Findings Of Fact Based upon the oral and documentary evidence adduced at the hearing, the following relevant facts are found: Since 1915, the Leisey family has owned or controlled some 710 acres adjacent to Little Cockroach Bay in Hillsborough County. Leisey Shellpit, Inc. now proposes to develop some 55 acres of that property, which has in the past been utilized for row crops, citrus, timbering and mining. The proposed development is to include an 870-boat marina, of which approximately half would be dry storage, located on a 16-acre lake adjacent to the waters of Little Cockroach Bay. The 16-acre lake was created through shell mining operations, and other lakes are to be part of the total project. Leisey proposes to widen and deepen existing mosquito ditches and existing canals or channels to provide access from the proposed marina to Cockroach Bay and the open waters of Tampa Bay. Adjacent to the marina lake, the proposed development also includes a flushing channel, a 250-seat restaurant, a 24-unit resort hotel or motel, a museum, fueling facilities with upland gas storage, an 8-boat ramp launching area, a convenience store, a boat repair facility, a dockmaster's office and 688 parking spaces. The total development further includes a 114-unit apartment complex and 23 single-family residential lots on other lakes nearby the marina lake, a stormwater and agricultural runoff system and a sewage treatment plant. Leisey proposes to widen and convert an existing mosquito ditch between the marina lake and Little Cockroach Bay to a flushing channel in order to accomplish a tidal flushing action in the marina lake. In order to provide access for boats, Leisey proposes to widen and dredge two parallel existing mosquito ditches running southwesterly from the marina lake and an existing channel running east-west along Cockroach Bay Road and extending into the Cockroach Bay channel. These access channels will be dredged to provide a 50- foot wide bottom in most areas with a minus 6 N.O.S. elevation for the bottom of the channels. In areas which do not need dredging, there exists a gentle slope of 6:1. Where excavation is to occur, there will be a 3:1 slope. The total amount of dredging contemplated is 175,000 cubic feet. The majority of the spoil material will be pumped through a polyethelene pipe to the marina lake until that lake is contoured to desired elevations. Secondary spoil sites for any surplus materials are available in lakes owned or controlled by the Leisey family. Depending upon economic and environmental considerations, Leisey intends to use a combination of dredging methods, including suction dredging, dragline dredging, and use of a cutter head dredge. In order to control turbidity, petitioner will utilize earth barricades, silt screens and double silt screens depending upon the type of dredging performed in various locations. The shellpit which is proposed to become the marina lake is not a state water at this time. It will become a state water at the time it is connected to other state waters by the proposed access channels and flushing channel. It would be classified as a Class III water body. The Cockroach Bay Channel which Leisey proposes to widen and dredge has not been dredged in the past. The applicant was unable to predict the extent to which future maintenance dredging would be required if it is widened and deepened to provide access to the proposed marina. The water body areas adjacent to the proposed marina, particularly Cockroach Bay, are presently classified by the Department of Natural Resources as approved for shellfish harvesting, and have been so classified since at least 1975. However, since December 10, 1984, the area has been temporarily closed for shellfish, oyster, clam and mussel harvesting. When a marina is constructed, it is the policy of the Department of Natural Resources to reclassify the area within the marina proper as prohibited for shellfish harvesting and to establish a buffer zone outward from the marina which also would be prohibited for the harvesting of shellfish. The size of the buffer zone is dependent upon the quality, design, hydrography and usage of the marina. The DNR considers a worst-case scenario in terms of potential biological contamination when establishing the size of the buffer zone. In the case of the potential marina, the size of the buffer zone would be hundreds, thousands of yards. It is the policy of the DER to deny a request for a variance if the proposed project would result in DNR closing an area previously approved for shellfish harvesting. Waters approved for shellfish harvesting are classified by DER as Class II waters. Aquatic preserves are designated by the State for the preservation or enhancement of the biological, aesthetic and scientific values of those areas. The boundaries of the Cockroach Bay Aquatic Preserve are described by statute in Section 258.391, Florida Statutes, and such description also defines the boundaries of the Outstanding Florida Water (OFW) classification of the DER. Due to cost considerations, the applicant did not perform a mean high water line survey to demonstrate the proper boundaries of the Cockroach Bay Aquatic Preserve and the corresponding OFW boundaries. The statutory legal description of the Aquatic Preserve was derived from a lease given to the State by the Tampa Port Authority, to which the submerged lands in Hillsborough County had previously been dedicated. That description continuously makes reference to mean high water lines in Tampa Bay and the Little Manatee River. The applicant's professional land surveyor was of the opinion that the waters easterly of the islands offshore the proposed marina, including Little Cockroach Bay, are not a part of the Aquatic Preserve, and thus are not a part of the OFW designation. It was this witness's opinion that the only portion of the project to occur within the Aquatic Preserve is approximately 600 feet of the existing Cockroach Bay Channel to be dredged as an access channel. The DER's expert witness was of the opinion that the statutory legal description does include the waters of Little Cockroach Bay. The intervenors presented testimony that, at the time the description of the Preserve was developed, the Tampa Port Authority did not consider Little Cockroach Bay as a separate water body and intended it to be part of the Cockroach Bay Aquatic Preserve. The Preserve has been managed by the DNR as including the area of Little Cockroach Bay. The proposed marina lake is designed to be four feet deep at its edges and six feet deep In the central portion. An existing mosquito ditch is to be widened to provide a source of new water from Little Cockroach Bay on the incoming tide. At the conclusion of the flood tide, a computer-controlled gate will close, forcing water to exit through the access channels during the ebb tide. A flow directing wall will be installed for the purpose of promoting adequate water exchange in all portions of the marina. Petitioner's plans for the operation of the marina include a prohibition against live-aboards and a `no-head" policy. Fueling at the upland fuel pumps will be encouraged by a price differential. The upland fuel storage tanks are to be protected by barriers and earthen berms. The water side fueling facility is to be protected by a containment boom. In the event of a fuel spill, it is contemplated that the entire marina can be sealed off from outside waters by closing the flushing gates and by closing a turbidity curtain across the access channel. It is contemplated that a dockmaster or assistant will be on-site at the marina to ensure compliance with all rules and to handle any emergencies that may arise. In order to determine the viability of a given basin for use as a marina, it is appropriate to consider the flushing time or residence time -- the time necessary for water in a given system to exchange with waters in adjacent areas outside the system. In marinas that are tidally Influenced, flushing will, in large part, be a function of the tidal forcing. Utilizing a one-dimensional computer model, and assuming that no mixing occurs when water from the flushing channel enters the basin, the applicant predicts that the flushing or residence time of the basin will be approximately 4.2 days assuming a low tide, 5.6 days assuming a mid-tide volume, and 6.6 days assuming a high tide. If one were to assume a completely mixed system, the flushing time would be 8.6 days assuming a low tide, 11.4 days assuming a mid-tide volume, and 14 days assuming a high tide. Over a period of time, the tide level in the proposed basin will actually be represented by the range between high tide and low tide. Rather than assuming a low tide condition, it would be more accurate to use a tidally averaged or mid-tide volume of water. A no-mixing assumption does not take into account dead-water zones within a water basin. In reality, a marina would have some dead zones through the existence of the obstacle effect of objects such as boat hulls. Also, in this proposed marina, the area behind the deflection wall or flow directing wall would be outside the direct flow path and, thus, "dead" water. A one-dimensional model is typically utilized to predict the flushing times of narrow rivers or canals, as it represents tidal flow in only one direction in a straight line. A more appropriate model to utilize in a circular boat marina is a two-dimensional model. The tidal flushing of water bodies whose flow patterns are non-linear are more appropriately predicted by use of a two-dimensional model. The applicant failed to produce competent substantial evidence that the anti-fouling paints used on boats, as well as oils and greases typically produced by boats, would not violate Class III water quality standards in the marina lake and the access channels. It was also not demonstrated that Class III water standards for collform bacteria would be met. These factors are particularly important due to the potential for back flow which could cause marina waters to run back through the flushing canal into Little Cockroach Bay. Also, extreme weather events can force large volumes of water with high concentrations of contaminants out into Tampa Bay. While petitioner's water quality witnesses took samples and reviewed some of the available data base for the area dating back to 1950, the ambient water quality of Cockroach Bay for the period March 1, 1978, to March 1, 1979, was not established. The Hillsborough County Environmental Protection Commission did have monitoring stations in the vicinity of this project during 1978 and 1979. Also, while the petitioner's experts did consider the effects of dredging during construction, the effects of turbidity from future boat traffic were not established. There are currently existing water quality violations with respect to dissolved oxygen in the Class II and Class III waters associated with the proposed project. The more accelerated export of detridal material, as well as the introduction of oils and greases from boats, will cause increased DO violations. The resuspension of fine materials and sediments resulting from dredging and boat traffic in the channels could further lower oxygen demands. The widening and dredging of the access channels proposed by the petitioner will result in the immediate removal of approximately 0.3 acres of seagrasses and about 3.09 acres of mangroves. Most of the seagrass impacts would occur at the western mouth of the Cockroach Bay access channel. Many of the mangroves to be removed are mature, healthy fifteen to twenty- foot trees. Secondary losses of seagrasses and mangroves can be expected from the turbulance and erosion caused by wakes and from propeller damages associated with greatly increased boat traffic in the area. Petitioner proposes to mitigate these secondary losses by providing channel markers, speed limit signs and "no wake" signs in the channel. With respect to the immediate losses, petitioner proposes to replace the 0.3 acres of seagrasses with 0.3 acres of new plantings in the proposed flushing canal. It is suggested that the marina will naturally be vegetated by seagrasses. Petitioner also offers as mitigation for the loss of seagrasses in the dredged access channels the fact that over one acre of hard substrate in the form of pilings and seawalls will be constructed at the marina. It is suggested that this acre would become colonized by sessile attached animals, such as barnacles and oysters, and by red algae, and that this assemblage would become a source of primary productivity and provide a filtering benefit similar in function to grass beds. With respect to mangrove mitigation, petitioner intends to plant six-foot high mangrove trees along the perimeter of the proposed marina lake and along portions of the access channel, and to scrape down an area near the north lake to provide suitable elevations for mangroves and higher marsh vegetation. In total, petitioner plans to replace the 3.09 acres of lost mangroves with 4.25 acres of replanted mangroves. Approximately 80% of the seagrasses in Tampa Bay have been destroyed by development. A significant fraction of the remaining seagrasses are located in the Cockroach Bay area. Seagrass mitigation is highly experimental. No successful seagrass mitigation has occurred in Tampa Bay. The success of replanting seagrasses in the proposed flushing canal is particularly suspect due to scouring, flushing velocities and the potential for poor water quality in the event of a reverse flow from the marina into the flushing channel. The increased salinity in the marina lake could adversely affect seagrasses located there. Propeller cuts are already apparent in Cockroach Bay, as boaters cross the seagrass meadows in order to reach prime fishing areas. An increased amount of boat traffic in the area could be expected to exacerbate such occurences. While mangrove replantings have achieved more success, the areas to be destroyed are mature large systems which provide a considerable detridal feeding base for the animals associated with them, as well as cover for animals, fish and invertebrates that utilize those areas. Many of the types of animals and fish that utilize mangrove areas, as well as seagrass areas, are attached organisms that do not migrate. Mangroves require a stable substrate. The remaining mangrove system in the access channels could change with increased boat traffic, especially in those areas where the slopes are to be reduced to 3:1. The DER does not yet have a promulgated rule regarding mitigation. Its present policy is to evaluate mitigation plans on a case-by-case, site- specific basis. No specific ratio between the impacted area and the mitigated area is required. Instead, it is the policy of DER to analyze various factors, such as the present condition of the area being dredged or filled in terms of the age of the vegetation and the functions being served; proximity of the area to special areas such as Class II waters or an OFW; proximity between the areas impacted and the area planned for mitigation; and past examples of success of the mitigation proposed. DER considers mitigation in relationship to the public interest review standards, and does not consider mitigation when reviewing water quality standards. It is the present policy of the DER to either avoid adverse impacts to healthy seagrasses or to require a lot of" mitigation for those areas which will be lost if the project proceeds. This policy is due to the lack of demonstrated success in replanting or recreating new seagrass communities. While the planting and growing of mangroves has been more successful, it is the policy of the DER to recognize that there is a time lag between the planting and successful growing. When a large, healthy mangrove system is being destroyed and replaced by younger, smaller trees, DER generally requires more than a one- to-one ratio in mitigation. It is the policy of DER to consider the creation of a barnacle habitat as mitigation only when the dredging or filling project itself impacts that type of habitat. Petitioner conducted studies which led to the conclusion that the construction and operation of the proposed project would not reduce the biological integrity or diversity by more than 25 percent. However, given the removal of seagrass meadows and the adverse effects from greatly increased numbers of boats in the area, the applicant did not provide reasonable assurances that the biointegrity standards could be met. Manatees have been sited in Cockroach Bay and the Cockroach Bay boat channel. Due to its seagrasses and shallow waters, Cockroach Bay is one of the most important nursery areas for fish in Tampa Bay. Many wildlife species of special concern have been sited at or near the project site. These include the mangrove terrapin, the mangrove coocou, the brown pelican, the American alligator, the little blue heron, the snowy egret and the tri-colored heron. It is the policy of the DER, when considering the impact of a project upon fish and wildlife, to utilize all federal and state lists of endangered and threatened species. It is highly likely that increased boat traffic and human activity in the area will affect such wildlife. Several locations along the proposed north/south and east/west access channels could pose serious navigational difficulties due to restricted visibility. Given the potential number and sizes of boats in the access channels, manuevering problems can be expected, particularly during weekends. A boater must make a right angle turn where the north/south channel meets the east/west channel. A boat of 25 to 35 feet in length would have difficulty making such a turn in a fifty foot channel at speeds which would not produce a wake. If the vessel suffered engine failure or encountered other traffic at this turn, a hazardous navigational situation could arise. It would take a vessel approximately 20 to 30 minutes to travel at a safe speed from the marina to the mouth of the channel. It is common to observe boaters impatient to get into open waters or return home at the end of the day and navigating at speeds beyond that which is posted or in excess of that which is prudent or safe. Although not part of the application for variance or the instant permit application, petitioner offered evidence of its proposed stormwater management plan, sewage treatment plan, and agricultural runoff treatment plan. These plans are still conceptual in nature and would be the subject of future permitting requirements. Petitioner projects that these implemented plans will actually improve the water quality in the area of the project site. A porous concrete product is to be utilized for parking spaces and throughout the development except immediately adjacent to the marina. This product allows stormwater to pass through it and go into the groundwater, and it is designed to retain and break down oils and greases. Reversed sloping around the marina lake and access channels are to be used to prevent any direct discharge of stormwater. Flow is to be directed away from the marina through grasssed swales into retention ponds and into other isolated lakes. An advanced wastewater treatment plant, with a hyacinth treatment lake, is planned to provide sewage treatment for both this development and the surrounding communities, with an ultimate capacity of 250,000 gallons per day. The treated effluent, after going through the treatment lake will be directed into a rapid exfiltration trench to sheet flow into the mangroves. Petitioner also plans to redirect existing agricultural runoff, identified as being a present source of pollution to water in the area, so that it would go into several lakes and ultimately exit through rapid exfiltration trench sheet flow into the mangroves. In 1983, one of the greatest paleontological finds in this country occurred in one of the mine pits on the Leisey property. Over two hundred and fifty thousand specimens were obtained. Petitioner has entered into an agreement with the Florida State Museum whereby a museum will be constructed near the proposed marina, and displays from the paleontological discovery and other archeological exhibits from the Leisey property will be shown in an educational format. Petitioner has offered to dedicate the museum to the State. Should petitioner receive all permits required for construction of its proposed marina development, the Leisey family has offered to dedicate approximately 54 acres of mangrove lands near Little Cockroach Bay to the Tampa Port Authority or other appropriate entity for preservation purposes. There does appear to be a shortage of available marina spaces in Tampa Bay. However, there is a pending application before DER for an expansion of an existing marina in the vicinity, and other sites along the Bay would be of lesser conflict with existing seagrasses and mangrove systems. If petitioner's marina facility were constructed and operated as proposed, it would serve as a port of refuge to boaters during storms. Petitioner also proposes to reserve two of the eight boat ramp spaces for public safety and environmental agency personnel so that boats can be quickly launched and retrieved in emergency situations. The provision of an eight- space boat ramp and the 432 wet slips and 438-boat dry storage will