Findings Of Fact By joint application to the Respondent Department of Environmental Regulation ("Department") and the Department of the Army, dated February 7, 1979, American Engineering, Inc., as authorized agent for the Petitioner CNC Enterprises, Inc., sought the issuance of a permit to excavate two plugs in an artificial canal system which if removed would connect the canal system to Double Hammock Creek and the Gulf of Mexico. On March 8, 1979, a completeness summary was sent to CNC in care of Clifford Wendell, President of American Engineering, Inc., advising him that the application was incomplete and requiring additional information including aerial photographs, cubic yardage figures for excavation, an additional plan view and vicinity map, a cross-section drawing, a hydrographic survey and reasonable assurances that Rule 17-4.28(3), Florida Administrative Code, would not be violated. The Applicant was also informed that the project was subject to Chapters 253 and 403, Florida Statutes. Following the submission of the additional information, a field appraisal of the site was conducted by DER staff on August 16, 1979. On October 1, 1979, the Department received a letter from Wendell indicating that additional water quality and hydrographic test information had been collected by Conservation Consultants, Inc., a private environmental consulting firm employed by CNC for this project. On November 5, 1979, the Department notified the Applicant's agent of its intent to deny the requested permit. The Department's letter of intent cited as grounds for denial the creation of stagnant areas of water, interference with the conservation of fish, marine life, wildlife and other natural resources, reduction in the capability of habitat to support a well balanced fish and wildlife population and impairment of the management or feasibility of fish and wildlife resources. The intent to deny does not list the absence of a hydrographic survey as a ground for the denial of the application. An informal meeting was held in Tallahassee, Florida, on January 30, 1980. At the meeting it was agreed that Vince Conrad, President of CNC, would be provided a list of consultants by the Department who could provide additional water quality data. A list of consultants was provided by the Department on February 4, 1980. On April 25, 1980, a letter from Wendell was received by the Department which contained a report dated April 21, 1980, prepared and submitted by Drs. & P.M. Dooris and entitled, "An Evaluation of Selected Conditions in the Westport Subdivision Canal System and in Double Hammock Creek, Pasco County, Florida." The report presented certain water quality and physical measurements but did not purport to be a hydrographic survey. The Drs. Dooris were hired by Wendell, as consultants on this project and had been recommended to him by the former Secretary of the Department during an informal meeting in Tampa on this project. The History And Physical Characteristics Of The Artificially Created Canal System The artificial canal system in question was dredged in the early 1960's. It consists of a series of six north/south finger canals connected by a main east/west connector canal to Double Hammock Creek. The Intervenors own homes or property on the finger canals in a subdivision known as Westport Homes, Pasco County, Florida. The plugs or dikes are located at the mouth of canal number 3 (the isolated finger canal) and in the approximate center of the long connecting canal as identified in Petitioner's Exhibit 1. The portion of the long connecting canal west of the plug is navigable and flows directly into Double Hammock Creek, a natural saline body of water which connects directly into the Gulf of Mexico. The main canal east of the plug is perpendicular to and connects directly with three north/south finger canals. Construction on the canals was initiated in the early 1960's by Henry Dingus, the owner of the property prior to CNC. When the Petitioner purchased the property in 1972, the portion of the long connecting canal west of the plug, three finger canals and a portion of the isolated canal had been constructed. In 1972, the Petitioner widened and deepened the isolated finger canal. To accomplish this, the Petitioner totally plugged the connection to the main canal, which had been partially opened via a small drainage system, and pumped water from the isolated canal into the main canal. The Petitioner also constructed the portion of the canal east of the plug and the three finger canals connecting into the east/west canal. The canals east of plug are connected to Double Hammock Creek and the Gulf of Mexico via a mosquito creek or canal. This creek, which is approximately 15 feet wide and 2-3 feet deep, flows through a salt marsh to Double Hammock Creek. It is tidal and produces a range of approximately 1.5 feet in the main canal. With the exception of the isolated finger canal, the system is not actually closed since waters east and west of the plug in the main canal are tidal and connect to waters of the state. The Department's predecessor agency, the Trustees of the Internal