exhibit No. 2 indicates the desired flow pattern of the water through the various lake systems and indicates whether the flow is by gravity flow or pump flow. This drawing depicts the proposed channels and structural improvements that would be involved. The Department has indicated that all the regulatory concerns which it has about the project associated with Permit No. 64-26478-4E, the permit in question, have been adequately addressed, subject to the conditions set forth in the permit document. Joint Exhibit Nos. V and VI; Respondent Deltona's Exhibit Nos. 5, 6 and 7; and the Petitioners Exhibit No. 2 are exhibits pertaining to water quality concerns, to include sample results. The testing and other information provided indicates that the project as contemplaced, would meat the regulatory parameters set forth in Chapter 403, Florida Statutes, and Chapters 17-3 and 17-4, Florida Administrative Code. The Department in expressing its concern that continued water quality monitoring be conducted has indicated that it feels that future periodic monitoring should be done in Jenkins Pond, Lake Big, Lake Diana, McGarity Lake, Sidney Lake and Lake Mitnik. The Respondent Deltona would only conduct this monitoring in the first three lakes named. By looking at the Respondent Deltona's Exhibit No. 2, it could be seen that all of the aforementioned lakes would be in the same basic flow pattern. Of the system of lakes, the area around McGarity Lake is the most highly developed and and has the greatest potential for causing unacceptable pollution. That pollution could be carried through the other lakes within the system as described in view of the potential of the system, if the project is built, to convey a greater volume of water at a higher rate of flow. A more expansive water quality monitoring system within six lakes as opposed to three lakes would increase the opportunity to discover potential hazards from pollutant at an earlier data. This is particularly so by using lakes such as McGarity Lake where there is a higher level of developmental build-out.
Findings Of Fact Petitioner St. Johns Trading Company is a corporation solely owned by Donald W. Tredinick. It owns a tract of land in Putnam County, Florida, that is devoted primarily to the growth and harvesting of pine trees. The tract is predominantly a pine and hardwood swamp area with typical vegetation indigenous to that type of environment. The headwaters of Acosta Creek originate in a swampy area in the easterly portion of the tract and flow in a southwesterly direction several miles where it empties into the St. John's River. Acosta Creek is wholly contained within the borders of petitioner's land. It's depth varies from one to one and one-half feet and it is approximately eight to ten feet in width at the site of the proposed project. Several cleared areas exist upstream from that point that were planted in watermelon several years ago. A post-hearing sworn statement received from Tredinick states that an upland field of watermelons was fertilized in June, 1977, at a point about two miles southeast of the proposed dam site which drains into Acosta Creek. It is petitioner's practice to plant and fertilize melons the first year after land is cleared and then plant pine trees which are not fertilized. The stream is typical of those found in that section of north Florida with a sandy bed and some algae growth of moderate density. It sustains a small fish population of no great environmental consequence. There are few animals in the area with the exception of a number of burros which are kept as pets. At the proposed project site, some 6,000 feet upstream from the St. John's River, there exists a dirt trail on either side of the stream which presently is crossed by a narrow causeway over an existing wood culvert. (Testimony of Buck, Baxter, Ray, Barber, Petitioner's Exhibits 1,4,5; Affidavit of Tredinick) In November 1976, petitioner submitted an application for a permit to respondent to replace the wooden culvert under the causeway with two five-inch corrugated metal pipes in the streambed. This application was granted. Thereafter, however, petitioner determined that he wished to enlarge the causeway in order to permit passage for trucks carrying pulpwood across Acosta Creek. The existing culvert was insufficient to sustain the weight of the trucks. It was also decided that by raising the culvert pipes three feet from the streambed, an impoundment would be created that would result in a lake covering about three or four acres of land. To this end, petitioner filed an application with respondent on February 10, 1977, requesting a permit to construct the two five-foot diameter corrugated metal pipe culverts and two two- foot diameter culverts at an elevation three feet above the existing flow line of the stream, and to extend the existing causeway to 192 feet on either side of the north five-foot pipe with a minimum cover of 1.5 feet over the pipes. It was anticipated that this would create a three-foot deep lake. It was further proposed in the application that 1904 cubic yards of fill material be removed from the stream bottom which would be taken from three areas on the project site. These "borrow" pits would be located on the northern end and southeastern portions of the project. At the hearing, it was determined that an error had been made in the amount of fill material necessary and that only 1,003 cubic yards would be required. Two silt screens constructed of burlap, canvas material, or wire mesh were proposed to be placed downstream from the project on a temporary basis during construction. (Testimony of Buck, Petitioner's Exhibit l) A "driveway" permit was issued by the Putnam County Engineering Department on February 7, 1977, permitting the installation of the