increase public access to the off-shore waters. The proximity of the Tampa Ship Channel results in direct access to the Gulf of Mexico, and recreational activity will be enhanced by the project. In this proceeding, the burden to demonstrate that the proposed marina project complies with all applicable statutes, rules and policies of the DER and to provide reasonable assurances that the State's water quality standards will not be violated rests with the applicant, Leisey Shellpit, Inc. Due to the location of the proposed project, that burden is heavy and somewhat complicated. Surface waters in Florida are classified according to their present and future most beneficial uses, and water quality criteria have been developed to maintain the minimum conditions necessary to assure the suitability of the water for the designated uses. Section 403.061(10), Florida Statutes, and Rule 17-3.081, Florida Administrative Code. In addition, certain waters, due to their exceptional recreational or ecological significance, have been designated as Outstanding Florida Waters (OFW), with the intent that they be afforded the highest degree of protection. Section 403.061(27), Florida Statutes. A designation of a water body as an OFW is a determination that the environmental, social and economic benefits of the special protection outweigh the environmental, social and economic costs. Rule 17-3.041(:2)(f), Florida Administrative Code. The waters within and adjacent to the proposed project in this proceeding include OFW entitled to the highest protection, Class II waters with the designated use of "shellfish propagation or harvesting," and Class III waters with the designated use of "recreation, propagation and maintenance of a healthy, well-balanced population of fish and wildlife." Rule 17-3.081, Florida Administrative Code. As such, this project is subject to numerous statutory and regulatory requirements. The waters adjacent to the proposed marina, access channels and flushing channels are Class II waters. As such, Rule 17-4.28(8), Florida Administrative Code, governs requests to dredge and fill in those areas. That rule provides as follows: "(8)(a) The department recognizes the special value and importance of Class II waters to Florida's economy as existing or potential sites of commercial and recreational shellfish harvesting and as a nursery area for fish and shellfish. Therefore, it shall be the department's policy to deny applications for permits or certifications for dredging or filling activities in Class II waters, except where the applicant has submitted a plan of procedure which will adequately protect the project area and areas in the vicinity of the project from significant damage. The department shall not issue a permit for dredging or filling directly in areas approved for shellfish harvesting by the Department of Natural Resources. Provided, however, that the staff of the department may issue permits or certifications for maintenance dredging of existing navigational channels, for the construction of coastal protection structures and for the installation of transmission and distribution lines for carrying potable water, electricity or communication cables in rights-of-way previously used for such lines. (b) The department shall also deny applications for permits or certifications for dredging and/or filling activities in any class of waters where the proximity of such activities to Class II waters would be expected to have an impact on the Class II waters, and where reasonable assurance has not been provided that the activities will not result in violations of the applicable provisions of Chapter 17-3, Florida Administrative Code, in the Class II waters. Petitioner does not dispute that the waters are Class II waters. In spite of the fact that a variance from the rule was requested, petitioner contends that the prohibition against dredging in areas "approved for shellfish harvesting by the Department of Natural Resources" is not applicable here because the area is now temporarily closed to shellfish harvesting. In the alternative, petitioner contends that even if these waters are "approved" for shellfish harvesting, it is entitled to a permit to "maintenance dredge an existing navigational channel." This latter contention is without merit. There was no evidence that the access channels proposed to be widened and deepened had been previously dredged. Indeed, the evidence was to the contrary. Consequently, the proposed activity cannot be categorized as "maintenance dredging." Moreover, neither the proposed north/south access channel nor the proposed flushing channel are "existing navigational channels." Petitioner's argument with regard to a distinction between an area "approved" and an area "temporarily closed" to shellfish harvesting is initially logically appealing. However, the argument fails to recognize the purpose of the Class II designated use -- shellfish propagation or harvesting, as well as the DER policy to deny a request for a variance when a project would result in the permanent loss of an area for shellfish harvesting. It was undisputed that DNR establishes buffer zones around marinas within which shellfish harvesting is prohibited, and that the size of the buffer zone is dependent, in part, upon the size of the marina. The area "buffered" would be permanently, as opposed to temporarily, closed for shellfish harvesting. The DER's policy to deny permits or variance requests when the project would result in the permanent closure of a significant area for shellfish harvesting is supported by the remainder of Rule 17-4.28(8)(a), as well as by the purpose for the Class II designation. Thus, under the facts of this case, it is concluded that the prohibition against dredging and filling in areas "approved for shellfish harvesting by the Department of Natural Resources," as set forth In Rule 17- 4.28(8)(a), is applicable and that petitioner has failed to demonstrate entitlement to a variance from that prohibition. Even if petitioner were entitled to a variance, it has not provided reasonable assurances that the short and long term effects of the proposed activities will not violate water quality standards and public interest requirements so as to be entitled to a dredge and fill permit. As noted above, Outstanding Florida Waters are entitled to the highest degree of protection. An applicant for a permit to conduct activities which significantly degrade or are within such waters is required to affirmatively demonstrate that the activity meets the criteria set forth In Rule 17-4.242, Florida Administrative Code. Among those criteria are that the activities be "clearly in the public interest and that the "existing ambient water quality," within the OFW not be lowered as a result of the proposed activity. "Existing ambient water quality" is defined in Rule 17-4.242(1)(d) as the water quality which could reasonably be expected (based upon the best scientific information available) to have existed for the year prior to the OFW designation. The Cockroach Bay Aquatic Preserve was designated as an OFW on March 1, 1979. Rule 17-3.041, Florida Administrative Code. Therefore, the appropriate year for determining the "existing ambient water quality" of that OFW is from March 1, 1978, through March 1, 1979. Petitioner admits that at least 600 feet of the proposed east/west access channel is within the Cockroach Bay Aquatic Preserve. Since a mean high water survey was not conducted by the petitioner, or otherwise presented in this proceeding, the undersigned is unable to render a conclusion regarding the precise boundaries of the Aquatic Preserve or the coextensive OFW designation. It is persuasive that the DNR has managed the Preserve as though Little Cockroach Bay were included within it and that the Tampa Port Authority, from whom the lease to the State was derived, has not recognized Little Cockroach Bay as a separate water body. In any event, at least a portion of the proposed activity will be conducted within an OPW, and petitioner has failed to establish the ambient water quality of those waters for the relevant time period. As a result, petitioner has failed to meet its burden of affirmatively demonstrating that the proposed activity will not lower the quality of that water. While the petitioner did present evidence regarding the current condition of the waters and some historical data was reviewed, there was no affirmative demonstration of the quality of water which existed between March 1, 1978, and March 1, 1979. It simply was not established that petitioner relied upon the best scientific evidence available in its attempt to demonstrate that "existing ambient water quality" would not be lowered by the proposed activity. The operation of an 870-slip marina, along the public boat ramps, will generate a large amount of pollutants. Constant and heavy boat traffic within the marina lake and going in and cut of the area on a daily basis can be expected to continuously resuspend contaminants and pollutants. Given these factors, it was particularly incumbent upon the petitioner to make accurate predictions regarding flushing times, and to provide reasonable assurances that water quality standards would not be violated as a result of the proposed activity. The use of a one-dimensional model, along with the assumptions of no mixing and low tide conditions within the basin, does not provide adequate or accurate predictions with respect to the flushing or residence time of the proposed marina lake. The use of these flushing model computations to make water quality predictions for the lake and channels undermines those predictions. The applicant has failed to provide reasonable assurances that water quality standards, particularly with regard to dissolved oxygen, for Class II and III waters will not be violated on a short and long term basis. Without such assurances, and also considering the loss of healthy seagrasses and mangroves which will result from both dredging and continued boat traffic in the area, the proposed project Is not permittable. As stated In Rule 17- 3.011(5), Florida Administrative Code: Pollution which causes or contributes to new violations of water quality standards or to continuation of existing violations is harmful to the waters of this State and shall not be allowed. When an applicant is unable to meet water quality standards because the existing water quality does not meet standards, mitigation measures which cause net Improvement of the water quality may be considered. Section 403.918(2)(b), Florida Statutes. In mitigation, the petitioner has offered its plans for stormwater management, agricultural run-off and sewage treatment to demonstrate that water quality conditions will be improved by the overall development contemplated. Without a reasonably accurate prediction of the extent to which the proposed project and related activities will cause or contribute to existing DO violations, as well as other violations, in the subject waters, It is impossible to determine whether these mitigation measures will cause a net Improvement of the water quality in the area. In addition, the plans for the proposed stormwater management, agricultural runoff and sewage treatment systems were conceptual in nature. Until more detailed plans are developed, it is impossible to determine whether future permit applications for those projects would be acceptable. The petitioner's mitigation plans for the removal of seagrasses and mangroves is likewise unacceptable. Attempts to replant seagrasses, especially in Tampa Bay, have not been successful and are in an experimental stage. Petitioner's proposed 1:1 mitigation ratio is not appropriate for seagrasses due to the possible failure of its attempts, the proposed location of the replantings, and the expectation of secondary losses from boat traffic, erosion and potential future maintenance dredging. While the replanting of mangroves have a past record of success, a larger than 1:1 ratio would be appropriate to account for the difference in functions between a healthy system of large trees and the replanting of smaller trees, to account for the secondary losses which may be expected from greatly increased boat traffic and to account for the difference in locations between the trees to be removed and the trees to be replanted. An applicant must also provide reasonable assurances that the proposed project is "not contrary to the public Interest" or, in the case of the presence of Outstanding Florida Waters, that the project will be "clearly in the public interest." In making public interest determinations, the Legislature has set forth seven criteria to be considered and balanced, and has allowed applicants to offer measures to mitigate adverse effects. Section 403.918(2), Florida Statutes. The seven factors are: Whether the project will adversely affect the public health, safety, or welfare or the property of others; Whether the project will adversely affect the conservation of fish and wildlife, including endangered or threatened species, or their habitats; Whether the project will adversely affect navigation or the flow of water or cause harmful erosion or shoaling; Whether the project will adversely affect the fishing or recreational values or marine productivity in the vicinity of the project; Whether the project will be of a temporary or permanent nature; Whether the project will adversely affect or will enhance significant historical and archaeological resources under the provisions of 5.267.061; and The current condition and relative value of functions being performed by areas affected by the proposed activity. In order to demonstrate that its Mangrove Bay Marina proposal is not contrary to and is clearly in the public interest, petitioner offers its mitigation plans previously discussed with regard to seagrasses, mangroves, stormwater, agricultural runoff and sewage treatment. It is contended that these features of the total project, along with the provision of a secure and well-policed facility, will have a beneficial effect upon public health, safety and welfare and will conserve fish and wildlife and their habitat. It is also urged that its well- marked and maintained channels will Improve navigation and not contribute to harmful shoaling or erosion and will provide for an adequate flow of water. Safe mooring, boat storage and public boat ramps will enhance fishing and recreational values, and marine productivity will not be adversely affected, according to the applicant. Finally, the petitioner offers its museum with educational programs to demonstrate enhancement to significant historical and archaeological resources. There can be no doubt that the applicant has attempted to develop a proposal which will satisfy environmental, as well as social, concerns. It is also true that the marina project would satisfy the need for additional boat slips In the Tampa Bay area. The prime problem is the location of the proposed project. The Cockroach Bay and Little Cockroach Bay areas are relatively undisturbed by development. The area is Important as a research area and as a nursery area for juvenile fish and shellfish. The designation of waters adjacent to and within the proposed project site as Outstanding Florida Waters and Class II waters establishes their importance and govern the manner in which activities therein are to be evaluated. The applicant has failed to provide reasonable assurances that the project complies with water quality criteria and public Interest considerations applicable to these wetlands. The long and short term adverse environmental impacts upon water quality, seagrasses and mangroves are sufficient to justify a denial of the permit application. Those considerations, coupled with the disruption of wildlife habitat, the hazardous design of the marina channels, the destruction of a highly productive aquatic system without appropriate mitigation, and the potential of harming manatees, far outweigh any positive benefits of the project. The paleontology museum, while serving a laudable educational function, will not serve as mitigation for any estuarine loss and the historical and archaeological resources to be considered under Section 403.918(2)(a)6, Florida Statutes, refer to historic properties representing more than 10,000 years of human presence. In short, while the project may provide some advantages with regard to recreation and public safety, its adverse effects upon fish, wildlife, harmful erosion and shoaling, marine productivity and the present condition and value of the functions being performed in the area are contrary to the public interest. Petitioner has failed to demonstrate any overriding public interest that would outweigh these considerations. As a final matter, it was stipulated that Manasota-88, Inc., the Florida Audubon Society, Eagle Audubon Society and Tampa Audubon Society had standing to participate as intervenors in this proceeding. Petitioner's motion in opposition to the intervention status of the Tampa Bay Regional Planning Council was initially denied, subject to that organization presenting proof of its standing at the hearing. The Council failed to produce such proof, and its petition to intervene is accordingly denied.
Recommendation Based upon the findings of fact and conclusions of law recited herein, it is RECOMMENDED that the requests of Leisey Shellpit, Inc. for a variance and a permit and certification to construct and operate the Mangrove Bay Marina and attendant access and flushing channels be DENIED. Respectfully submitted and entered this 11th day of May, 1987, in Tallahassee, Florida. DIANE D. TREMOR 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 11th day of May, 1987. APPENDIX TO RECOMMENDED ORDER, CASE NO. 86-0568, 86-0569 The proposed findings of fact submitted by the parties have been carefully considered and have been accepted and/or incorporated in this Recommended Order, except as noted below: Petitioner Leisey: 6, last two sentences Rejected; not supported by competent, substantial evidence. 7, last two sentences Rejected; not supported by competent, substantial evidence. 8, last sentence Rejected; contrary to the greater weight of the evidence. 9, last sentence Rejected; the evidence. demonstrates that the words "temporarily closed" should be substituted for "not approved." 11, last sentence Rejected; contrary to the greater weight of the evidence. 14, last sentence Rejected; not supported by competent, substantial evidence. 18, last sentence Rejected; not supported by the greater weight of the evidence. 19, last two sentences Rejected; contrary to the greater weight of the evidence. 20, last sentence Rejected; not supported by competent, substantial evidence. 21, last three sentences Rejected; not supported by competent, substantial evidence as to "existing ambient water quality. 23, last three sentences Rejected; not established by competent, substantial evidence. 24, last sentence Rejected; not established by competent, substantial evidence. 25, last sentence Rejected; contrary to the greater weight of the evidence. 28, last sentence Rejected; not established by competent, substantial evidence. 30 - 33 Accepted, with a recognition that the plans are conceptual in nature, and not detailed as required for permitting purposes. 35, last sentence Rejected; not established by competent, substantial evidence. 43, third sentence Rejected; not established by competent, substantial evidence. Respondent, DER: 2 Rejected; irrelevant and immaterial. 16, first sentence Rejected as to the words "will occur," as opposed to "could occur." 70 Rejected; insufficient evidence was adduced to render a finding regarding the precise OFW boundaries. 76 Rejected; irrelevant and immaterial. 85 Rejected as to the specifics of the permitability of other sites, as not established by competent, substantial evidence. 94, last sentence Rejected as speculative. 96 Rejected; not supported by competent, substantial evidence. 99 Rejected, irrelevant and immaterial. 102 Rejected, as speculative. 113 Rejected, not supported by competent, substantial evidence. Intervenor Manasota-88: This party's post-hearing submittal contains mixed proposed findings of fact and conclusions of law. The proposed factual findings are generally accepted and have been addressed in the Recommended Order. COPIES FURNISHED: Robert A. Routa, Esquire Robert, Egan & Routa, P.A. Post Office Box 1386 Tallahassee, Florida 32302 C. Anthony Cleveland, Esquire Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, FL 32399-2400 Thomas W. Reese, Esquire 123 Eighth Street North St. Petersburg, Florida 33701 Robert S. Tucker, Esquire Linda M. Hallas, Esquire 9455 Koger Blvd., Suite 209 St. Petersburg, Florida 33702 M. Charles Lee Senior Vice President Florida Audubon Society 1101 Audubon Way Maitland, Florida 32751 Dale Twachtmann, Secretary Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32399-2400 Daniel H. Thompson, Esquire General Counsel Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32399-2400
The Issue The issue for consideration in these cases is whether the Southwest Florida Management District should issue to Charles Bass Water Use Permit 207025.04, which would authorize groundwater withdrawals from three wells for crop irrigation on a farm located in Hardee County, Florida.