Improvement Trust Fund, first became aware of this project in 1973 when the site was inspected by Richard Clutter of the Trustees' staff. Clutter informed Conrad that permits would be needed for work not done in upland areas. At that time no work was being done below the mean high water line and no evidence of dredging to connect the old canals to Double Hammock Creek was present. The, Trustees considered these canals to be upland canals, because it was the Trustee's policy at that time not to extend the mean high water line up such canals. At no time prior to 1975 was Conrad either directed to cease construction or told that a connection to the mosquito canal could not be made. He was repeatedly informed, however, that a permit would be required if any connection to state waters was contemplated. In June of 1976, Department inspectors visited the site and discovered that one of the plugs had been breached. Conrad was notified on July 9, 1976, that the breach was a violation of state law and the rules of the Department. Approximately one year later, the Department again notified Conrad that the plug separating the main canal had been breached. Conrad informed the Department that due to the actions of neighbors who tampered with the structure, he had expended personal funds to restore the dike several times. The Department was apparently unaware until sometime in 1976 that the canal system east of the plug connected to navigable state waters via the mosquito canal. In 1975, the Department did not attempt to halt construction of the canal system since it was relying on its erroneous assumption that the system was "self-contained." Since there is a tidal exchange of waters entering the system on both sides of the plug in the main canal, Petitioner and Intervenors are attempting to connect two existing water bodies which are presently connected directly and indirectly to Double Hammock Creek and the Gulf of Mexico. The Dooris Report And Dissolved Oxygen At the final hearing, the Petitioner presented the expert testimony of Professor Patricia Dooris, Ph.D. and her husband George Dooris, Ph.D., regarding a study they completed on the removal of the plug in the main connecting canal. In the Dooris Report, they defined the problem involved in this proceeding as follows: It is believed by some that the water in the canal system east of the eastern dike is Unacceptable for discharge to Class III waters. The problem, then, is to assess the current condition in the canal system and to determine whether dike removal would be a beneficial or detrimen- tal influence upon the remaining natural environment in the area. (Petitioner's Exhibit 6, at 2-3) The data contained in the Dooris Report and the testimony of the Doorises establish the following conclusions entitled "Expected Consequences of Dike Removal": THOSE AFFECTING THE CANAL SYSTEM Dike removal will enhance the already existing connection between the eastern canal system and Double Hammock Creek. Water from the Creek will have direct access to the entire canal system and will bring about a more uniform distri- bution of dissolved oxygen in the canals, particularly at low tide. Water levels in the eastern canal system will fluctuate normally, encouraging the waterward migration of marginal vegetation on the north bank of the main canal. Additional vegetation will stabilize canal banks and provide habitat for fish and in- vertebrates. The value of allowing near- normal water level fluctuations in any water cannot be over emphasized. The long term stabilization of water levels has proven to result in a degradation of the resource, and it should be avoided. THOSE AFFECTING DOUBLE HAMMOCK CREEK A connection already exists between the eastern half of the canal system and Double Hammock Creek, and complete dike removal would only augment the connection. Water quality in the canal is acceptable in terms of BOD, nitrate-nitrogen, tur- bidity, chlorophyll a or o-phosphate as reported both by the Department and by a private consulting firm in previous studies. Therefore, dike removal would not add un- usual quantities of undesirable substances to water in the Creek. While low DO concentrations may have been recorded in the past, many factors, in- cluding the presence of the dike itself, contribute to the condition. Several factors are of natural origin, such as temperature, wind action and can be ex- pected to act on completely natural systems as well. The conclusion to be drawn is that, as in any water body in Florida, one can expect wide variability in DO con- centrations on a seasonal and daily basis. Concentrations below Class III criteria do occur in waters ordinarily considered of good quality. There is a strong possibility that low saline/low DO ground waters enter the canal system and at times may contri- bute to oxygen depressions. The overriding difference between the canal system east and west of the plug is the magnitude of their connection to Double Hammock Creek. All of the differences be- tween these systems are related to the de- gree of tidal exchange in the two systems. Therefore, the major impediment to flow