proposed culverts. However, this permit was only effective for a period of 45 days. (Petitioner's Exhibit 2) Respondent's field inspector, Ed Barber, an Environmental Specialist II, from the St. John's River subdistrict office, inspected the site of the proposed project on May 26, 1977, and thereafter rendered a report on his appraisal of the permit application. He noted that Acosta Creek supported an algal growth of unusually high proportions and attributed this to the possibility of high nitrate and phosphate input from upland farming activities. Although Barber did not personally observe such activities, he testified at the hearing that Buck had informed him that there were watermelon areas under cultivation upstream. His main concern was that the holding pond that would be created by the impoundment could become a nutrient trap and undergo a plankton bloom the following spring, which could have deleterious effects on local flora and fauna. For this reason, he recommended that the permit be denied for biological reasons. Also in the report was his estimation that the project would interfere with fish and wildlife population, that turbidity would exceed standards, and dissolved oxygen would be depressed below the value of five parts per million for Class III waters, and that coliform counts would exceed existing criteria. There is no evidence that petitioner had submitted biological or water quality data with his application. Barber's supervisor, David Scott, reviewed the matter in April and also recommended denial of the permit because the proposed lake would act as a nutrient trap and eliminate shallow water hydrophytes which maintain water quality by assimilating and transforming nutrients. He was further of the opinion that the "borrow" site would create discontinuities in the lake that in turn would concentrate silt settlements and organic debris. Based on the above recommendations, the acting subdistrict manager, G. Doug Dutton, advised petitioner by letter of June 7, 1977, of intent to deny the application for the reason stated in Scott's recommendation. The letter further stated that degradation of local water quality was expected with regard to dissolved oxygen, BOD, deleterious materials, toxic substances and bacteriological aspects, specifically, fecal coliform. Petitioner requested a hearing in the matter on June 20, 1977, contending that the decision was arbitrary and capricious in that respondent had acted upon a presumption, unsupported by fact, that the proposed causeway extension would cause water quality degradation. (Testimony of Barber, Scott, Dutton, Respondent's Exhibits 1,2,4) Petitioner then engaged a biologist to conduct water analyses at the site. Water samples were taken from Acosta Creek in July, August, and September, 1977. They revealed no abnormal concentrations except for nitrogen and phosphorus. Nitrogen was unusually high in the July sample, but this was attributed to the presence of burros in the area during the sampling. The September nitrogen sample tested at 0.4 mg/1. Phosphorus, however, both in the July and September samples, was unusually high. However, the source of the phosphorus input was not established. Fecal coliform was somewhat high in the September sample, but this was attributed to excessive rainfall during that period. Although the report indicated that further sampling would be made as to phosphorus concentration, no evidence was submitted in this respect. The biologist found that the proposed pond would be of value in that fish propogation would be encouraged and that no unusual biological problems could be anticipated because water turnover rates behind the impoundment would be approximately two per day during the dry season. Petitioner's hydrologist found that the flow through the impoundment would occur at least once a day. He further is of the opinion that the impounded water would be helpful as a barrier in case of forest fires and that it could possibly increase recharge of aquifers. Additionally, he believes that the presence of the pond would slow the flow of water in case of an unusually severe storm, thereby reducing the possibility of flood conditions. Respondent's hydrologist found no major hydrologic problems arising from the project, but recommended that the three potential borrow areas be combined into one of a circular shape or that a new upland borrow site be used to prevent the chance of flooding during severe weather conditions. (Testimony of Baxter, Ray, Simmons, Murali, Petitioner's Exhibits 3,4, Respondent's Exhibit 3) Testimony of respondent's experts established that insufficient water quality data had been submitted to determine whether nutrient input to the impounded area would create excessive algal growth and consequent long-term possibility of eutrophication of the lake. Although conceding that the relocation of the proposed borrow pits would also aid in retaining surrounding grasses that filter nutrients, they nevertheless were of the opinion that impoundment was not a "good idea" and would eventually lead to degradation in water quality. However, petitioner was not advised of the insufficiency of information submitted with his application as to water quality data until he received the notice of intent to deny the permit. (Testimony of Barber, Scott, Dutton, Respondent's Exhibit 3) Based on the foregoing, it is found that (a) the petitioner has provided respondent with insufficient information as to water quality to properly determine the long-range consequences of permitting construction and operation of the impoundment; and (b) the redesign or movement of the borrow sites will substantially reduce the possibility that water quality of Acosta Creek will be impaired by the proposed construction and operation of the impoundment.