Findings Of Fact At all times pertinent to the issues herein, the Respondent, Southwest Florida Water Management District, was the state agency responsible for the management of water resources within the geographical area of 16 Florida counties which includes Hardee County, in which both properties in issue are located. The District’s authority to issue consumptive use permits for groundwater is found in Chapter 373, Florida Statutes. Petitioner, Quail Creek Farms, Inc., is a family-owned Florida corporation which incorporates approximately 2,350 acres in Hardee County, Florida. The property is used as a hunting preserve and for cattle and citrus farming. Quail Creek Farms, Inc., is located contiguous to and directly south of Respondent Bass’ property, consisting of approximately 1,380 acres, also in Hardee County. The Bass property is actually owned by Golden County Farms, Inc., in which Bass is a principal, and which directly and through tenant farming operates a vegetable farming operation thereon. Historically, Bass has grown agricultural crops, including tomatoes, on the property at least since the 1940s. Though approximately 745 acres of the property were available for crop cultivation prior to 1984, and remain available for production, it appears that prior to 1991, not all available land was in use at any one time. Farmed in a checkerboard approach, normally between 150 and 200 acres were under cultivation at any one time, with a maximum acreage in production of 240 acres. However, since 1991, annual acreage in production has increased to a present level in excess of 700 acres. Over the years, an amicable and friendly relationship between the Bass and Ward (Quail Creek) families has developed. Both properties are located in a rural area which also supports numerous similar farming operations within 10 to 20 miles of the properties. Use of the Bass property for crop farming, including tomatoes, is reasonable and consistent with land use practices in the area. Over the years, Bass has used, and continues to use, a semi-closed, seepage irrigation system to irrigate the row crops grown on the property. A semi-closed, seepage irrigation system is one which manages the water table beneath the crop root zone through a series of furrows down which water is provided periodically and as necessary to ensure the crop has sufficient moisture for its growing needs. The water is pumped by well from below ground and is thereafter channeled by pipe to the farm field for use. The water is released by spigot or valve into furrows between the raised crop rows from which it seeps into the ground to raise the water table to just below the root zone of the growing plants. The plants obtain the water from this level by capillary action. Only sufficient water to raise the water table to the proper level is released into the furrows, and to ensure against run-off, the field is surrounded by collector swales and perimeter ditches to catch and retain any excess water which might reach the farthest end of the row without seeping into the ground. A semi-closed, seepage irrigation system, as is in existence on the Bass property, should result in only a minimal run-off if the system is properly maintained and operated. Irrigation systems are not designed to be the primary source of water for crops, but are designed to provide sufficient supplemental water, above and beyond natural rainfall, to satisfy the crop water need in a two-in-ten rainfall system (the driest two years out of ten). The greater the rainfall, the less irrigation water is needed, and it is the responsibility of the farmer to turn on and shut off the water to the furrows so as to provide only the water needed by the crop. It is not to the farmer’s advantage to provide more water than is needed, for several reasons. The pumping of water is expensive due to the high cost of a power source for the pump. Also, too much water raises the water table to a level where the roots of the plant are either too shallow to support the plant in times of less rainfall, or the roots drown in the overabundance of water. The use of pumped groundwater for crop irrigation is reasonable and consistent with farming practices in the local area. Semi-closed, seepage irrigation of row crops is a common practice among row crop farmers in the area of the Bass property. The system utilized by Bass is typical of this type of system and its use is consistent with irrigation practices in the area. Mr. Bass pumps his water from three wells on the property. The permit applies to the total amount of water taken by the three existing wells. One well is an 8-inch diameter well constructed to a depth of 800 feet and cased to a depth of 400 feet. The second well is a 12-inch diameter well which is drilled to a depth of 985 feet and cased to a depth of 195 feet. The third well is a 16-inch diameter well which is drilled to a total depth of 1,500 feet and cased down to 400 feet. Whereas wells one and three draw only from the Floridan Aquifer, well two draws from both the Floridan (lower) and intermediate aquifer. Bass has had a water consumptive use permit issued by the District since 1983 based on which he has pumped water for crop irrigation. The original permit, 207025.00, issued in April 1983, authorized withdrawal from one well at an annual average rate of 253,000 gallons per day (GPD) and a maximum daily rate of 760,000 GPD. When the permit was renewed in February 1991 (207025.01), withdrawal was authorized from four wells for a combined annual average rate of 1,280,000 GPD and a combined peak monthly rate of 6,000,000 GPD. The permit was modified by letter (207025.02) to change the location of one well without changing any of the permitted quantities. In August 1994, the current permit (207250.03) authorized withdrawal from only three wells with a combined annual average of 2,950,000 GPD and a combined peak monthly rate of 7,740,000 GPD. The current permit authorizes withdrawal of water for 745 acres for each of a spring and fall tomato crop, utilizing the semi-closed seepage irrigation system for both. In 1991, Bass significantly increased the number of acres under cultivation. A District visit to the property in December 1991, revealed grading and construction activities under way. Acreage under cultivation had increased to approximately 700 acres in tomatoes planted in raised rows under plastic. Disking and ditching had taken place in and around 4.56 acres of wetlands, and a new surface water management system had been constructed on approximately 25 acres of previously uncultivated land. Water was observed being discharged from the ditches on the Bass property onto Quail Creek land, which resulted in a flooding of portions of Quail Creek, the clogging of canals, and the death of several wooded areas presumably due to excess water. In February 1992, the District issued a Compliance Notice to Bass advising him that the land readjustment activities under way constituted construction of an unpermitted surface water management system and was a violation of statute and departmental rule. On March 23, 1992, Bass questioned the District’s determination that a permit was required, but three days later, on March 26, 1992, the District issued a Notice of Violation. Adverse impacts continued to occur to Quail Creek property, allegedly due to Bass’s activities. Finally, in September 1992, Bass applied for a general construction permit from the District for a surface water management system. As a part of this system for which a permit was sought, Bass’s engineers addressed the historical farming pattern on the property and attempted to resolve several problems by incorporating into the design certain features which were supposed to slow down the runoff from the Bass farm fields. On June 29, 1993, the District and Bass entered into a Consent Order which found that 745 acres of farm fields and related surface water facilities had existed prior to October 1, 1984, and, therefore, did not require a surface water management permit for their continued use. Quail Creek was not a party to this Consent Order. In addition, however, the District found that 25 acres of farm fields and related facilities had been created after October 1, 1984, and those acres required a surface water management permit for their continued use. Bass applied for and obtained the required permit (40105.05.00) from the District on April 23, 1993. Bass was also required to pay a monetary penalty to the District. On May 24, 1994, the District transferred the surface water management permit to a permanent operation status. Bass’s WUP permit 207025.03 was due to expire on February 14, 1997, and he filed an application (207250.04) to renew it on February 13, 1997. In his application, Bass requested authority to withdraw water from his existing three wells at a combined annual average rate of 4,783,500 GPD and a combined peak monthly rate of 8,030,300 GPD for the existing semi-closed seepage irrigation of two 745-acre tomato crops, one each in the spring and the fall. The 745 acres to be used for these two crops have been determined to either not require a surface water management permit under the Consent Order or be covered under the existing surface water management permit 40105.05.00. After Bass’s application for renewal was received by the District in February 1997, as a part of the processing it was referred to a professional geologist, Mr. Balser, who, in March 1997, requested additional information. Balser’s request included a reference to a "required" Environmental Resource Permit Agricultural Rule Exemption. The use of the term "required" in reference to that element was in error as it is not required but only recommended. Nonetheless, Bass applied for the exemption on September 15, 1997. Action on the renewal application had been delayed until after the application for the exemption was filed, and the District granted the exemption on October 16, 1998. Processing of the renewal application then continued until Bass withdrew his request for the exemption on February 23, 1999. In the course of evaluation of Bass’s renewal application, the District utilized its Agricultural Water Use Calculation Model to review the reasonableness of the requested quantities, and a groundwater flow model identified as "MODFLOW" to evaluate the impacts of the proposed withdrawals under the permit. Use of this model indicated that the quantities of water requested by Bass were reasonable and needed for his proposed agricultural operation. However, there also was some possibility shown that the withdrawals might adversely impact some off-site wells. As a result, Mr. Balser suggested to Bass that the quantities of water sought under the permit be reduced. Consistent with that request, on December 9, 1997, Bass amended his renewal application so as to reduce the acreage allotment for both the spring and fall crops from 745 acres to 600 acres each planting. This resulted in a reduction in the annual average withdrawal rate by 1,053,800 GPD, and in the peak monthly rate by 1,563,000 GPD. With the receipt of this amendment in quantities requested, the District declared the application complete. Utilizing the models described, Mr. Balser determined that the amount of supplemental water requested by Bass was reasonable and consistent with the District’s permitting criteria. These findings were approved by the reviewing authority. On January 2, 1998, the District indicated its intention to issue a ten-year renewal permit to Bass authorizing withdrawals at a combined annual average rate of 3,729,700 GPD, and a combined peak monthly rate of 6,467,300 GPD for irrigation of both a spring and fall tomato crop of 600 acres each on the Bass property. Incorporated in the permit were the standard permit conditions provided for by Rule 40D-2.381(3), Florida Administrative Code, and seven special conditions tailored specifically for this permit. This proposed agency action was modified by the District on March 9, 1999, when it moved back the deadline for the Tailwater Feasibility Report called for in Special Condition 6 from May 1, 1998 to December 1, 1999, and added two other special conditions. With the exception of those modifications, the January 2, 1998, proposed agency action has not been changed. The changes in the withdrawal gallons stipulated in the permit include an increase of 779,700 GPD in the annual average rate currently permitted, but a decrease of 1,272,700 GPD in the peak monthly rate. The notice of proposed agency action was sent by certified mail to Petitioner on January 2, 1998, and received on January 5, 1998. Quail Creek filed its petition for administrative hearing with the District on January 21, 1998, sixteen days after receipt of the notice of proposed agency action. There is little doubt that Petitioner has suffered an increase in surface water problems on its property since late 1991, when Bass first increased the number of acres he had in row crop production. Petitioner claims that by that time approximately 700 acres of tomatoes were planted under plastic, and that disking and ditching had occurred around and in a 4.56- acre wetlands parcel on the Bass property. Petitioner’s investigation indicated that a new surface water management system had been constructed on 25 acres of previously unfarmed land and that water was being discharged from the Bass ditches on to Quail Creek Farms which resulted in an alteration of the area hydrology. In January 1992, Quail Creek’s president, Mr. Ward, observed extensive amounts of water flowing into Quail Creek’s canal systems as a result of super saturation of the Bass cropland. Mr. Ward is convinced this was due to increased water from irrigation which was applied to land already saturated by unusually heavy rains experienced in the area at that time. In early February 1992, following a 1.2-inch rainfall, Mr. Ward, accompanied by his foreman, Mr. Drake, toured the Quail Creek property abutting the Bass farm and noticed that the water in the Quail Roost canal system rose by two to three feet after the rain. Mr. Ward is convinced the rise in water level is a direct result of irrigation being applied to land already saturated by the rain. In March 1992, District officials viewed the property in issue and determined that surface water management construction was being undertaken by Bass, and as a result of subsequent negotiations, the technicalities regarding the permitting of this system were worked out to the satisfaction of the District. The outflow of surface water from the Bass farm onto Quail Creek did not abate however. In April 1992, measures were undertaken which were designed to curb the continued flooding by adding additional dirt to the Quail Creek dike. This did not correct the problem, however. In June 1993, photographs of the area in question revealed that large amounts of soil had been washed off the Bass property into the Quail Creek ditch near the lone 60-inch culvert at the junction with the north canal. Quail Creek also increased the size of its culverts in an effort to provide some relief from the flooding. By the end of summer in 1995, Quail Creek management again found it necessary to add more dirt to the top of its dikes in an effort to stem the water flow from the Bass property, and to dredge again the canal in an effort to stem the flow of water coming from the Bass property. As late as February 1997, it continued to dig from its canals dirt which it contends had been placed there by the flood waters coming from Bass’s property. It also added a 66-inch culvert to that already installed in an effort to control the water flow. During the period in issue, several noticeable factors have taken place on the Quail Creek property just south of its property line with Bass which may be attributed to excessive water influx. Included among these are the death of oak trees, the death of grass areas and areas of other vegetation, and the clogging of Quail Creek’s drainage system. Rule 40D-2.301, Florida Administrative Code, is the rule applied by the District in its determination of permit entitlement. This rule requires an applicant for a permit to demonstrate that the proposed water use is beneficial, is in the public interest, and will not interfere with any existing legal use of water. The applicant can demonstrate these requirements by providing the reasonable assurances outlined in subsections (a) through (n) of the cited rule section. To be sure, while the major emphasis of water use permitting relates to the effect of the withdrawal on quality and availability of water remaining for the use and enjoyment of others, consideration is also given in the Basis of Review (BOR) to the impacts of withdrawals and discharges on the surface water management system design in terms of percolation rates, storage volumes, design changes, and the like. The standards and criteria listed in the BOR are to be used to provide the reasonable assurances required by the rule. The "reasonable demand" criterion requires a showing that agricultural irrigation is necessary in an amount certain. This information is normally provided using the AGMOD, a computer program based on the Blaney-Criddle methodology, which is used to determine supplemental irrigation requirements for a particular crop, using specific soil type, rainfall, and other variables for a 2 in 10 year drought event. The quantity of supplemental irrigation needed, as estimated by AGMOD, is generally the minimum amount of water needed under drought conditions for optimal crop production, and it does not include any allowance for waste or runoff. This model, AGMOD, has been proven reliable in the field, and provides to the District a consistent approach for use in evaluating WUP requests. In the instant case, the evidence indicates the AGMOD simulation utilized was properly set up and run. Under the circumstances of this case, it is found that Bass has demonstrated, by a preponderance of the evidence, that his proposed water request will satisfy a reasonable demand, and the use of the water for crop cultivation is a reasonable use for the water. By the same token, the use and proposed method of irrigation are reasonable for the area, and the quantities estimated by AGMOD reflect the supplemental irrigation requirements of the specific crop Bass proposes to cultivate on the acreage allowed. Notwithstanding Petitioner’s contention that Bass has not shown a need for additional water and should be limited to that amount of water at the rate in his current permit, no convincing evidence to support this contention was introduced. To the contrary, it would appear that if Bass were limited to irrigation at the current rate of withdrawal, and should a 2-in-10-year drought occur, he would be able to irrigate only approximately 475 of his 600 acres. Assuming proper operation and maintenance of the system, the water from irrigation should not contribute to flooding of Quail Creek property. An applicant is also required to provide reasonable assurances that the proposed use will not cause quantity or quality changes which adversely impact water resources, including both ground and surface waters. This criteria addressed changes caused by withdrawal of water from the ground or a surface body of water and do not envision changes resulting from the subsequent use of the water, such as runoff. In other words, the question is whether Bass’s use of the water will result in a diminishment of Petitioner’s water assets. To determine this, water managers utilize MODFLOW, a groundwater flow computer model which identifies draw-down impacts caused by the proposed peak monthly withdrawal rate during a 90-day period with no effective rainfall. This computer model, developed by the United States Geological Survey, is widely accepted as a predictive tool by experts in the hydrology and hydrogeology communities, including the District. Petitioner has asserted that runoff of irrigation water from the Bass property, caused by unnecessary irrigation of property heavily covered by impenetrable plastic mulch, which is already saturated by rainfall, will cause the adverse changes to both the quality and quantity of water available to it which the rule envisions. This is, however, an interpretation of the rule which is contrary to the District’s historic interpretation and is not supported by the preponderance of the evidence. In any case, Petitioner has failed to present evidence to establish that the standing and run-off water shown in the photographs placed in evidence, and which allegedly had an adverse impact on surface water management on Quail Creek Farms, was the result of irrigation rather than the excessive rainfall experienced in the area at the time. To the contrary, the testimony of Mark Roberts, the former ranch hand, raised a serious question regarding the source of the runoff. Mr. Roberts recalls that in 1992 and 1993, when the alleged flooding of Petitioner’s property took place, the source of the flood waters was Petitioner’s property rather than that of Bass. The evidence of record indicates that the water use proposed for use under the permit application will not cause changes in either the quality or quantity of the water resources available. Results of the MODFLOW analysis done by the District in this case indicates that the draw-down of the water table at the parameters explored will be less than one foot, and an impact of this minimal magnitude is too small to cause an adverse change in either the quantity or quality of the water resource within the measurement parameters. Another factor for consideration in the evaluation of a permit application is the requirement that the applicant provide reasonable assurances that the proposed use will not cause adverse environmental impacts to wetlands, lakes, streams, estuaries, fish and wildlife, or other natural resources. It must be noted here that the impacts referenced in the rule in this regard are impacts resulting from the withdrawal, and not such other factors as runoff. In the evaluation of withdrawal results, MODFLOW is the tool most often used. Again, use of MODFLOW indicates that the anticipated draw-down occasioned by the anticipated withdrawals will be less than one foot. This impact is considered minimal and not likely to cause any adverse impact to the protected areas cited. Still another factor for consideration in permit application evaluation is the requirement that the applicant give reasonable assurances that the proposed use will not cause water levels or rates-of-flow to deviate from the ranges set forth in Chapter 40D-8, Florida Administrative Code. The District has not adopted water levels or rates-of-flow for those water bodies envisioned by this rule other than to establish minimum levels for some lakes within its jurisdiction. However, none of these lakes are on or near the Bass property, and this requirement is not applicable to the instant application. An applicant must also provide