in the main canal, the earth dike, is itself a large part, if not the chief part, of any problem in the eastern canal system. (Petitioner's Exhibit 6, at 12-13). The Dooris Report and the Doctors' expert testimony demonstrated that the dikes should be removed for the following reasons: The Intent to Deny the permit by the State was on the basis that water behind the dikes should not be allowed to enter State waters. This rationale is groundless in that a connection already exists by way of the mosquito control canal running into Double Hammock Creek. While flow of water may be limited by the size and elevation of the control canal, there is no barrier to movement of wildlife. There is little difference in dissolved oxygen concentration in the water on both sides of the dike. There are low dissolved oxygen con- centrations in Double Hammock Creek. Sediment depths were extremely variable on both sides of the dike, with greatest accumulation on the west portion of the dike which is connected to Double Hammock Creek. The dike itself is a major contributor to any problem on the eastern canal sys- tem as it acts as an impediment to flow circulation. (Petitioner's Exhibit 6) An extensive investigation and review of environmental conditions in Double Hammock Creek prepared by Jones, Edmunds and Associates for the Respondent and presented to the Pasco County Commission on March 15, 1981, confirms the Dooris' conclusion that dissolved oxygen concentrations in Double Hammock Creek naturally fluctuate above and below the standards for Class III waters. According to the Jones Study, dissolved oxygen concentrations in the Gulf of Mexico, Double Hammock Creek and the artificial canal system measured during November and December, 1980, did not differ significantly and many of the readings noted in the Jones Study fluctuate above and below state standards during different times of the year. The artificial canal station identified as WPI in the Study fared as well as some sampling stations located in areas closer to the Gulf. With respect to the isolated finger canal, each test conducted by the Department and the Petitioner indicated that the dissolved oxygen in that canal exceeded state standards and readings of dissolved oxygen in other parts of the canal system and dissolved oxygen levels in Double Hammock Creek. 1/ The Department sampled the eastern point of the canal system in 1979. While it took samples of mid-depth and bottom samples in the east section, the Department did not take corresponding samples in the western section of the system or Double Hammock Creek. The samples taken were in a "worst case" situation in early morning when dissolved oxygen levels are often lowest. In 1976, however, the Department took surface, mid-range and bottom-depth samples in both sections of the system and all exceeded state standards except for one reading taken in Double Hammock Creek. Dissolved oxygen samples taken in 1979 indicated that the surface readings of dissolved oxygen in the eastern end of the main canal were higher than the surface readings taken in Double Hammock Creek. No mid-depth or bottom-depth comparisons were made of dissolved oxygen because no mid- or bottom-depth values were obtained in the western portion of the canal system or Double Hammock Creek. Thus, no comparable comparison can be made of dissolved oxygen levels on each side of the main plug. Evidence Relating To The Department's Standards For Bethnic Oxygen Demand, Oil And Greases In addition to dissolved oxygen, the Dooris Report also sampled sediment in the canals. It was determined that the sediment was neither flocculent nor easily disturbed. Distribution was patchy and there was no substantial bethnic oxygen demand (BOD) exerted as far down as four-five feet in the canal. Higher BOD readings would be expected at that depth if highly organic sedimentary material were in the water at or near the bottom of the canals. As established by the unrebutted testimony of Professor Dooris, the BOD levels in the canal system state standards. During her sampling of the canal system, no oils, greases or other deleterious substances were observed on the waters. This was corroborated by the Intervenors who testified that they had never seen any oil or grease on the surface and Bill Kutash who characterized the sheen which he observed on the surface water as "insignificant." Although Dr. Dooris noted that at some of the sampling stations a smell of hydrogen-sulfide was present when the canal bottom was disturbed by a probe, this condition is not particularly unusual in a natural water body and indicates low levels of oxygen at the bottom of the system. The Department did not take any quantitative measures of dissolved or emulsified oils or greases in the canals or Double Hammock Creek. Likewise, no one testifying on behalf of the Respondent stated that there was such visible or undissolved oil on the waters so as to cause "taste or odor or otherwise interfere with the beneficial use of the water." The Department did not present any evidence that the quantitative levels for lead, phosphate, silver, phosphorous, or any