Recommendation That petitioner be permitted a reasonable period of time to provide further information concerning the proposed project and that such information be taken into consideration by the respondent prior to issuance of a final order herein. DONE and ORDERED this 18th day of November, 1977, in Tallahassee, Florida. THOMAS C. OLDHAM Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Sheri Smallwood, Esquire Department of Environmental Regulation 2562 Executive Center Circle, East Montgomery Building Tallahassee, Florida 32301 Robert E. Solomon, Esquire 3205 Blair Drive Palatka, Florida 32077 ================================================================= AGENCY FINAL ORDER ================================================================= BEFORE THE STATE OF FLORIDA DEPARTMENT OF ENVIRONMENTAL REGULATION ST. JOHNS TRADING COMPANY, Petitioner, vs. CASE NO. 77-1204 STATE OF FLORIDA, DEPARTMENT OF ENVIRONMENTAL REGULATION, Respondent. /
Findings Of Fact Description of Proposed Fill Project DER proposes to deny three alternative proposals to fill all or part of Petitioners' real property located in Key West, Florida. The property is rectangular, approximately three acres in size, with 300 feet bordering Roosevelt Boulevard (High-Way A1A) to the south and approximately 300 feet bordering Key West International Airport to the north. The easterly property line is 489.4 feet and the westerly line is 434.63 feet. The Straits of Florida (Atlantic Ocean) are immediately on the other side of Roosevelt Boulevard to the south. The property has a strip of approximately 90 feet of upland and transitional wetland adjacent to Roosevelt Boulevard, with the rest of the property being covered by a salt pond of approximately 40 acres in size (Jnt. Ex. 1). Petitioners initially submitted a permit application in July, 1983, to fill the entire property for construction of multifamily housing units. On May 4, 1984, after discussion with a DER permitting official, Petitioners submitted a second application containing two alternative, less extensive development proposals. The first alternative involves the placement of fill over a 300' x 230' area (approximately 9722 cubic yards) extending 230 feet from the property along Roosevelt Boulevard out into the water. This alternative would entail construction of 24 family housing units, consisting of six basic structures, each four-stories high. The second alternative involves subdividing the property into six separate lots connected by a central fill road with cul-de- sac. Each lot, approximately .4 acres in size, would contain a single family house on pilings and an associated fill pad for parking. The fill pads would be connected to a approximately 300' x 30' entrance road constructed on fill material. Presumably, this second alternative would contain the same amount of total fill as required in the first. As it presently exists, the salt pond (a part of which applicant would fill) serves several significant and beneficial environmental functions. In regard to water quality, the pond stores, filters, and purifies large quantities of storm water which drain from the airport and South Roosevelt Boulevard. The filling of any portion of this pond would diminish this capacity. (Jnt. Ex. 1) Because of their relatively isolated nature, the organic detrital material that is produced from the leaf litter of fringing mangroves is broken down into a very fine and readily usable form by bacteria. As a result, when there is an occasional exchange between the salt pond and tidal waters, the exported organics are in a very desirable form for higher trophic levels in the food web such as small fish, crustaceans, filter feeders, and various larval forms of marine life. (Jnt. Ex. 1) The salt pond proper provides valuable habitat for fish and wildlife, most notable of which are avifauna. The pond has apparently become established as a healthy, self-sustaining ecosystem providing permanent and temporary food, shelter and refuge for many faunal species which play significant and necessary ecological roles both in the salt ponds and other tidal and brackish water systems. (Jnt. Ex. 1) Through the placement of fill and the displacement of present salt pond habitat, water quality and the biological resources in the immediate and surrounding areas would be expected to undergo