reasonable assurances that the proposed use will utilize the lowest water quality useable by the applicant for the intended purpose, or a lower quality water if available and useable for a portion of the intended use. Included within the "lower quality water" category is such water as recovered agricultural tailwater and collected storm water. In the instant case, the evidence shows that Bass will use the lowest quality water that is available and economically feasible for use. The majority of Bass’s water comes from the Floridan Aquifer which is of poorer quality than the intermediate aquifer under the Bass property. As to other potential sources, the evidence indicates that if the MODFLOW allotments are followed, there should be no tailwater available for use, and the use of collected storm water is neither feasible nor consistent with local agricultural practices. One of the requirements for issuance of a permit is a showing of reasonable assurances that the proposed use will not significantly induce saltwater intrusion. It is the opinion of District evaluators, and the evidence of records shows, that the property in issue is too far from a saltwater source for there to be any meaningful risk of lateral saltwater intrusion as a result of the proposed withdrawals. Further, the MODFLOW analysis suggests that the impact of groundwater withdrawal as a result of the permitted activity would be too light to cause any upcoming of saline water from a lower aquifer. Another permit requirement relates to the applicant providing reasonable assurances that the proposed use will not cause pollution of the aquifer. Information available to the District indicates there are no known contaminants in the aquifer system in the vicinity of the Bass property, and because of the rural nature of the property the existence of such plumes is unlikely. However, even were one or more to exist, MODFLOW indicates the withdrawals proposed under the permit applied for would be minimal and unlikely to cause or permit any contamination. The applicant is also required to provide reasonable assurance that the proposed water use will not adversely impact off-site land uses existing at the time of the application. Quail Creek has indicated that its property is used for cattle and citrus cultivation, and the photographic evidence presented by it would clearly indicate that the specific land receiving the off-site flow is used primarily for cattle grazing. Evidence of cattle deaths, as presented, failed to indicate that the deaths were the result of water flow over the land. In any case, the thrust of the rule deals with the result of withdrawal, not the subsequent consumptive use of the runoff onto the property. In this case, there is no evidence that the proposed water consumption by Bass which exceeds his present consumption rate will have any connection to Petitioner’s use of its land off the pumping site. The District rules also require an applicant to provide reasonable assurances that the proposed use will not adversely impact an existing legal withdrawal. MODFLOW analysis clearly indicates that proposed water consumption by Bass will not adversely impact any existing withdrawals. The modeling done reveals that the proposed withdrawals will result in a draw-down in the water table outside the Bass property by less than a foot. The draw-down in the aquifer outside the Bass property will not exceed 5 feet except in the case of one area 4,900 feet to the north of the Bass property. Quail Creek Farms, which lies to the south of the Bass property should not be effected. These draw- downs are well within the parameters set forth in BOR 4.8, which holds that draw-downs in the water table of less than 2 feet, and draw-downs in the aquifer of less than five feet are presumed not to cause adverse impacts to existing legal withdrawals. However, to ensure against any off-site impact as a result of approval of the instant permit, the District has included Special Condition 2 in the proposed permit which requires Mr. Bass to investigate and mitigate impacts to existing wells located within 4,900 feet of these production wells. The District has not applied that provision of the Rule 40D-2.301(1)(j) to the instant application evaluation. It contends that the provision of BOR 4.9 which interprets that rule to require the utilization of local water resources to the maximum extent possible before considering more remote alternate sources does not apply to applications for the withdrawal of water to be used on the same property from which withdrawn. Quail Creek disagrees with the District position, and suggests that before Bass should be given permission to pump more water from the ground, he should make use of collected storm water. This suggestion is not consistent with the District’s long-term interpretation of the rule. The rule under consideration here also requires the applicant to provide reasonable assurances that his proposed use will incorporate water conservation measures. In the instant case, the evidence shows that Bass uses pipes rather than open ditches to convey the water from the well-head to the irrigation ditches. This minimizes evaporation. He also operates an on- going leak detection and maintenance program for the system. He conducts a continuing analysis of the system’s efficiency. He avoids daytime irrigation and other practices so as to minimize evaporation. He has considered and continues to consider the feasibility of converting his system to a more efficient one. He has developed an irrigation schedule designed to maximize efficiency of delivery; and he has endeavored to reduce or eliminate runoff of water both to conserve water and to protect streams. However, to ensure maximum compliance with the spirit and letter of the rule, the District has attached Special Conditions 5 and 6 to the permit. Special Condition 5 requires Bass to continue implementing best management practices, and Special Condition 6 requires him to look into the feasibility of implementing a tailwater recovery system. If the run-off to Petitioner’s property is the result of irrigation and not rainfall, and this has not been effectively shown, implementation of a tailwater recovery system should substantially reduce, if not eliminate, it. Quail Creek contends these conditions will not effectively address the problem because, it alleges, Bass has been less than forthcoming in the representations made in his application. This allegation is not effectively supported by the evidence, however. Only Mr. Piercefield, testifying for Petitioner, indicated that on his few visits to the Bass property he had not observed any best management practices implemented, nor had he seen any evidence of them in the District’s file. The witnesses' testimony is not persuasive either in content or in presentation. Another requirement of the rule in question is for the applicant to provide to the District reasonable assurances that it will incorporate reuse measures to the greatest extent practicable. BOR 4.11 has defined "reclaimed water" as treated wastewater effluent. The District has properly concluded that wastewater effluent is not currently available for use by Bass on his property and is not likely to be available in the foreseeable future. Petitioner contends, however, that the rule applies to water resources other than treated effluent, such as storm water. This interpretation is contrary to the District’s long-standing interpretation and practice, and Petitioner has not supported it with any creditable evidence of record. Accepting, arguendo, the correctness of Petitioner’s interpretation, however, there is no indication that it would be technically and/or economically feasible to utilize storm water for irrigation on the Bass property. A requirement of the review process is that the applicant provide the District with reasonable assurances that the proposed use will not cause a waste of water. Waste is defined in BOR 4.12 as causing excess water to run into a surface water system. That is exactly what Petitioner claims is happening here. However, Petitioner has not presented credible evidence to demonstrate that it is irrigation water which is running onto its property. On the other hand, the evidence indicates that the Bass water allocation is based on a properly developed and run AGMOD simulation which estimates the minimum amount of supplemental irrigation water needed. It does not provide enough water for waste or runoff. If Bass properly operates and maintains his semi-closed irrigation system, and it is to his economic advantage to do so, its use would result in only minimal runoff. In addition, the implementation of Special Condition 6, calling for a tailwater recovery system, would further preclude the run-off of any excess irrigation water and recycle it for further irrigation. In the event all this fails, or in the event of unusual and unexpected excessive rain should occur, Special Condition 7 in the permit provides recourse to Petitioner. A final requirement of the permitting rule is the need for the applicant to provide the District with reasonable assurances that the proposed use will not be otherwise harmful to the water resources of the District. Petitioner contends that Bass has not shown compliance with BOR 2.2, which holds that a permit application is not complete until the surface water management permit application required by the District is deemed complete and the impact of withdrawals on the applicant’s existing permitted surface water management system is evaluated. This requirement is not included in the permitting rule of the District, 40D-2.301(1), and the District has historically not required a showing of compliance. The District has taken the position here, however, that Bass has complied with the provision. In this case, a surface water management permit application was not required because the area of the Bass property to be used for the growing of crops was exempted from surface water management permitting by the District in 1993. In addition, the withdrawal impact was evaluated for Bass’s existing 25 acre permitted surface water management system as a part of the MODFLOW analysis, and this analysis showed that the projected withdrawal of groundwater would lower the water table by much less than one foot. The District considers this to be a minor impact and it is so found. Taken as a whole, the evidence of record indicates that Bass operates an efficient and well-maintained irrigation system which, used properly, is not likely to cause the run-off attributed to it by Petitioner. Support for this determination is seen in the fact that at the time of the worst flooding, rainfall in the area was at significant highs. This is supported by the testimony of Mr. Garrett, the hydrologist. In addition, the evidence also shows that at those times of flood, the Bass wells either were not operating at all or were operating at less than permitted production. Further, it would be economically inappropriate for Bass to flood his fields with more than necessary water because of the cost of pumping, and the resultant damage to crops.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Southwest Florida Water Management District enter a Final Order approving water use permit 207025.04 to Charles Bass as proposed. DONE AND ENTERED this 27th day of April, 1999, in Tallahassee, Leon County, Florida. ARNOLD H. POLLOCK 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) 921-6947 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 27th day of April, 1999. COPIES FURNISHED: Timothy A. Hunt, Esquire Hill, Ward & Henderson, P.A. 101 East Kennedy Boulevard Suite 3700 Tampa, Florida 33602 Edward P. de la Parte, Jr., Esquire David M. Caldevilla, Esquire Charles R. Fletcher, Esquire de la Parte, Gilbert & Bales 101 East Kennedy Boulevard Suite 3400 Tampa, Florida 33602 Margaret Lytle, Esquire Tony Muntchler, Esquire Southwest Florida Water Management District 2379 Broad Street Brooksville, Florida 34609-6899 Edward B. Helvenston, General Counsel Southwest Florida Water Management District 2379 Broad Street Brooksville, Florida 34609 F. Perry Odom, General Counsel Department of Environmental Protection 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 E. D. "Sonny" Vergara, Executive Director Southwest Florida Water Management District 2379 Broad Street Brooksville, Florida 34609-6899
The Issue The issue in this case is whether the application of Respondents Falkner to transfer and modify a Water Use Permit should be approved.
Findings Of Fact The Southwest Florida Water Management District (District) is responsible for regulation and protection of water resources in the geographic area involved in this proceeding. Since 1994, John Falkner has owned the property in Hillsborough County which is the subject of this proceeding. The Falkner property is farmed by Christopher Falkner, the owner's brother. Prior to purchasing the land, the Falkners farmed the property, also known as the Rogers farm, through a lease arrangement with the previous owner. Rose Ann DeVito owns property to the south of the Falkner property. In the time since Ms. DeVito purchased the property, the elevation of Sumner Road has been raised and culverts were replaced. A fish farm was constructed in close proximity to her property. The result of this and other development has been to direct all the water flow from the surrounding area into the stream adjacent to the DeVito property. Drainage patterns in the area of Ms. DeVito's property have been altered since she first occupied the property. A ditch along Sumner Road which used to handle runoff from her property has been blocked by a neighbor's driveway. Maintenance on the ditch, allegedly a county responsibility, is described as poor. The ditch at the rear of Ms. DeVito's property handled water flow to Bullfrog Creek until the water flow became blocked, and the water diverted onto her property. The effect is that Ms. DeVito's property often contains a large amount of water. A substantial amount of sand is visible on her property, allegedly deposited by water flow. According to Ms. DeVito, both the county and the District have blamed the Falkner farm for the water-deposited sand. Charles and Diana Booth own property adjacent and to the south of the Falkner property. From 1992 to 1994, the Booths suffered from water running off the Falkner/Rogers farm and flooding the Booth property. A flood of the Booth property in the Fall of 1994 was not caused by irrigation but was related to a ten inch rainfall event at the Falkner farm. A ten inch rainfall exceeds a 25 year storm event and would likely result in widespread flooding. The Booths' pasture, top soil and driveway were eroded by the flooding. During the two years of flooding, Mr. Booth complained on several occasions about the flooding to the Falkners' foreman, "Cleo." The complaints were not relayed to Mr. Falkner. In October 1994, Mr. Booth reported the problem to the Southwest Florida Water Management District. Soon after the complaint was made, a representative of the District inspected the property and determined that a ditch needed maintenance. Shortly thereafter, the ditch was cleaned and a berm was installed to redirect runoff away from the Booth property. There has been no further flooding of the Booth property. In October 1995, Mr. Booth became concerned that a ditch was filling with sand and would not continue to handle the runoff. After voicing his concern, a water diverter was installed in the ditch and appears to have remedied the situation. At the time the Falkners began to lease the Rogers property, an existing water use permit, numbered 206938.01, had been issued and was valid for the farm. The Falkners have applied to transfer the existing water use permit from the previous property owner. The Falkners also seek to modify the permit, increasing the total quantities which can be pumped by transferring previously approved quantities from another permit the Falkners currently hold. All of the relevant wells are within the District's Most Impacted Area (MIA) of the Tampa Bay Water Use Caution Area. The District allows a permit holder within the MIA to increase withdrawals from a well by transferring the quantities from another permitted well within the MIA. The other Falkner farm (the "301 farm") from which the quantities would be transferred is located approximately one-half mile to the south of the Rogers farm and is within the MIA. The District reviewed the application and, on September 29, 1995, issued its Proposed Agency Action to Issue Water Use Permit No. 206938.03. The proposed permit includes special conditions requiring monthly pumping reports, water quality reports, adherence to District irrigation allotments (irrigation levels established by the AGMOD computer model) and crop reporting. In reviewing the application the District utilized the criteria set forth in Florida Administrative Code, and the Basis of Review, incorporated into the code by reference. In order to obtain a Water Use Permit, an applicant must demonstrate that the water use is reasonable and beneficial, is in the public interest, and will not interfere with any existing legal use of water. Additionally, the applicant must provide reasonable assurances that the water use: will not cause quantity or quality changes which adversely impact the water resources, including both surface and ground waters; will not adversely impact offsite land uses existing at the time of the application; will not cause water to go to waste; and will not otherwise be harmful to the water resources within the District. The uncontroverted evidence establishes that the water use is reasonable, beneficial and is in the public interest. The Falkners irrigate farmland to produce agricultural products. The production of food is in the public interest. The proposed use is reasonable and beneficial. Further, uncontradicted evidence and opinions of expert witnesses establish that the proposed use will not interfere with any existing legal use of water. The applicant must provide reasonable assurances that the water use will not cause quantity or quality changes which adversely impact the water resources, including both surface and ground waters. The evidence establishes that pumping from the Falkner wells will not adversely affect the quality of water within the aquifers from which the water is drawn. Mr. Booth asserted that he is having water quality problems, specifically with rust in his well. The Booth well is approximately 25 years old. There is no evidence that the rust is related to the Falkner pumping. The DeVito and Booth wells draw from the Intermediate aquifer. Review of the potentiometric surface map of the intermediate aquifer indicates that there is a water level variation of 17 feet between the rainy and dry seasons. The result of the variance can be "dry" wells. There are two wells on the Falkner/Rogers property relevant to this proceeding. The first (District ID number 1) is 770 feet deep, is cased to a depth of 160 feet, and opens to the Floridan aquifer. The second (District ID number 2) is 1100 feet deep, is cased to a depth of 140 feet, and opens to the Intermediate and the Floridan aquifers. A cased well does not withdraw water from the formations through which the casing is placed. For example, a well cased to a depth of 160 feet draws no water from the top of the casing (at approximately ground level) to the bottom of the casing at 160 feet. The Intermediate aquifer releases water at a much slower rate than the Floridan aquifer. Based on the type and location of the Falkner wells, the vast majority of the water pumped by the Falkners comes from the Floridan aquifer. Impacts on existing wells are calculated through computer modeling. The "MOD" flow model demonstrates impacts that will occur after 90 days of pumping at peak month levels with no recharge to the aquifer. The MOD flow model results in a conservative "worst case" projection. The MOD flow model calculation projects the drawdown at Falkner well number 1 to be approximately .9 feet. The MOD flow model calculation projects the drawdown at Falkner well number 2 to be approximately 1.4 feet. The MOD flow model calculation projects the drawdown at the Booth well to be approximately one-half foot. The impact on the DeVito well will not exceed that projected at the Booth well. District permitting criteria allow for projected MOD flow model drawdown impacts of less than five feet at existing wells. The impact possible after approval of this application falls well within the District's guidelines. The impact of pumping if the application at issue in this proceeding is approved will result in a maximum variation of one-half foot at the Booth well. The evidence fails to establish that any problems related to water quantity encountered by the Booths are related to agricultural pumping at the Falkner farms. The evidence also establishes that, based on the existing retention and drainage system, the proposed use will not adversely impact surrounding surface water bodies. A system of swales and ditches is utilized to retain the water on the farm property. The evidence fails to establish that runoff from the Falkner/Rogers farm will adversely impact surrounding surface waters if this application is approved. The applicant has provided reasonable assurances that the water use will not adversely impact offsite land uses existing at the time of the application. The evidence establishes that the runoff from the Falkner farm does not discharge directly to the stream at the rear of the DeVito property. Other agricultural property discharges into the stream adjacent to the DeVito property. There is a steady waterflow through the stream at all times, whether or not the Falkner pumps are operating. Ms. DeVito's property consists of Myakka soil, which has little capacity to absorb rainfall and generates large amounts of runoff. The altered drainage patterns in the area have resulted in substantial water on her property. The evidence in insufficient to establish that the Falkner farm pumping has resulted in flooding on Ms. DeVito's property. The evidence fails to establish that approval of the application at issue in this proceeding will cause adverse impact to the DeVito property or will result in water quality or quantity problems. The Booths are concerned that the existing drainage system will not be maintained and that increased pumping will result in their land being flooded again. The evidence fails to establish a substantial likelihood that the Falkner farm drainage system will not be maintained. The applicant has provided reasonable assurances that the water use will not cause water to go to waste. The Falkners use a semi-enclosed seep irrigation system at the Rogers farm. Irrigation is only used when necessary. Mushroom compost, humates, and plastic mulch retain moisture in the soil. A special condition of the permit requires the Falkners investigate the feasibility of tail water recovery and reuse. The applicant has provided reasonable assurances that the use will not otherwise be harmful to the water resources within the District. The permit application results in no increased withdrawal of water than is allowed under the existing permits for the Rogers and the "301" farms.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that the Southwest Florida Water Management District enter a Final Order granting the Falkner application and issuing permit number 206938.03. DONE and ENTERED this 26th day of April, 1996 in Tallahassee, Florida. WILLIAM F. QUATTLEBAUM, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 26th day of April, 1996. APPENDIX TO RECOMMENDED ORDER, CASES NO. 95-5763 and 95-5764 To comply with the requirements of Section 120.59(2), Florida Statutes, the following constitute rulings on proposed findings of facts submitted by the parties. Petitioners Booth The Petitioners Booth proposed findings of fact fail to comply with the requirements of Rule 60Q-2.031(3), Florida Administrative Code, which requires citations to the record of hearing. The proposed findings are rejected as irrelevant or not supported by the greater weight of the evidence except where they are consistent with the Findings of Fact set forth herein. Respondents The Respondents' joint proposed findings of fact are accepted as modified and incorporated in the Recommended Order except as follows: 15. Rejected, cumulative. 28-29. Rejected, subordinate. 33. Rejected, subordinate. COPIES FURNISHED: Rose Ann DeVito, pro se 11001 Sumner Road Wimauma, Florida 33598 Diana P. and Charles B. Booth, pro se 10812 Sumner Road Wimauma, Florida 33598 Patricia Petruff, Esquire Dye and Scott, P.A. 1111 Third Avenue West Bradenton, Florida 34206 Martin Hernandez, Esquire Southwest Florida Water Management District 2379 Broad Street Brooksville, Florida 34609-6899 Peter G. Hubbell, Executive Director Southwest Florida Water Management District 2379 Broad Street Brooksville, Florida 34609-6899