other chemical listed in Rule 17-3.121, Florida Administrative Code, was not being met in the canal system. Similarly, no evidence was presented to show that the waters in the system are subject to any contaminants, odors, color or other condition in such a degree as to create a nuisance. Evidence Relating To The Department Standards For Fish. Wildlife and Lower Level Invertebrates The Intervenors, who have lived on the canal for a number of years and observed the canal system and surrounding areas, testified that a substantial diversity of marine life exists in the canals. The marine life includes fish, such as snook, red snapper, sea trout and pen fish, and crabs and wildlife. The Department discovered low levels of benthic macroinvertebrates and lower forms of marine life in the eastern section of the canal. According to Dr. P. Dooris, opening the system to a greater degree to Double Hammock Creek would promote greater diversity of animal life. This observation is supported by the Jones Study, Intervenor's Exhibit 10 which found a large number of benthic macroinvertebrates and marine life in the western section of the system. The Jones Report at Table 3.21, compares benthic macroinvertebrates found in Salt Springs Run and Double Hammock Creek with other estuaries in Southwest Florida. From the data in the table, it can be concluded that benthic macroinvertebrates vary greatly in quantity and diversity depending upon the time of the year and the conditions under which the samples were taken. Table 3.17 of the Jones Study reflects a sampling of benthic macroinvertebrates collected from various stations in Double Hammock Creek, the Gulf of Mexico and the canal system west of the main plug. The Study revealed that benthic macroinvertebrates were present in the canal system although to a lesser extent than those present at the other sampling stations. According to Dr. P. Dooris, the removal of the plug would encourage vegetation, creating a better environment for fish and invertebrates. The main plug is limiting the free entry and exit of fish and benthic macroinvertebrates in the eastern portion of the canal. Additionally, the main plug acts as a bridge to the marsh area to the north which has been set aside from development. Limiting public access to this area by removal of the plug would provide a more secure and improved environment for the fish and wildlife in the marsh. Removal of the main plug would encourage greater mixing of the water and flushing of the system. If the plug is not removed, the canal system would slowly deteriorate and could stagnate. The flushing action and residence time in the canal would be enhanced if the figuration of the canals was improved. They are presently deep and relatively straight sided which, when combined with the shallower entrance to the main canal, acts as a hinderance to mixing and flushing. The residence time of the water in the eastern canal section is longer than that in the western system. Presumably, this is due to the western section of the main canals direct connection to Double Hammock Creek and results in higher degrees of flushing in this section. The Intervenor's Assertion That Denial Of The Permit Application Constitutes A Taking and/or The State Should Be Estopped From Refusing To Issue A Permit At the final hearing, the Intervenors presented evidence that if the canals began to degrade and stagnate, the value of canal property would decrease and could become worthless to some residents. Based on this testimony, the Intervenors assert that they have been denied due process if the Department fails to issue the requested permit, thereby, taking their property without just compensation. However, even assuming Intervenors' worst case situation, an option which would be available to the residents, to alleviate a stagnant water problem would be to fill the canals. Moreover, the actions of the state or lack thereof in this case is not the proximate cause of the residents problem. The developer, by proceeding on his own after being placed on notice of permitting requirements, assumed any risk associated with not providing what had been promised. Additionally, the Department's failure (1) to require a permit to construct the canals through legal proceedings, (2) to inform Conrad that he could not connect the canals to state waters, (3) to inform the residents of the situation with the canals and/or (4) to refer the developer to the Florida Land Sales Board, are asserted as a basis for imposing an estoppel against the State in this case. While it is true that some of the Intervenors bought their homes based on advertising and representations of "gulf access", insufficient evidence was presented to show that the state played a role in this misrepresentation. Unfortunately, the Applicant advertised the property as "gulf access" in the absence of any qualification such as "subject to permitting" which would have protected his own interest and placed respective purchasers on notice. More disturbing, however, is the Intervenors estoppel argument concerning a meeting between Representative Ron Richmond, the former