degradation. (Jnt. Ex. 1) Through the encroachment of development in this area, which presently lacks residential development, biological integrity standards would be expected to fall below acceptable levels. The proposed fill areas would reduce wind- driven circulation in the pond so as to stress levels of oxygen, salinity, temperature and turbidity. Runoff from the proposed fill would introduce nutrients and elevate turbidity during storm events. Finally, elevated turbidity levels could be expected during the actual filling process and the various species of fish and wildlife now located over the project site would be temporarily disturbed by construction activities and permanently displaced in the long term through the loss of habitat. (Jnt. Ex. 1) There is a 40' zoning setback and another 50' easement owned by the City of Key West, which together form a 90' strip on the property adjacent to Roosevelt Boulevard. This 90-foot strip is largely upland and some transitional wetland. There is no zoning impediment to any of the development alternatives proposed by Petitioners. The property is currently zoned R2H (multifamily residential) by the City of Key West. II. DER's Action on the Application After DER received and reviewed Petitioners initial application on July 22, 1983, a completeness summary was sent on August 17, 1983, requesting additional information. DER received the additional information on March 23, 1984, after which it notified Petitioners that additional information was needed. Petitioners met with DER officials on April 20, 1984, and submitted additional information on May 4, 1984, including the two alternative proposals. DER issued the "Intent to Deny" all three of the proposed projects on July 19, 1984 (Jnt. Ex. 1). On May 16, 1984, a DER Environmental Specialist visited the site of the proposed projects and conducted a biological and water quality assessment. This assessment was later submitted, in report form, as the Permit Application Appraisal, dated June 7, 1984. This appraisal, uncontested by Petitioners, indicates that each of the three fill proposals would take place in waters of the state and result in water quality violations under Rules 17-3.051(1), 17- 3.061(2)(c), (j) and (r); 17-3.121(7), (13) and (28); Chapter 17-4, Florida Administrative Code; and Chapter 403, Florida Statutes. Water quality problems associated with the project were identified as diminished storm water treatment, reduced beneficial deterital material, stress on oxygen levels, salinity, temperature, and turbidity, and an introduction of nutrients. (Jnt. Ex. 1) Although a DER dredge and fill permitting official testified that any filling of the salt pond would be detrimental to the birds and animals which feed there on a daily basis, and that, in his view, a "substantial amount" of filling would not be allowed by DER, there are development projects (other than the three presented by Petitioners) which, in his view, may qualify for a permit under DER rules. DER has, in the past, issued permits authorizing the construction of above-ground residences over wetland properties. Under DER's permitting standards, one or more single-family residences could be built on the property if the structures were built on stilts, did not violate water quality standards, had acceptable drainage, and did not result in adverse storm water discharges. In evaluating such an application, any mitigation an applicant could provide, such as enhancing flushing in the salt ponds by the installation of a culvert to open water, would be balanced against any adverse impacts expected from the filling activity. The three alternative filling proposals submitted by Petitioners (including drawings and designs) do not, however as yet, fall within or satisfy these general perimeters of permitting acceptability.
Recommendation Based on the foregoing, it is RECOMMENDED: That Petitioners' application to fill (containing three alternative proposals) be denied for failure to prove compliance with applicable permitting standards contained in Chapter 403, Florida Statutes, and Chapters 17-3 and 17- 4, Florida Administrative Code. DONE and ORDERED this 26th day of July, 1985, in Tallahassee, Florida. R. L. CALEEN, JR. 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 26th day of July, 1985.
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