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found: The 626-acre site of the proposed Riverbay development is currently undeveloped land located in Manatee County in the western portion of the City of Bradenton. Specifically, the property lies in Sections 22, 24, and 26. Township 34 South, Range 16 East, Manatee County. The site is owned entirely by Boyd, with the exception of the northern portion for which Boyd has a valid option to purchase. Tampa Bay lies to the north of the site and Perico Bayou lies to the west. Both are natural Class III water bodies. Boyd proposes to develop approximately 325 acres of the site primarily as residential, with an 18-hole golf course and recreational facilities, a commercial/professional area, lakes and attendant streets. The remainder of the site, approximately 300 acres, will be retained as a natural mangrove preserve pursuant to a conservation easement to be executed by Boyd upon receipt of the permit sought in these proceedings. The proposed project has been approved by Manatee County as a planned development residential district with a maximum total number of units not to exceed 957. The Riverbay site has been disturbed by human activity and has been subject to numerous alterations, including extensive mosquito control ditching, dirt roads, borrow pits and a perimeter dike with culverts and flapgates. The government- approved mosquito control ditches resulted in overdrainage of freshwater from adjacent uplands and allowed the incursion of saltwater into the uplands. In order to facilitate and enhance agricultural utilization of the site, and to protect the land from unusually high waters from the Bay, the perimeter dike was constructed with culverts and flapgates in the early 1970's. This dike and other internal drainage systems were designed to reduced interstitial soil salinity so that the land could be utilized for agricultural purposes. The primary site of concern in this proceeding is a sandy area located south of the northern mangrove area and separated from that area by the perimeter dike. Prior to the construction of that dike, the area was inundated by high tides. Since construction of the dike, inundation of the sandy area by marine waters has been limited to unusual storm surges that overtopped the dike or to those occasions when the flapgates required maintenance or adjustment. Over the years following the dike construction, the sandy area has been intermittently planted with grasses, mowed, disked and, when agricultural activities were temporarily reduced in that area, overtaken with some exotic vegetation and other weedy species. The salt tolerant vegetation in the sandy area is currently patchily distributed, and the area has basically little or no productivity in its present state. This is primarily due to the lack of tidal inundation and tidal exchange, which renders the sandy area minimally valuable as habitat for either terrestrial or aquatic organisms. Functioning salt marsh flats, also referred to as salt pans, salterns, salt barrens of salt flat wetlands, constitute an integral part of the life cycles of some fishes, such as snook, mullet and ladyfish. Juvenile fish rely upon these areas for food and protection during this early period of development. High, shallow salt marsh areas are also utilized for feeding purposes by wading birds and shore birds, such as the great egret, white ibis, tricolor heron, green heron and wood stork. While the salt fish flat area on the Boyd site could have value for fish and wildlife if it were returned to tidal influence, its is not currently a productive area from wither a fisheries or wildlife standpoint. Fiddler crab burrows were observed on the site, but these were found mainly around the ditches or existing culverts. The existing site is not conducive in its present state to the feeding, nesting or resting or rare, threatened or endangered species. The original DER jurisdictional determination was performed on the Riverbay site in May of 1983, and resulted in an inclusion of approximately 46 acres, some 35 or which were situated in the sandy area in the northern part of the property. This determination was validated in May of 1985. In the Spring of 1984, Boyd entered into discussions with the DER prior to filing its dredge and fill permit application, and a mutually acceptable site plan and mitigation package was developed. Boyd then submitted its application in February of 1985. After a hearing was requested, DER revisited its prior jurisdictional determination and concluded that it was in need of revision. Utilizing the jurisdictional criteria which existed prior to October 1, 1984, DER reduced the extent of its jurisdictional determination by including only about 16.5 acres of the sandy area, and again noticed its intent to issue the requested permit. At the time DER performed its new jurisdictional, it was its policy to utilize the pre-Henderson vegetation listing to determine jurisdictional wetlands when a grandfathered applicant with a validated jurisdictional line timely requested a reevaluation of that line. The mitigation plan originally proposed by Boyd was not altered as a result of the reduction of impacted jurisdictional acreage to 16.5 acres. The project as proposed by Boyd includes the filling of 16.5 acres of jurisdictional wetlands located in the sandy area discussed above. In mitigation, Boyd proposes to create approximately 17 acres of wetlands from natural uplands located adjacent to undisturbed wetlands in the western portion of the property. Of these 17 acres, 1 1/2 to 5 acres are proposed for a saltern of salt pan habitat. The creation of a salt pan is experimental, but several experts attested to a high probability of success once proper elevations for vegetative plantings are determined. The remainder of the 17 acres of wetlands creation will be graded to the proper elevations, allowed to be inundated with tides and vegetated either naturally with mangroves or will be supplemented with hand plantings. The mitigation plan proposed by Boyd also includes some engineering measures to improve flushing in the northern mangrove area, which was found to be somewhat stressed, a surface water management plan which meets relevant criteria and a perpetual conservation easement to the DER of approximately 300 acres of mangrove areas on the northern and western boundaries of the property. This mangrove fringe will serve as a buffer between the open waters of Tampa Bay and Perico Bayou and the project site. Due to the existence of the perimeter dike, the area to be filled is isolated from Tampa Bay and the adjacent mangroves. The culverts can be sealed during construction to retain all fill materials and turbidity will be controlled. The stormwater system for the project site has received the approval of the Southwest Florida Water Management District and complies with the design and performance criteria set forth in Chapter 17-25, Florida Administrative Code. In its final configuration, the proposed project will contain various freshwater wetlands located landward of the perimeter dike. These include three existing borrow pits and the proposed stormwater retention ponds. These water bodies, as well as the attendant littoral zones surrounding them, will serve as habitat for aquatic and terrestrial organisms. Boyd will utilize state-of-the-art preserved pilings for any wooden structures located in jurisdictional wetlands. Such pilings will be treated in a manner that both prevents deterioration and prohibits the leeching of compounds into the water. At present, DER has no promulgated rule concerning mitigation for dredge and fill projects. Its policy is to review all projects on a case-by-case basis to determine the acceptability of the mitigation package offered by an applicant. DER's goal is to replace the environment with the same benefits to be lost from a particular wetland. DER has no established ratio between the extent of the mitigated area and the area to be filled. The area ultimately accepted in mitigation is dependent upon the existing condition of the area to be filled, in terms of its current form, function and vitality. As opposed to a "like- for-like" mitigation policy, it is DER's policy to review the similarity in form and function between the area to be lost and the area to be created or enhanced by the project. If the area to be lost or filled is stressed or damaged in its existing state, less mitigation is required. When evaluating a proposed dredge and fill project, it is DER's policy and practice to review the current situation on the site. If the site has been altered in a manner which did not require an environmental permit, DER looks at the land as it presently exists, for both jurisdictional purposes and to determine its form, function and viability for mitigation purposes. Neither flapgate maintenance nor mowing requires a DER permit. A DER official could not recall an instance when DER has required a permit for disking. Projects in the area surrounding the Boyd site present no adverse cumulative impacts in relation to the proposed Riverbay project. Indeed, the proposed conservation easement will serve to reduce the impact of this and similar projects on this site and adjacent, wetland areas. Manasota-88, Inc. is incorporated under the laws of the State of Florida as a charitable public interest non-profit corporation and has properly authorized this pending litigation pursuant to its charter and/or bylaws.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: This controversy began on July 9, 1990, when petitioners, David and Victoria Page, filed an application with the district office of respondent, Department of Environmental Regulation (DER), seeking the issuance of a permit authorizing certain construction activities (including the erection of a seawall) on their residential lot located at 3108 Gulfwinds Circle, Hernando Beach, Florida. The property faces west on the Gulf of Mexico, a water body designated as a Class III water in the State. The application was eventually deemed to be complete on October 24, 1990. After conducting a review of the application and an on-site inspection of the property, on January 18, 1991, DER issued its notice of permit denial. The notice identified the reasons for the denial as being petitioners' failure to give reasonable assurances that water quality standards would not be violated and that the project would be in the public interest. Also, DER cited expected adverse cumulative impacts if the application was granted. The notice provided further that if petitioners agreed to locate their seawall landward of the jurisdictional line, the project would be approved. In July 1991, petitioners amended their application to propose that the seawall be constructed even further seaward of the jurisdictional line. When efforts to resolve the case were unsuccessful, petitioners requested a formal hearing on January 17, 1992, to contest the agency's decision. Petitioners purchased their property in 1989. It lies within Unit 2 of Gulf Coast Retreats, a residential subdivision in Hernando Beach, Florida. The property is identified as lot 20 on Gulfwinds Circle and fronts the Little Pine Island Bay (Bay), which is a part of the Gulf of Mexico. Access to the Gulf is provided by a channel (six feet in depth) in the Bay in front of lot 20 and which eventually runs into the Gulf several miles south of petitioners' lot. It is undisputed that in 1985 Hurricane Elena passed offshore causing erosion to lot 20 and other adjacent lots. Consequently, the upland portion of the lot is now smaller than before the hurricane. However, petitioners purchased their property in that state of condition. Lots 19 and 21 are on the south and north sides of petitioners' property and are owned by the Steins and Budricks, respectively. Both neighbors have constructed vertical concrete seawalls in front of their homes. Budrick was issued a permit to construct a seawall on December 28, 1989, while Stein constructed his without a permit. However, Stein has subsequently filed an after-the-fact permit application and was recently advised by DER that the application was complete. At hearing, a DER representative expressed the view that the Stein application will probably be approved since his wall is landward of the DER jurisdictional line. It is noted that the Stein and Budrick seawalls sit back from the original property lines because of the erosion suffered during the 1985 hurricane and correspond to the jurisdictional line established by DER on their property. Another application for a permit to construct a seawall was filed by the owner of lot 18 in March 1992. Like Stein and Budrick, that owner proposed to construct his wall on the landward side of the jurisdictional line. Petitioners, who live in Kansas, desire to construct a home on their lot. They have proposed to place one hundred cubic yards of fill (limerock) on 1,065 square feet of intertidal wetlands on the western end of their lot and construct a 110-foot vertical seawall up to thirty feet seaward of the jurisdictional line. Thus, there will be dredge and filling activities in the Gulf of Mexico, a class III water of the state, thereby invoking the jurisdiction of DER. By law, DER is required to establish a jurisdictional line to show the landward extent of waters of this state, including the Gulf of Mexico. Such extent is normally defined by species of plants or soils which are characteristic of those areas subject to regular and periodic inundation by the waters of the state. As a general practice, using a prescribed plant or species indicator list, DER makes an on-site inspection of the property to determine what vegetation, if any, is found on the property and is subject to regular and periodic inundation by the waters. In this case, the dominant vegetation found on lot 20 was paspalum distichum, a plant on the species list subject to regular and periodic inundation by the Gulf waters. Accordingly, DER observed where the vegetation ended and used that point for the placement of the jurisdictional line. As a cross check, DER also noted the rack line, which is indicative of the landward extent to which the high tides rise, and found it to correspond to the vegetation line. It should be noted that the jurisdictional line established on petitioners' property corresponds with the line drawn on lots 18, 19 and 21, and if that line is used to construct the seawall on lot 20, the seawalls on all four lots would run in a straight line. Although petitioners objected to the jurisdictional line as established by DER, they offered no credible evidence to show that it was improper or should have been placed at a different location. On January 9 and 15, 1991, Richard W. Pugh, a DER field environmental specialist, conducted an on-site inspection of the property and adjacent waters. He also was responsible for establishing the jurisdictional line. Finding numerous adverse environmental effects that would occur if the permit was granted as proposed, Pugh recommended that the application be denied. This recommendation was accepted by the deputy assistant secretary for DER's Southwest District Office and a notice of permit denial was accordingly issued. The bases for the denial were that (a) reasonable assurances had not been given by petitioners that water quality standards would be satisfied; (b) a cumulative adverse impact on the area would occur if the permit was approved, and (c) petitioners had failed to give reasonable assurances that the project was in the public interest. In order to prove entitlement to a permit, petitioners must give reasonable assurance that water quality standards will not be violated and that the project is in the public interest. In this respect, they offered no evidence to provide these assurances. This in itself supports a finding that no entitlement to a permit has been shown. Even so, the agency elected to present evidence on these issues after petitioners' case-in-chief was concluded. Findings of fact drawn from that evidence are set forth below. On April 6, 1992, a DER marine biologist, Dr. George H. Farrell, visited the site and conducted a biological evaluation of the composition of the benthic community in the intertidal and subtidal wetlands which would be impacted by the project. Based on his tests and observations, Dr. Farrell concluded that the project as proposed would have an adverse impact on marine and wildlife resources in the area. This is because the area has very good water quality, contains a high species diversity, performs an integral part in the food web, and serves a valuable nursery function for estuarine dependent juvenile fish species and a corridor function for migrating estuarine dependent fish species. This testimony was not challenged by petitioners and is hereby accepted. 1/ In granting or denying a water resource permit, DER is also required to consider certain statutory criteria found in Subsection 403.918(2), Florida Statutes, to determine whether a project is in the public interest. Although petitioners did not address these criteria, and thus failed to give any assurances that the project is in the public interest as required by law, testimony adduced by DER established that under petitioners' proposal, there will be a permanent loss of 1,065 square feet of intertidal wetlands due to filling activities. These wetlands are now used by fish and wildlife habitat and will no longer be available for use. In addition, the same area is used as a nursery area by a variety of fish species. As such, the project will adversely affect the conservation of fish and wildlife and their habitats and will adversely affect the fishing values and marine productivity in the vicinity. Second, because petitioners' proposed seawall will jut out from their neighbors' walls by as much as thirty feet, and the corners of the seawall in that configuration will result in erosion or shoaling depending on whether the waters are moving north or south, the project will cause harmful erosion or shoaling. Third, because the wall is being constructed of concrete and steel and is not temporary, the project will be of a permanent nature and thus have a permanent adverse impact. Finally, the ecological functions being performed in the immediate vicinity of the project are extremely important and the elimination of this zone will significantly impair those functions. Collectively, these considerations support a finding that the project is not in the public interest. DER has a policy of not granting a permit if adverse cumulative impacts may be expected as a result of granting that permit. This policy is derived from a statute (s. 403.919, F.S.) requiring such impacts to be considered in the permitting process. In the case at bar, DER reasonably predicts that if it granted petitioners' application and authorized them to construct a seawall which jutted out up to thirty feet beyond their neighbors' walls, it would be obligated to grant similar permits to property owners on adjacent lots. Because petitioners' application will have an adverse impact on the water quality and is contrary to the public interest, the granting of additional permits would exacerbate those impacts. When an applicant proposes to fill (destroy) wetlands, and the applicant is unable to meet the public interest criteria set forth in subsection 403.918(2), DER shall consider measures proposed by or acceptable to the applicant to mitigate the adverse effects caused by the project. In this case, no mitigative measures were proposed by petitioners. At hearing, petitioners' representative asserted that in June 1991, the Cabinet (presumably sitting as the Board of Trustees of the Internal Improvement Trust Fund) implemented a new "policy" which allows property owners to "recover and bulkhead" land previously lost due to avulsion and erosion. He further represented that such requests were to be filed within five years after the event (hurricane). Although petitioners were not the property owners when the event occurred, and more than five years has elapsed, in July 1991 petitioners filed a request with the Department of Natural Resources (DNR) to reclaim and bulkhead their property and that request remained pending as of the date of hearing. A copy of the policy itself (or rule, if any, implementing the policy) was not made a part of this record. Even so, there was no evidence to establish that the granting of that application would require DER to grant a water resource permit, and DER takes the position that the request has no bearing on the issue of whether a water resource permit should be issued to petitioners.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be entered denying petitioners' application for a water resource permit. DONE and ENTERED this 27th day of April, 1992, in Tallahassee, Florida. DONALD R. ALEXANDER Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 27th day of April, 1992.