Secretary of the Department and others. At the meeting, the former Secretary informed those present that the only reason that the main plug was maintained was to contain effluent that was being dumped from a nearby sewage treatment system and if the sewage problem could be solved and it could be proved that the canal was open prior to the sewage problem, then the plug could be removed. Following the meeting, Representative Richmond believed that the Department had no problem with the main plug but objected to its removal to keep leverage on the small plug. The former Secretary eventually denied the permit requested since the Department did not believe that the isolated canal was ever open. Thereafter, interested parties were invited to view aerial photographs from 1974 which show the two plugged areas closed. Although the sewage treatment problem was eventually solved and effluent discharge presumably has stopped, no authorization for the main plug's removal was granted. This, however, is not sufficient to demonstrate an estoppel. Regardless of what may have been represented by the former Secretary, the problem with sewage discharge was not the only factor which by law was required to be considered by the Department. If after the sewage problem was solved other conditions were found to be present which were prohibited under state law, no permit could be issued. The sewage problem would have been required to be solved regardless of the plug and its removal is insufficient to establish an estoppel.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the application of Petitioner CNC Enterprises, Inc., for a permit to excavate two plugs in an artificially created canal system in the Westport subdivision be granted subject to the following conditions concerning the removal of the plug from canal #3, the isolated finger canal: (1) that prior to removal, a scientifically acceptable monitoring program be established to evaluate the impact on the entire system of opening the isolated canal and (2) prior to removal the parties agree that if significant degradation were detected as a result of opening the isolated canal, its dike would be closed subject to being reopened when the canal was appropriately modified, if possible, to limit its negative impact on the entire system. Additionally, Petitioner must utilize equipment including, but not limited, to turbidity curtains to keep turbidity at a minimum and any spoil must be deposited in upland areas away from the project site. DONE and ORDERED this 24th day of May, 1982, in Tallahassee, Florida. SHARYN L. SMITH Hearing Officer Department of Administration Division of Administrative Hearings Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 24th day of May, 1982.
Findings Of Fact Kyle Brothers Land Company, Inc. filed its application with the Department of Environmental Regulation to excavate four canals and to unplug two canals which they had already dug within its development in Port Pine Heights located on Big Pine Key, Monroe County, Florida. The application of Kyle Brothers Land Company, Inc. was introduced as Composite Exhibit No. 1 and a plat of the proposed development was introduced as Exhibit 9. The proposed activity would be constructed on Class 3 waters as defined in Chapter 17-3, F.A.C. Test data submitted shows that the water quality of the water in the existing canals meets or exceeds the standards established in Section 17-3.09, F.A.C. The proposed canals, as well as the existing canals, are being developed as residential home sites. Two potential threats exist to the maintenance of water quality standards within the canals. The first threat is the short-term effect of increased turbidity of the waters due to the construction of the proposed activity. The second threat is the long-term effect of the increased pollution of the waters resulting from waste disposal through proposed septic tank systems to be used in the residential home sites adjoining the proposed and existing canals. The permit application appraisal, Exhibit 2, indicates that the short- term effects of increased turbidity could be controlled by the use of plugs, screens, and daily testing for turbidity and dissolved oxygen. The evidence further shows a variance in the depth of the existing canals and the two plugged canals. The two plugged canals and several of the existing canals have a depth greater than the central canal. The variance in depth permits the accumulation of debris and silt in the finger canals which under certain conditions could be stirred up and become suspended in the waters of the canals increasing the turbidity of the canals and violating the water quality standards. To prevent this from occurring these canals would have to be filled to bring them to the depth of the central canal. The long-term threat to water quality in the canals is the introduction into the canals of nutrients and chemicals attributable to surface water runoff and the proposed septic tank systems to be utilized on the residential home sites. Control of surface water runoff can be obtained by backs loping the uplands away from the canals. The control