The Issue The issue is whether an Environmental Resource Permit (ERP) and a Letter of Consent to Use Sovereignty Submerged Lands (Letter of Consent) should be issued to Respondent, Palm Beach County (County), authorizing it to fill 7.97 acres of submerged lands for a restoration project in Lake Worth Lagoon.
Findings Of Fact Based upon all of the evidence, the following findings are determined: The Parties Trump is the owner association for a two-towered residential and commercial condominium building located at 525 South Flagler Drive in downtown West Palm Beach, upland and west of the project site in the Lagoon. Each tower rises thirty floors and together they have of two hundred twenty units. The first five floors are common areas including a lobby on the first floor, while a pool and patio are located on the fifth floor of the north tower. The property is separated from the Lagoon by Flagler Drive, a four-lane divided road with landscaping and sidewalks which runs adjacent to, and on the western side of, the Lagoon. There is no dispute that Trump has standing to initiate this action. Flagler owns, manages, and leases two multi-story office buildings located at 501 Flagler Drive on the upland real property directly west of the project location. Like the Trump property, the Flagler property is separated from the Lagoon by Flagler Drive. There is no dispute that Flagler has standing to participate in this matter. The County is a political subdivision of the State and is the applicant in this proceeding. The Department is the state agency with the authority under Part IV, Chapter 373, Florida Statutes,2 to issue to the County an ERP for the project, as well as authority as staff to the Board of Trustees of the Internal Improvement Trust Fund (Board of Trustees) to authorize activities on sovereign submerged lands pursuant to Chapter 253, Florida Statutes, and Chapter 18-21. Background On October 29, 2007, the County submitted to the Department its Joint Application for an ERP and Letter of Consent to use sovereignty submerged lands in the Lagoon owned by the Board of Trustees. The application was assigned File No. 50- 0283929-00. After an extensive review process, including three requests for additional information, on August 12, 2008, the Department issued its Notice of Intent authorizing the County to fill 7.97 acres of submerged lands in the Lagoon with approximately 172,931 cubic yards of sand and rock material to create the following: (a) approximately 1.75 acres of red mangrove habitat including 1.52 acres of mangrove islands and 0.23 acres of red mangrove planters; (b) approximately 0.22 acres of cordgrass habitat; (c) approximately 0.90 acres of oyster habitat; (d) approximately 3.44 acres of submerged aquatic vegetation habitat; and (e) a 10-foot by 556-foot (5,560 square feet) public boardwalk with two 3-foot by 16-foot (48 square feet) educational kiosk areas and a 16-foot by 16-foot (256 square feet) observation deck for a total square footage of approximately 5,912 square feet. The Notice of Intent also included a number of general and specific conditions particular to this project. Trump (by timely Petition) and Flagler (by intervention) then challenged the Notice of Intent. They contend generally that the project unreasonably infringes upon or restricts their riparian rights and fails to meet the permitting and consent to use criteria set forth in Chapters 18-21 and 40E-4, as well as Chapter 373, Florida Statutes, and Section 253.141, Florida Statutes. Conflicting evidence on these issues was presented at the hearing. The conflicts have been resolved in favor of the County and the Department, who presented the more persuasive evidence. The Project The project area is a cove in the Lagoon, a Class III water body which extends within the County from North Palm Beach to Manalapan. The western side of the water body in the project area is lined with a vertical concrete seawall approximately 6.64 feet above the mean low water line. The waters immediately adjacent to the Trump and Flagler upland property are generally two to five feet deep along the seawall. To the east lies the island of Palm Beach, to the south is the Royal Park Bridge, which connects West Palm Beach and the Town of Palm Beach, while to the north is the Flagler Memorial drawbridge. The Lagoon is approximately 2,000 feet from shore to shore. The Intracoastal Waterway (ICW) runs roughly through the middle of the Lagoon in a north-south direction. Currently, there is an artificial dredge hole in the project area around four hundred feet from the western seawall. The dredge hole, which descends to approximately twenty feet at its deepest location, is filled with muck, which can be re- suspended by wave energy into the water, blocking the sunlight necessary for the support of biotic life. The muck covers the natural hard bottom, consumes oxygen, and presents an unsuitable environment for benthic organisms. The dredge hole is too deep to support seagrasses. The project calls for filling the dredge hole to intertidal elevations, i.e., between the high and low tide elevations, for mangroves and elevations suitable for seagrass. In all, approximately 173,000 cubic yards of fill will be placed in and around the hole to build up three separate islands within the project footprint, on which the County will plant 10,000 red mangroves, which naturally grow between fifteen and twenty-five feet in height. (The County estimates that eighty to ninety percent of the mangroves will survive and grow to a height of at least fifteen feet.) The top of the islands, not including mangroves, will be just below the mean high water mark. The County also proposes locating planters along the seawall and oyster reefs along the southern end of the project. The planters are designed to extend out approximately twenty feet from the seawall and will be placed on sovereign submerged lands. The last five feet will consist of limestone rock. Mangrove, spartina, and seagrass habitats will provide a biodiverse source of food and habitat for other species, and occurs naturally within the Lagoon but has been lost over time. Oyster habitat is proposed for additional bio-diversity and to provide a natural water filtration function. From the County's perspective, the restoration project would be incomplete without all the habitats proposed. The planters will be at an intertidal elevation, planted with red mangroves and spartina, and faced with rock to reduce wave energy in the area. The oyster reefs are rock structures designed to rise one foot above mean high water line for visibility to boaters. The project also includes a boardwalk and attached educational kiosks on the south side of the project to bring the public in contact with the habitats. The County will maintain the boardwalk, empty the trash daily, and open/close the gates at sunrise/sunset. The County proposes a minimum ten-foot buffer between seagrass beds and the fill area. The project is part of the County's Lagoon Management Plan, which outlines the County's restoration goals within the Lagoon. The County has performed numerous other restoration projects within the Lagoon to re-introduce mangrove and seagrass habitat, such as Snook Island, which consisted of filling a 100- acre dredge hole, installing mangrove islands, seagrass flats, and oyster reefs. The Snook Island project restored mangrove habitat and recruited fish and bird species, including endangered and threatened species. Snook Island has remained stable, with no sediment deposition or erosion. The County intends to fill the dredge hole with native lagoon bottom sediment. A clam-shell machine will deposit the sediment below the water line to reduce turbidity. Sediment will be placed around the edges of the dredge hole, reducing the velocity of the fill as it settles to the bottom and encapsulates the muck, as required by Draft Permit Special Condition No. 19. The County will use turbidity curtains, monitor conditions hourly, and stop work if turbidity levels rise beyond acceptable standards. These precautions are included in Draft Permit Conditions 12, 13, and 14. The County will use construction barges with a four- foot draft to avoid propeller dredge or rutting and will place buoys along the project boundary to guide the construction barges, precautions integrated into the Draft Permit conditions. The County's vendor contracts require maintenance of construction equipment to prevent leakage. A similar condition is found in the Draft Permit. Both the intertidal and seagrass flats elevations at the top of the islands will be built at a 4:1 slope; elevations subject to wind and wave energy will be reinforced with a rock revetment constructed of filter cloth and rock boulders. Seagrass elevations will have no reinforcing rock because they are deep enough to avoid significant currents. Proposed drawings were signed and sealed by a professional engineer. The ERP Criteria To secure regulatory approval for an ERP, an applicant must satisfy the conditions in current Rules 40E-4.301 and 40E- 4.302. The first rule focuses primarily on water quantity, environmental impacts, and water quality. The latter rule requires that a public interest balancing test be made, and that cumulative impacts, if any, be considered. Also, the BOR, which implements the rule criteria, must be taken into account. a. Rule 40E-4.301 21. Paragraphs (1)(a), (1)(b), (1)(c), (1)(g), (1)(h), and (1)(k) and subsections (2) and (3) of the rule do not apply. Although Trump and Flagler have focused primarily on paragraphs (1)(d), (f), and (i) in their joint Proposed Recommended Order, all remaining criteria will be addressed. Paragraph (1)(d) requires that an applicant give reasonable assurance that the proposed activity "will not adversely affect the value of the functions provided to fish and wildlife and listed species by wetlands and other surface waters." Based on the project design, the filling of the dredge hole and capping of muck, the restoration of seagrass habitat, and the creation of mangrove habitat, the project will have no adverse impacts but rather will be beneficial to the value of functions for fish and wildlife. Paragraph (1)(e) requires that an applicant give reasonable assurance that the proposed activity will not adversely affect the quality of receiving waters. The County will be required to manage turbidity that may be generated from the project. In part, the turbidity will be contained by the proposed construction method for filling the dredge hole. As noted earlier, the native sand will be deposited using a clamshell-type arm to dump the sand under the water around the periphery of the edge of the downward slope of the dredge hole. This will continue around the periphery of the hole, building up a lip and letting it slide down towards the bottom of the hole, squeezing the muck into the center of the hole and beginning to encapsulate it. Once there are several feet of native sand over the muck to encapsulate it, the County will resume the filling at the target rate. Subsection 4.2.4.1 of the BOR requires that the County address stabilizing newly created slopes of surfaces. To satisfy this requirement, the County will place the fill at a 4:1 slope. The outer edge of the mangrove islands slope back to a 4:1 slope and use rock rip-rap to stabilize that slope. Also, filter cloth, bedding stones, and boulders will be used. Because water currents slow near the bottom, the 4:1 slope for the seagrass elevations on the bottom will not de-stabilize. There will be turbidity curtains around the project area. Those are floating tops and weighted bottoms that reach to the bottom and are intended to contain any turbidity that may be generated by the project. Specific Conditions 12, 13, and 14 require extensive monitoring of turbidity. The County proposes to use a barge with a draft no greater than four feet. This aspect of the project will require a pre-construction meeting and extensive monitoring throughout the project. As a part of the application review, the County performed a hydrographic analysis which was coordinated with and reviewed by the Department staff. There are no expected debris or siltation concerns as a result of the project. The more persuasive evidence supports a finding that over the long term, the project is expected to have a beneficial effect on water quality. By filling the dredge hole and providing habitat for seagrass, mangroves, and oysters, the project will provide net improvement to water quality. The requirements of the rule have been met. Paragraph (1)(f) requires that the applicant provide reasonable assurance that the activities will not "cause secondary impacts to the water resources." More detailed criteria for consideration are found in BOR Subsection 4.2.7. The County has provided reasonable assurance that through best management practices, it will control turbidity. Also, Specific Conditions in the proposed permit require that water quality monitoring be conducted throughout the process. There will be no impacts to upland habitat for aquatic or wetland dependent species. This is because a vertical seawall is located upland of the project site, and no surrounding uplands are available for nesting or denning by aquatic or wetland dependent listed species. A secondary impact evaluation also includes an evaluation of any related activities that might impact historical and archaeological resources. There are, however, no historical or archaeological resources in the area. If resources are uncovered during the project, Draft Permit conditions require notification to the Department of State. Finally, there are no anticipated future activities or future phases on the project to be considered. Rule 40E-4.301(1)(i) requires that the applicant provide reasonable assurance that the project "will be capable, based on generally accepted engineering and scientific principles, of being performed and of functioning as proposed." Trump and Flagler contend that the project cannot be constructed and successfully operated as proposed. Trump's expert witness, Joseph Pike, testified that there were ambiguities and conflicts within the plan drawings that would require changes upon build-out; either fill will be placed outside of the fill area, or the mangrove islands will be smaller than depicted. Mr. Pike also voiced concerns that a 4:1 slope would not be stable and might cause fill to migrate to existing seagrass beds. He further stated that the Snook Island project included 18:1 slopes, and he thought providing rock revetment only at the intertidal zone was insufficient. Mr. Pike acknowledged that he had used 4:1 slopes in lake projects; however, in a tidal project involving fill placement, he opined that a 4:1 slope was likely to "relax." He did not do calculations about what slope might hold and admitted that prior experience using similar slopes with the same type of fill might change his opinion. Finally, Mr. Pike noted that a portion of the dredge hole would not be filled and concluded that the project would not fully cap the muck. Trump's biologist, James Goldasitch, speculated that the water flow changes would cause sediment deposition on existing seagrass beds, possibly causing the seagrasses to die. He admitted, however, that the County's plans called for the creation of 3.44 acres of seagrass and did not know the amount of habitat created compared to the amount of habitat he anticipated being affected. The Department's engineer, Jack Wu, approved the hydrologic aspects of the County's plan, but Mr. Goldasitch speculated that Mr. Wu was more focused on shoreline stability than on depositional forces. Mr. Goldasitch never actually spoke to Mr. Wu regarding his analysis, and Mr. Wu's memorandum refers not only to engineering and construction aspects of the proposal but also to the criteria in Rules 40E-4.301 and 40E-4.302. Mr. Goldasitch believed the County's boardwalk will impact the seagrass beds by blocking sunlight, but acknowledged that the Draft Permit required the boardwalk to be elevated and portions to be grated. Both the Florida Fish and Wildlife Conservation Commission and the Department's expert witness concluded that the permit conditions for constructing the boardwalk, which are common, eliminated impacts to seagrass. Mr. Goldasitch further opined that the 4:1 slope might slump, but then deferred to the opinion of a registered engineer on this type of engineering matter. The County presented its professional engineer, Clint Thomas, who worked on the project design. Mr. Thomas explained that permit drawings are not intended to be construction-level in detail, but are merely intended to provide sufficient detail for the regulator to understand the project within the 8 and 1/2 by 11-inch paper format required by the Department. The County will ultimately prepare permit-level, construction-level, and as-built drawings. Permit conditions also require a pre-construction meeting. No fill will be placed outside the area designated for fill, and the 4:1 slope will start at the outer boundary of the designated fill area until it reaches the specified elevation. Mr. Thomas acknowledged that the plan view drawings depict a mangrove island too close to the western project boundary, but stated that the mangrove island would simply be placed farther to the east during the construction-level plan process. Islands will become smaller islands, but will not be relocated, and in no event will the fill area expand; the fill boundary is a very strict limit. There is no evidence that the County has ever violated a fill boundary established in a permit. The 4:1 slope was based on the type of fill proposed for the project and to maximize project features. Mr. Thomas has successfully used 4:1 slopes with non-compacted fill in the Lagoon, both at Snook Island in its as-built state and at other projects. The islands at Snook Island are similar to those proposed. Other areas in the Lagoon have held slopes steeper than 4:1 with the same type of fill. Therefore, Mr. Thomas opined the 4:1 slope would hold. In rendering this opinion, he explained that the currents in the project vicinity are only around 1.2 knots. Because currents slow near the bottom, the 4:1 slope for the seagrass elevations on the bottom will not de- stabilize. Mr. Thomas addressed the contention that a change in water flow velocity would cause sediment to deposit on existing seagrass. The oyster reefs are rubble structures that allow the water to flow through. If any sediment flows through, it will deposit on the north side of the oyster bar, rather than on the seagrass beds. Given these considerations, the evidence supports a finding that the project will function as proposed. Finally, paragraph (1)(j) requires that the County provide reasonable assurance that it has the financial, legal, and administrative capability to ensure that the activity will be undertaken in accordance with the terms and conditions of the permit. The evidence supports a finding that the County has complied with this requirement. In summary, the evidence supports a finding that the County has given reasonable assurance that the project satisfies the criteria in Rule 40E-4.301. b. Rule 40E-4.302 In addition to the conditions of Rule 40E-4.301, the County must provide reasonable assurance that the construction of the proposed project will not be contrary to the public interest. See Fla. Admin. Code R. 40E-4.302(1)(a)1.