of nutrient loading associated with the septic tank systems is more complex. The Declaration of Restrictions for Port Pine Heights, Exhibit 7, recites that sewage disposal shall be by septic tank or central disposal plant. However, the plans submitted by the Applicant do not indicate any provision for establishment of a central disposal plant. Further, under the provisions of the deed restrictions there is no requirement that a resident of Port Pine Heights use a central disposal plant even if such a system were available. The current residents of Port Pine Heights currently use septic tank waste disposal systems; however, the number of current residents is substantially less than the number of residents that Port Pine Heights is designed to accommodate. The disposal of sewage by septic tanks will result in the introduction in the canal waters of partially treated effluent through exchange with subsurface waters in the porous limestone substrata present in the area. To maintain the water quality at the required level, the waste effluent from the residential development must be prevented from entering into the canal. Because of the substantial difference in the level of development existing in Port Pine Heights currently and the potential level of development, the test data and the projections based upon that data do not give reasonable assurances that the increased pollutions attributable to the use of septic tanks would not violate water-quality standards.
Recommendation Until the Applicant makes a reasonable, affirmative showing that the long- term effect of the activity will not violate the water-quality standards, the application should be denied. DONE and ORDERED this 22nd day of October, 1976 in Tallahassee, Florida. STEPHEN F. DEAN, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 ================================================================= AGENCY FINAL ORDER ================================================================= STATE OF FLORIDA DEPARTMENT OF ENVIRONMENTAL REGULATION KYLE BROTHERS LAND COMPANY, INC. Petitioner, vs. CASE NO. 76-607 DEPARTMENT OF ENVIRONMENTAL REGULATION, Respondent. /
Findings Of Fact By various purchases during the period 1967-1969, Petitioner acquired over 14,000 acres of land in the eastern sector of central Florida. About 12,000 acres of the land lie in Volusia County and the remainder in the northern part of Brevard County. Petitioner registered various public offering statements for resale of this land with the Florida Land Sales Board. In 1967, pursuant to an act of the State Legislature, the Circuit Court of the Seventh Judicial Circuit of Florida entered judgment creating and incorporating the South County Drainage District which included Petitioner's land in Volusia County. Later attempts by judicial action to extend the Drainage District boundary lines to include Petitioner's land in Brevard County were unsuccessful. A 1967 agreement between Petitioner and the Drainage District provided that a drainage plan would be implemented by the District with funds for construction being advanced by Petitioner. This plan consisted of dead-end graded roads and a system of ditches and canals that were to be constructed and maintained by the Drainage District, with purchasers of the property to be assessed for the cost of the facilities. In 1972, Volusia County adopted a home rule charter which abolished the South County Drainage District and transferred its powers and functions to the county. In 1973, an agreement was entered into between Petitioner and Volusia County providing for the transfer to the county of the functions, responsibilities, and obligations of the Drainage District, and assigning to Petitioner the right to petition the State for approval of the drainage plan. Under the agreement, a Special Improvement District was created by the County (testimony of Trella, Maise1, Exhibits 1, 2, 25, 26, 27). The land acquired by Petitioner had been designated as Cape Atlantic Estates and was divided into tracts or lots in a grid system which was a series of rectangular squares with intersecting roads. Initially, the tracts were two and 1/2 acres each and eventually they were halved and sold in one and 1/4 acre plots. A typical offering statement provided that the "predeveloped tracts" were subject to road and drainage rights-of- way, and that purchasers, after paying their contracts in full, would receive free and clear title to the property. It was further stated that physical access would be obtained over rough graded dirt roads to be completed by December 31, 1973, and that when drainage facilities were completed the land would be dry. It was specifically pointed out that it was not a "homesite" offering nor was it part of a recorded plat, but offered as part of a section, township and range. However, the statement also noted that facilities such as elementary schools, churches, and fire, and police protection were available in neighboring communities. It also indicated that there was no water supply, sewage, public utilities, or public transportation to the property. Sales commenced in 1967 and, by the middle