-7. Rule 40E-4.302(1)(a)1. requires that the Department consider whether the activity will adversely affect the public health, safety, or welfare or the property of others. Trump first contends that the project will increase the mosquito population. The evidence shows, however, that the mangroves will be placed below the mean high water mark and therefore no increase in mosquitoes should occur. Also, the design of the project, coupled with the local mosquito control program, should ensure that there will be no increase in mosquito population or a risk to the public health. Trump also raised the issue of an increase in trash along the boardwalk area or in the newly-created mangrove islands. The County presented evidence that there will be appropriate trash receptacles in the area as well as regular garbage collection. In terms of safety, navigation markers are included as a part of the project for safe boating by the public. The County consulted with the United States Coast Guard regarding navigation issues. Further, the project will not cause flooding on the property of others or cause an environmental impact on other property. Although a number of Trump residents expressed sincere and well-intended concerns about the project impacting the value of their condominiums (mainly due to a loss of view), BOR Subsection 4.2.3.1(d) provides that the "[Department] will not consider impacts to property values or taxes." Rule 40E-4.302(1)(a)2. requires that the Department consider whether the activity will adversely affect the conservation of fish and wildlife, including endangered or threatened species, or their habitats. Subparagraph 4. of the same rule requires that the Department consider whether the activity will adversely affect the fishing or recreational value or marine productivity in the vicinity of the activity. The proposed activity is a restoration project for the creation of seagrass and mangrove habitats. As such, it is beneficial to the conservation of fish and wildlife and is expected to increase the biotic life in the project area. Besides providing additional habitat for fish and wildlife, the project will add to the marine productivity in the area. In terms of recreational opportunities, the project is expected to be a destination for boating, kayaking, fishing, and birdwatching. The Florida Fish and Wildlife Conservation Commission has also recommended issuance of the permit with the standard manatee condition for in-water work. This recommendation has been incorporated as Specific Conditions 23 through 25 Rule 40E-4.301(1)(a)3. requires that the Department consider whether the activity will adversely affect navigation and the flow of water, or cause harmful erosion or shoaling. The nearest navigation channel is the ICW. The project is located outside of that area. Subsection 4.2.3.3 of the BOR provides additional guidance on the evaluation of impacts of this nature. Paragraph (a) of that subsection provides that, in evaluating a proposed activity, the Department "will consider the current navigational uses of the surface waters and will not speculate on uses which may occur in the future." Trump residents indicated that in the project area persons are now picked up off the seawall and then travel to the ICW. Access to the seawall is possible from the east and south, although existing shoals currently limit the approach from the south. Large boats do not use the area because of shoals. In general, "[t]here's not a whole lot of boating activity in the project area." The parties agree that if the project is constructed as designed, boats will not be able to travel directly out from the seawall in front on Trump or Flagler to the ICW, as they now do. However, navigation in the area will still be available, although not as convenient as before. As to water flow, shoaling, and erosion, the more persuasive evidence supports a finding that the 4:1 slope will be stable and will not cause fill to migrate outside of the boundaries of the project into existing seagrass beds. The tidal flow will continue through the area after construction without sediment deposition into existing seagrass beds or destabilizing the 4:1 slope. There will be no shoaling or erosion. Finally, the project will be permanent and there are no significant historical and archaeological resources in the area. See Fla. Admin. Code R. 40E-4.302(1)(a)5. and 6. In summary, the evidence supports a finding that the County's proposal is neutral as to whether the activity will adversely affect the public health, safety, welfare, or the property of others; that the County's proposal is neutral with respect to navigation, erosion and shoaling, and water flow, as well as to historical and archaeological concerns; and that the County's proposal is positive with respect to the conservation of fish and wildlife, recreational values and marine productivity, permanency, and current values and functions. When these factors are weighed and balanced, the project is not contrary to the public interest and qualifies for an ERP. D. Proprietary Authorization Chapter 18-21 applies to requests for authorization to use sovereign submerged lands. The management policies, standards, and criteria used to determine whether to approve or deny a request are found in Rule 18-21.004. In making its review, the Department reviews the rule in its entirety; it also looks at the forms of authorization (e.g., letters of consent, leases, deeds, or easement) to determine the most appropriate form of authorization for an activity. Trump and Flagler have raised contentions regarding the proprietary authorization, including whether the application should have been treated as one of heightened public concern, whether the proper form of authorization has been used, and whether their riparian rights are unreasonably infringed upon by the project. Heightened Public Concern Rule 18-21.0051 provides for the delegation of review and decision-making authority to the Department for the use of sovereign submerged lands, with the following exception found in subsection (4) of the rule: (4) The delegations set forth in subsection (2) are not applicable to a specific application for a request to use sovereign submerged lands under Chapter 253 or 258, F.S., where one or more members of the Board, the Department, or the appropriate water management district determines that such application is reasonably expected to result in a heightened public concern, because of its potential effect on the environment, natural resources, or controversial nature or location. On March 13, 2008, the Department's West Palm Beach District Office sent a "heightened public concern [HPC]) memo" to the Department's review panel in Tallahassee,3 seeking guidance as to whether the project required review by the Board of Trustees under the above-cited rule. The Department emailed the County on March 14, 2008, stating that the project would be elevated to the Board of Trustees for review to approve the entire Lagoon Management Plan. The County asked for reconsideration, concerned over timing restraints on grant opportunities. This concern is based on the fact that the County will receive grant monies to assist in the construction of the project and must have regulatory approval by a date certain in order to secure those funds. A second HPC memorandum was sent to the review panel on April 22, 2008. Part of the interim decision to elevate the application to the Board of Trustees concerned the boardwalk connection to the City of West Palm Beach's existing seawall. The City of West Palm Beach is the upland owner of the seawall, sidewalk, and Flagler Drive. On June 9, 2008, the Mayor of West Palm Beach sent a letter to the Department stating that the City "fully supports" the proposed activity, and that the County and the City collaborated on the design of the project, held joint public meetings, and produced a project video. See Department Exhibit Trump and Flagler argue that under the City Charter, the Mayor cannot unilaterally bind the local government to allow structures to be built on City property. Assuming this is true, one of the remaining conditions for the County to initiate the project is to obtain a "letter of concurrence" from the City of West Palm Beach authorizing the County to connect the boardwalk to the seawall. Therefore, the review panel ultimately concluded that the application could be reviewed at the staff level and did not require Board of Trustees review. The evidence at hearing did not establish that the application was one of heightened public concern, given the limited size of the project, its location, and the net benefit to both environmental and natural resources. Compare Brown, et al. v. South Fla. Water Mgmt. Dist., et al., DOAH Case No. 04-0476, 2004 Fla. ENV LEXIS 112 (DOAH Aug. 2, 2004, SFWMD Sept. 8, 2004). Therefore, review by the Board of Trustees was not required. Form of Authorization Trump and Flagler contend that an easement is required by the County, rather than a consent of use. The standard for obtaining an easement is more stringent than a consent of use, and an easement offers a greater interest in sovereign lands. Rule 18-21.005(1) provides the general policy direction for determining the appropriate form of authorization and reads in relevant part as follows: It is the intent of the Board that the form of authorization shall grant the least amount of interest in the sovereignty submerged lands necessary for the activity. For activities not specifically listed, the Board will consider the extent of interest needed and the nature of the proposed activity to determine which form of authorization is appropriate. This rule requires that the Department should apply the lowest and least restrictive form of authorization. Trump and Flagler argue that the County's project constitutes a spoil disposal site under Rule 18-21.005(1)(f)8., a public water management project other than public channels under Rule 18-21.005(1)(f)10., or a management activity which includes "permanent preemption by structures or exclusion of the general public," as described in Rule 18-21.005(1)(f)11. Each of these activities requires an easement rather than a letter of consent in order to use sovereign submerged lands. The evidence shows that the County's project is not a spoil disposal site. Also, it is not primarily a public water management project as there is no evidence that the project relates in any way to flood control, water storage or supply, or conservation of water. Likewise, there is no evidence indicating that the activities will prevent access by the public by exclusion. Even though many of the features (structures) of the project will be permanent, the project is intended to generally increase public access to water resources, as well as the islands, boardwalk, and kiosks. Besides raising the issue of heightened public concern, the second HPC Memorandum dated April 22, 2008, sought guidance as to whether the project required a consent of use or an easement. The review panel concluded that the project qualified for a consent of use, rather than an easement under Rule 18- 21.005(1)(f), because the County's project most closely fits the definition in Rule 18-21.005(1)(c)15. That rule provides that if the proposed activity involves "[h]abitat restoration, enhancement, or permitted mitigation activities without permanent preemption by structures or exclusion of the general public," an applicant may use sovereign submerged lands with a consent of use. Because the County's project increases public access not only to water resources in the Lagoon but also to the permanent structures being built, it more closely falls within the type of activity described in Rule 18-21.005(1)(c)15. Notably, all of the County's restoration projects in the Lagoon have been previously authorized through a consent of use. Finally, the review panel concluded that the project did not fall under Rule 18-21.005(1)(f)16., which requires an easement for environmental management activities that include "permanent preemption by structures or exclusion of the general public" because of the rule's focus on the exclusion of the general public. Riparian Rights The parties have stipulated, for the purpose of this proceeding, that Trump and Flagler have riparian rights, including view, ingress/egress, fishing, boating, swimming, and the qualified right to apply for a dock, that should be considered. Trump and Flagler contend that their right to wharf out (build a dock) from the seawall, ingress/egress from navigable water, and view will be unreasonably infringed upon if the application is approved. See Fla. Admin. Code R. 18- 21.004(3)(a)("[n]one of the provisions of this rule shall be implemented in a manner that would unreasonably infringe upon the traditional, common law riparian rights, as defined in Section 253.141, F.S., of upland property owners adjacent to sovereignty submerged lands"). For the reasons given below, the greater weight of evidence establishes that none of these riparian rights will be unreasonably infringed upon. Currently, while access is possible from the east and the southern approaches, existing shoals limit the southern approach. The boardwalk will further limit boat traffic on the south end, and boats would not be able to cross over the islands. Boat traffic will still be able to access the cove from the north end, and the restoration project will create a boating destination. Trump witness Pike opined that the County's project would negatively affect navigation between the upland parcels and the ICW because the project would eliminate the eastern and southern approaches and leave only the northern approach, which could not be used by both parcels fully. The County's expert, Dr. Nicholas De Gennarro, testified that, during his site visits, he observed boat traffic waiting for the drawbridges using the east side of the ICW away from the project site. Dr. De Gennarro noted that several existing structures are closer to the ICW than the proposed County project, which lies 220 feet away from the ICW. Thus, Dr. De Gennarro concluded that the project would not impact navigation in the ICW. With respect to ingress/egress, Dr. De Gennarro acknowledged that access to the Trump and Flagler properties would not be available from the southern and eastern approaches, but concluded that the restriction represented nothing more than an inconvenience. He noted that the southern approach was already a less preferable approach due to existing shoals. At present, there is very little boating in the area outside of special events. While the project would limit the use of boats directly over the one and one-half acres of mangrove islands, the project will provide a boating destination. Further, both the City docks to the north of the site and the temporary docks in front of Flagler's property –- both used for special events –- will still be available under the County's proposal. There is no swimming and very little fishing in the area because of the degraded conditions caused by the dredge hole. Accordingly, while the project will fill a small portion of water currently available, but not used, for swimming, it will greatly enhance swimming by providing a destination for swimmers. The mangroves planned for the intertidal islands are likely to reach a height of fifteen feet and will be interspersed with spartina. The seawall is located six feet above the water line, making a person's view at eye level already several feet above the water. Trump and Flagler's buildings are built at even higher elevations. Therefore, the mangroves will not substantially obscure the view from either property, even at street level where the view is already partially obscured by existing landscaping. The Lagoon is approximately 2,000 feet across. From north to south around one hundred acres of water can now be viewed from the vicinity. Since the intertidal islands only comprise one and one-half acres, the overall impact to the view of the water body is very small. The mangroves in the planters extending out from the seawall will be trimmed to one foot above the seawall; the County requested the condition and committed at hearing to trimming the mangroves if the City of West Palm Beach does not. County photographs show Trump and Flagler's present view of the water body and demonstrate the comparatively small percentage of the view affected by the one and one-half acres of mangrove islands. See County Exhibits 133a-e and 134a-d. The photographs also demonstrated that sizeable palm trees are already part of the existing view. Additionally, the County photographs depicted the small impact that trimmed mangrove planters would have on the view. The area obstructed by the mangrove islands and seagrass is negligible compared to the expanse of the existing view. Trump and Flagler offered no evidence to contradict the County's analysis regarding the scope of the impact on the view. Trump residents Dale McNulty, Dean Goodman, and Charles Lemoine testified that they personally would not want to view mangrove islands regardless of tree size or the size of the islands. Understandably, after years of unfettered view and an open expanse of water, they are opposed to any type of project in this area of the Lagoon. However, Mr. Goodman acknowledged that he would still be able to see the Town of Palm Beach from his unit. The evidence supports a finding that while the project will undoubtedly alter the view of the water from both Trump and Flagler's property, the impact on view is not so significant as to constitute an unreasonable infringement of their riparian rights. Mr. Lemoine stated that he had a forty-foot trawler that he would like to dock in front of his property. He currently docks the boat at a marina twenty miles north of the Trump property. He prefers to bring his boat in stern first and enter slips oriented north to south. He indicated that he can drive his boat in five feet of water, but prefers six feet; however, he also testified that he has brought his boat directly up to the bulkhead in front of Trump, which is approximately a two- or three-foot depth. The witness has seen sailboats and other boats moored near the bulkhead over extended timeframes. Mr. Lemoine speculated that Trump might seek a dock, either alone or in conjunction with Flagler, but admitted that Trump has never applied for a dock permit. He stated that Trump has had discussions about the possibility of a dock over the last fifteen years and speculated that a dock plan might include anything from the purchase/lease of the City docks to a lease of Trump's riparian interests to a third party. By contrast, Trump resident and former Board member Dean Goodman indicated "the idea was to provide an amenity [for] a number of people that are in the building that are boaters." Mr. Goodman stated that he hoped to be able to have a boat in front of the building someday, but did not own a boat in Florida. Association president Dale McNulty explained that, while informal discussions have occurred regarding the possibility of a dock, no official action had been taken. Mr. McNulty characterized the dock plans as being "sort of in the land of wishful thinking." Mr. Pike, while acknowledging that both parcels would still be able to design a dock for their property, opined that the County's project unreasonably limited the size and configuration of the docks possible. Mr. Pike initially admitted that a safe navigation depth for a forty-foot boat, or even a sailboat, was four feet below mean low water (MLW), but stated that he would prefer to design a dock with an additional two-to- three feet of water below the four-foot draft to avoid propeller damage. However, Mr. Pike conceded that he has designed docks for boats in four feet below MLW and ultimately based his own calculations on an assumption of a four-foot draft and one-foot cushion, or five feet below MLW. Mr. Pike also opined that a north-south alignment for boat slips was a preferred slip orientation. Given the bathymetry in the area and the documented seagrasses, Mr. Pike estimated that twenty slips could be designed for the Flagler property, rather than the thirty-four slips provided for by the County Manatee Protection Plan. He thought that a design might accommodate thirty to thirty-two slips for Trump, rather than the forty-slips provided for by the County Manatee Protection Plan. Based on the limitation on number of slips and configurations, the witness opined that the County's project would unreasonably interfere with Trump and Flagler's ability to design a dock. He admitted, though, that the numbers derived from the County Manatee Protection Plan represent a maximum number, rather than a specified or guaranteed number. He further admitted that other agency limitations may further restrict Trump and Flagler's right to dockage. Without a permit application or plan from Trump or Flagler, County witness Robbins concluded that the most reasonable assumption was an owner-oriented facility designed for the building owners/tenants. The County introduced a graphic illustrating areas available for dock construction, with sufficient depth for 35- to 40-foot boats (-6 feet NGVD) and with no seagrasses present. Rule 18-21.004(4)(b)2. limits ownership-oriented facilities generally to forty square feet for each foot of riparian shoreline, giving Trump the ability to apply for a dock that preempted a maximum of 16,000 square feet, and Flagler a maximum of 14,000 square feet. Under the County Manatee Protection Plan, Trump would be limited to forty slips; Flagler would have the potential for thirty-four slips. Mr. Robbins testified that, in his experience, a minus five MLW is a common depth for docks, but that elevations as shallow as a minus four MLW could be used depending on the type of boats and the dock configuration. Mr. Robbins explained that, even with the County's project in place and factoring in the other limitations, Trump would still have 61,842 square feet of potential space within which to design a dock. Flagler would still have 41,481 square feet of potential space, even considering the need to retain a path for ingress and egress from the Trump parcel. A more detailed analysis of the seagrasses might make more square footage available for dock construction. Dr. De Gennarro also evaluated whether a dock could be designed to serve Trump and Flagler's parcels. The vessel owner statistics for the County indicate that at least ninety-five percent of the boats registered in the County are thirty-nine feet or less; consequently, Dr. De Gennarro focused on boats forty feet or less. Dr. De Gennarro considered the water depths and the existence of subaquatic vegetations and concluded that the graphic presented by Mr. Robbins was conservative, but still provided adequate space for both Trump and Flagler to construct appropriate dockage, allowing thirty-eight boats for Trump and thirty-two for Flagler of varying size. However, Dr. De Gennarro concluded that a dock design of forty slips for each would also be possible, depending on the size of the boats. Dr. De Gennarro proposed that a single, double-loaded parallel dock design would be a good layout for a potential docking facility in front of both Trump and Flagler's property that would be protected by the County's proposed islands, provide sufficient water depths, and provide an attractive facility. He specified, however, that the single, double-loaded parallel dock design was simply one of "many" that might work in the given space. Dr. De Gennarro explained that the existing dredge hole would not be a preferable location for either a mooring field or a dock because the deep muck-bottom would drive up the costs for either type of facility. Accordingly, Dr. De Gennarro concluded that the County's project would not foreclose or even substantially restrict the ability to locate a dock in front of Trump and Flagler’s property. The more persuasive evidence supports a finding that neither the right of ingress/egress nor the right to boat in the vicinity is unreasonably infringed upon by the County's project. Trump and Flagler will continue to have reasonable access to navigation. The northerly approach preserved by the County's project will allow for boat traffic to safely navigate in the area. While the southerly and easterly approaches are eliminated by the County's plan, the evidence indicates that the two approaches were less preferable than the northerly approach because of the presence of shoals. Based on the above considerations, the County's project will not unreasonably infringe upon Trump or Flagler's qualified right to a dock. The fact that the project might preclude the design and permitting of a dock that would host very large vessels does not mean that Trump and Flagler's rights regarding docking have been unreasonably infringed. The evidence shows that substantial docking facilities of multiple configurations are still possible even if the County's project is approved. In summary, the County's application for proprietary authorization should be approved. Other Contentions All other contentions raised by Trump and Flagler have been considered and are found to be without merit.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department enter a final order approving the County's application for a consolidated ERP and consent to use sovereignty submerged lands. DONE AND ENTERED this 24th day of September, 2009, in Tallahassee, Leon County, Florida. DONALD R. ALEXANDER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 24th day of September, 2009.
Findings Of Fact Application No. 75-00196 is a request by the Standard Sand and Silica Company, for a consumptive water use permit. This application is for an existing use involving withdrawal from one well. The application seeks an average daily withdrawal of 1.6925 million gallons per day and a maximum daily withdrawal of 2.16 million gallons per day. The sought-for withdrawal will not exceed the water crop as defined by the district, with the withdrawal consumptively using only 35 percent of the water crop. The water will be used on site for the washing of sand. Mr. Clifton W. Golden is an adjacent landowner who testified that he was afraid of salt water intrusion and that a sink hole might develop because of the vast quantities of water taken from the aquifer by the applicant. He does not feel that the issuance of a permit would be consistent with the public interest. He presented no hydrological data showing that issuance of the permit would adversely affect his property. Mary Fausteen Thompson is a property owner adjacent to the site from which the water will be taken. She has had problems in the past with Standard Sand and Silica Company apparently discharging excess water on to her property. She thinks those problems may be occurring again, causing some of her property to be flooded. The sought-for consumptive use will not significantly induce salt water intrusion. Except as otherwise noted in the findings of fact, none of the conditions set forth in Subsection 16J-2.11(2), (3) or (4), F.A.C., will be violated. Several letters of objections have been received in addition to the objectors noted above. The Southwest Florida Water Management District's staff recommends issuance of the subject permit in the amounts requested with the following conditions: That no off-site runoff be permitted by the applicant. That flowmeters be placed on the well and quarterly reports made to the district.
Recommendation It is hereby RECOMMENDED that Application No. 75-00196 be granted with the conditions set forth in paragraph 7 above. ENTERED this 28th day of May, 1976, in Tallahassee, Florida. CHRIS H. BENTLEY, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Jay T. Ahern, Esquire Southwest Florida Water Management District P.O. Box 457 Brooksville, Florida 33512 Eugene W. Harris Standard Sand and Silica Co. P.O. Box 35 Davenport, Florida 33837 Mrs. Mary Fausteen Thompson Box 82-C, Evans Road Polk City, Florida Mr. Clifton W. Golden 800 Oriole Drive Virginia Beach, Florida 23451 Mr. John C. Jones Executive Director Florida Wildlife Federation 4080 North Haverhill Road West Palm Beach, Florida 33407
Findings Of Fact The first of these difficulties bears primarily on my rulings on the exceptions to the findings of fact. The petitioners urge that they need not attach a transcript to support their exceptions to the findings. The petitioners' assertion is unsound as a general proposition. The law is clear that without a transcript there is no basis for overturning a hearing officer's findings. The Department cannot substitute its interpretation of the facts unless a review of the whole record shows that the findings made by the hearing officer are not supported by competent and substantial evidence. See, e.g., Tuveson v. Florida Governor's Council on Indian Affairs, Inc., 495 So.2d 790, 793 (Fla. 1st DCA 1986), rev. denied, 504 So.2d 767 (Fla. 1987). Moreover, Rule 17-103.200(l) of the Florida Administrative Code specifically requires that ?[a]ny exception disputing a finding of fact . . . be accompanied by a complete transcript of the hearing." The Department therefore must "reject exceptions not supported by a complete transcript." Chipola Basin Protective Group, Inc. v. Florida Department of Environmental Regulation, 11 F.A.L.R. 467, 470-71 (Fla. DER 1988); see Booker Creek Preservation, Inc. v. Florida Department of Environmental Regulation, 415 So.2d 750 (Fla. 1st DCA 1982) (upholding nonrule policy of the Department that exceptions not accompanied by complete transcript must be dismissed). In contrast to the facts in Chipola Basin, there is no transcript independently available to the Department to obviate the effect of the failure of the petitioners to file one. Thus, the rule against overturning findings without a transcript compels me to As for the late filing of two sets of exceptions and the propriety of the filing of the third set of exceptions, I shall rule on those legal issues in the rulings on exceptions to conclusions of law, below. EXCEPTIONS TO CONCLUSIONS OF LAW First, I must reject two sets of the petitioners' exceptions in their entirety for untimely filing. Rule 17-103.200(I) of the Florida Administrative Code requires the rejection of any exceptions "not filed (received) in the Office of General Counsel within the 15 days" after the "the date of filing of a Recommended Order with the Clerk of DOAH," the Division of Administrative Hearings. The hearing officer filed the recommended order in this proceeding with the Clerk of DOAH on August 5, 1991. August 20, 1991, was the deadline for filing exceptions. Petitioner Hobdy filed his exceptions a day later. Petitioner Winselmann also filed his exceptions a day late. The language of the rule is specific, clear, and mandatory. I therefore reject the exceptions of Hobdy and Winselmann for failure to comply with this rule. The exceptions filed by a law firm for Residents were timely but are subject to a motion filed by the Applicant to strike all of the petitioners' exceptions. The motion rests on two grounds, the lack of a transcript and the filing of three sets of exceptions (rather than two) by the petitioners. The lack of a transcript is grounds for rejecting exceptions to findings of fact, but not for striking exceptions to conclusions of law. Since the exceptions for Residents except only to conclusions of law, they cannot be struck on this first ground. As to the exceptions of Hobdy and Winselmann, this ground for the motion is moot, because their exceptions have been rejected for late filing. As for the second ground of the motion, the filing of three sets of exceptions, the Applicant has no objection to the filing of exceptions by Hobdy (for himself) or Winselmann (for Residents, the motion alleges) but does object to the additional filing of exceptions for Residents by a law firm that made no previous appearance in this proceeding. I note that Winselmann was not a separate party to this proceeding. He never filed a petition for a hearing in his own name. Instead, he was a member of Residents whom the hearing officer permitted to appear at the hearing "pro se" and who later filed a proposed recommended order noting that he and Petitioner Hobdy had appeared pro se "on behalf of the residents." Petitioner Winselmann filed his exceptions in his own name but wrote them as though representing Residents as a group, referring to "[o]ur property," "[o]ur navigational abilities," "[o]ur recreational values," and "[o]ur canal," repeatedly speaking for the residents as "we." The record does not show whether the hearing officer ever conducted the inquiry required under rule 221-6.008 to determine the adequacy of the qualifications of Winselmann to represent Petitioner Residents. The recommended order refers to Winselmann's appearance only as "pro se," as though he represented only himself. In the absence of the hearing officer's express approval of Winselmann as a qualified representative of Residents, I must conclude that, whatever his subjective intent might be, Winselmann did not legally represent Residents at the hearing or in filing the exceptions. I therefore deny the motion to strike the petitioners' exceptions. In passing, I also note that because no "attorney or other qualified representative (approved by the presiding officer)" previously represented Residents, there was no need for the law firm filing the exceptions for Residents to file a prior notice of appearance. Rule 17-103.020(5) requires such a filing only by a "successor or associated attorney or other qualified representative." Rule 17-103.020(4) makes the filing of the first pleading the notice of appearance, in effect, for the first such representative. Accordingly, I must rule on Residents' exceptions to the conclusions of law. Those exceptions focus on the issue whether the hearing officer erred by recommending an award of attorney's fees against the petitioners. Residents asserts that the hearing officer used the wrong standard in reaching that recommendation. Urging that the correct standard is participation in the proceeding "for an improper purpose," under section 120.59(6) of the Florida Statutes, Residents objects to the hearing officer's reliance on the language in section 57.105 of the Florida Statutes that makes the lack of a justiciable issue of law or fact the basis for an award of attorney's fees. Residents argues that the record evinces at most incompetent representation, rather than any improper purpose, that its members believed in good faith that the project would affect navigation, and that this question of the project's impact on navigation was a justiciable issue of fact, even if the applicable standard for an award of fees is the absence of such an issue of fact or law. Respondent Dolphins Plus has responded to this set of exceptions. The response equates the standard of frivolous participation with that of the lack of any justiciable issue of law or fact, asserts that impact on navigation was not an issue because no evidence was ever presented tending to prove such an impact, and summarizes events at the hearing, including the hearing officer's patient attempts to explain procedural rules and otherwise guide the petitioners. In the absence of a transcript, of course, such a summary of the hearing is simply outside the record before me, and I cannot consider it. The question of the appropriate standard for an award of attorney's fees under section 120.59(6) is not difficult. The statute makes such an award depend on the nonprevailing party's participation in the proceeding for an improper purpose. Section 120.59(6)(b), Florida Statutes (1989). The statutory definition of "improper purpose" lists four meanings, including "frivolous purpose." This phrase employs words of plain meaning, requiring no special rules of statutory construction to resolve an ambiguity. Although the entry for "frivolous" in Webster's New Collegiate Dictionary includes the subjective definitions "lacking in seriousness: irresponsibly self-indulgent," and "marked by unbecoming levity," the settled meaning of "frivolous" in the law is the third definition given, that "of little weight or importance." See Webster's New Colleciate Dictionary 461 (1977 ed.); Black's Law Dictionary 601 (5th ed. 1979); cf. Myers v. Hawkins, 362 So.2d 926, 930 (Fla. 1978) (to determine plain meaning of constitutional provision, court begins with dictionary definitions but ultimately chooses meaning for each "term in light of the primary purpose for which it has been adopted"). This third definition is the meaning that the court accepted for "frivolous" in Mercedes Lighting & Electrical Supply, Inc. v. State Department of General Services, 560 So.2d 272 (Fla. 1st DCA 1990), construing section 120.59(6) of the Florida Statutes. Indeed, numerous cases in Florida have used interchangably the terms "frivolous" and "lacking any justiciable issue of law or fact." See, e.q., Marexcelso Compania Naviera, S.A. v. Florida National Bank, 533 So.2d 805, 805 (Fla. 4th DCA 1988); Schwartz v. W-K Partners, 530 So.2d 456, 457 (Fla. 5th DCA 1988). Thus, the hearing officer did not err by equating frivolousness with a lack of any justiciable issue of law or fact. Yet these same cases and others clarify that the frivolousness that will justify an award of fees must mark the claim from its inception. A court will not award fees against a litigant whose initial (or amended) claim was nonfrivolous, "even though at some point in the course of litigation it becomes apparent that there no longer remains any justiciable issue of law or fact." Id.; see also State Department of Health & Rehabilitative Services v. Thompson, 552 So.2d 318, 319 (Fla. 2d DCA 1989); Marexcelso, 533 So.2d at 805; Schatz v. Wenaas, 510 So.2d 1125, 1126 (Fla. 2d DCA 1987). Thus, the crux of the issue is not solely whether the petitioners failed to present any evidence at the hearing so as to show any justiciable issue of law or fact, but whether such failure was accompanied by a failure to raise such an issue in the first place. Despite the hearing officer's "finding" here that "there was a complete absence of a justiciable issue of law or fact," the question of justiciability is one of law, and the purported finding is really a conclusion of law. Under section 120.57(1)(b)10 of the Florida Statutes, I may reject or modify such a conclusion. Having reviewed the two petitions and the photographs attached to the petition for Residents, I must conclude that, however unartfully, both petitions raised at least one justiciable issue of fact, concerning the putative effect of the project on navigation, under section 403.918(2) of the Florida Statutes. In pertinent part, the petition for Residents alleges that the fence would "severely impact [the petitioner residents') use of the canal" because its removal of part of "the canal turning basin" would restrict them to using only "small boats which can turn around within the canal itself." Petition of Residents para. 3. Although it is true that "navigation" as used in section 403.918(2) "is primarily associated with the use of publicly used shipping lanes or channels," Clarke v. Melton, 12 F.A.L.R. 4946, 4952 (Fla. DER 1990), the Department does consider the impacts of small structures such as docks on the navigability of small boats, in weighing the impact on navigation of projects under section 403.918(2). See Riverside Club Condominium Association, Inc. v. Adventure Construction & Canvas, Inc., 9 F.A.L.R. 6207 (Fla. DER 1987); Ryan v. Spang, 8 F.A.L.R. 4288 (Fla. DER 1986). The petition for Hobdy raises this same issue, though described only as an effect on Hobdy's own use of his boat. In addition, Hobdy's petition questions whether the housing of large mammals in the stranding pen would adversely affect water quality in the canal. These two questions are "not so free of doubt as to render [each] . . . claim frivolous," for purposes of awarding a fee. See Scott v. Durlinc, 471 So.2d 658, 659 (Fla. 2d DCA (1985). Under Schwartz and other cases cited above, the failure of Residents to support this allegation at the hearing, at least on the basis of the record before me, does not warrant an award of fees. Reinforcing this conclusion is an earlier ruling of the hearing officer that excluded evidence on this very issue. His order granting the motion to limit issues eliminated the question of impact on navigation before the hearing. His ruling therefore may have contributed to the failure of these petitioners, obviously not expert in administrative procedure, to present competent substantial evidence at the the hearing. Cf. Harbor Estates v. State Department of Environmental Regulation, 12 F.A.L.R. 2392 (Fla. DER 1990) (failure of hearing officer to issue subpoenas contributed to failure of petitioners to produce witnesses at hearing and undercut recommendation to award fees). At the same time, neither of the respondents ever sought to strike the petitions as being filed for an improper purpose (because allegedly lacking any justiciable issue), and the hearing officer never ordered the dismissal of either of the petitions on such basis. For "the orderly conduct of proceedings," the court in Mercedes Lichting suggested such an order "at the earliest stage at which a violation of the statute can be determined," for an award of fees under section 120.57(1)(b)5 (providing for awards of fees for filing any pleading or other paper for an improper purpose). See Mercedes Lighting 560 So.2d at 279. There is no reason not to apply the same general principle to awards under section 120.59(6). Cf. Harvey v. Trans Pac, Inc., 12 F.A.L.R. 4378, 4379 (Fla. DER 1990) (reading the two statutes together in light of this guidance from the court in Mercedes Lighting. That this matter went to hearing without such a motion or order leads me to conclude that the parties and the hearing officer at first thought that one or more of the issues raised in the petitions were justiciable. Despite the apparent ineptness of the petitioners' representation here, there is no direct evidence of improper purpose for the participation of the petitioners. The hearing officer emphasized the petitioners' failure to understand "the applicable law, the proper scope of the formal hearing, and the distinction between argument and evidence." Recommended Order at 15. Petitioners attempted to present evidence at the hearing, including the testimony of witnesses, but the hearing officer found none of the evidence relevant or material. The Florida Administrative Procedure Act liberally expands public access to agency action, taking the risk that lay representation will not always be effective. See The Florida Bar v. Moses, 380 So.2d 412, 415 (Fla. 1980). Although section 120.59(6) sets a limit on such access, it is far from clear that mere ignorance or ineffective representation is tantamount to participation for an improper purpose. See Harvey, 12 F.A.L.R. at 4379-80. In this context, and in the absence of direct evidence of an improper purpose, I am reluctant to make "the legal inference that would supply the connection between acts demonstrating incompetent representation by a party's lay representative and a finding of participation by that party for an improper purpose within the meaning of Section 120.59(6), Florida Statutes." See Harbor Estates, 12 F.A.L.R. at 2398. In accordance with section 120.57(1)(b)10 of the Florida Statutes, I accept the hearing officer's findings of fact in this matter, except for the conclusion of law (mislabeled a finding) that there was no justiciable issue of law or fact. For all the reasons given above, I reject that conclusion and the recommendation of an award of fees and costs to Respondent Dolphins Plus. As for the motion by Petitioner Hobdy for attorney's fees costs, on the ground that the attorney for Dolphins Plus presented a frivolous case and filed a frivolous motion for attorney's fees, Dolphins Plus is the prevailing party in these proceedings. Its case was not frivolous. Although it did not prevail in moving for fees and costs, its motion for such fees was not frivolous. The hearing officer recommended an award of such fees, and the issue merited serious consideration in this final order. The motion by Hobdy for fees is without merit. MISCELLANEOUS SUPPLEMENTARY RULINGS On two occasions, October 7 and October 8, 1991, the Department received correspondence from Petitioner Winselmann purporting to offer further argument in regard to the issues before me. These ex parte communications have been disregarded in the preparation of this Final Order, and to the extent they could be viewed as unauthorized further exceptions or responses to exceptions, they are sua sponte stricken.
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 on the Merits denying Petitioners' protest of the permit and awarding reasonable attorney's fees and costs in accordance with this Recommended Order. Jurisdiction over the issue of the amount of attorney's fees is retained and shall be determined in a separate formal hearing to be conducted only in the event the parties are unable to agree on the amount of attorney's fees that is reasonable. RECOMMENDED in Tallahassee, Leon County, Florida, this 5th day of August, 1991. DANIEL MANRY Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 5th day of August, 1991.