of 1971, approximately 98 percent of the tracts had been sold, primarily to out-of-state purchasers. The bulk of the sales were made by telephone contacts initiated by Petitioner's salesmen. Some 5,000 purchasers bought tracts in the development on contracts which were of eleven to twelve years in duration. The property in question is described as coastal low lands that consist of essentially level terraces. The surface drainage of the land is poorly-developed and inefficient. The terraces begin at the Atlantic Ocean on the east and progress westward to a maximum altitude of about 29 feet in the project area. The Atlantic coastal ridge functions as a divide between the St. Johns river and the coastal drainage basin called Turnbull Hammock. West of the ridge, surface drainage generally is toward the St. Johns river, and east of the ridge drainage is into Turnbull, Hammock which leads to Turnbull Creek and thence to the Indian River. The region has large swamp and marshland areas and sandy surface soils which are intermittently underlain by hardpan at shallow depths which impedes rainfall infiltration. Much of the area is covered with ponds during the wet season creating swampy conditions. The climate supports heavy growth of native pine and scrub oak trees in the sandy soils. Cypress trees prevail in the wet bottomlands. Turnbull Hammock occupies the eastern quarter of the tract and is flat and heavily-wooded. It serves as a catchment for surface runoff from the lands immediately to the west and also for lands outside and north of the project. The Turnbull Hammock natural drainage basin involves about 48 square miles. Highway 1- 95 - traverses the center of the area in a north-south direction. The land is in a primitive state and is mostly unused with the exception of minor cattle grazing areas. Subsurface water leaving the Cape Atlantic Estates to the east surfaces in the Turnbull Hammock and drains to the south into the Indian River. On the west side, the tendency of the water is to move west and surface in cypress sloughs, eventually reaching Buck Lake, an area to the southwest. During flood conditions, when surface waters are high, the western subsurface water could make its way in time to the St. Johns River. The original drainage plan was aimed at decreasing the retention of surface water and using controlled measures to improve runoff in order to prevent flooding and soil erosion. Some nine percent of the property has standing water or ponding and, although in many of the sand ridges, this is not a serious problem because the rainfall quickly dissipates into the soil, in those areas were the soil is heavily interspersed with hardpan, there is slow percolation. Some 26 percent of the land area floods during rain showers. The plan was to remove the standing surface water by a network of canals, ditches and swales and, to achieve these goals, regulating devices were to be installed at two major discharge points of the system. The plan incorporated a main canal located just west of 1-95 which would drain the western Volusia County portion of the project area through an existing 9' X 12' double box culvert under 1-95 into a north outfall canal and ultimately into Turnbull Hammock. The remaining portion of the western section, some 2300 acres in Brevard County, was planned to be drained to the south whereby water would exit the property through a 142 acre storage reservoir that was considered to have sufficient capacity to retain the water during a 50 year flood condition and yet not exceed the existing natural discharge rate. Since Turnbull Hammock is considerably lower than the western side of the property, a self regulating control gate was considered necessary to maintain the water level of the canal in Volusia County at a level of 21 feet mean sea level. In the Brevard County portion, the main canal water level was designed to be kept at an elevation of 20 feet mean sea level by a fixed control structure at the reservoir discharge. It was planned that water would be collected from the area by lateral swales and ditches which would flow into the main canal (testimony of Trelia, Garcia; Exhibits 2,3,4 & 15). The main canal for the project was constructed in 1970. This canal generally parallels the west side of 1-95 in the project area and is approximately 14 1/2 miles in length, some 90 to 100 feet wide and five to six feet in depth. It had been estimated that all the improvements for the project would be completed by December 31, 1973. In early 1971, the Drainage District was in the design stages for the next phase when it learned that Volusia County had adopted the home rule charter that abolished, the South County Drainage District. At this point, work on the project stopped and nothing further was done toward completion of the improvements to the land. In the middle of 1972, after negotiations with Volusia County, Petitioner became aware that various state agencies, same of which had come into being since the original purchase of the land, might have some responsibility in connection with the project. The Department of Pollution control, Department of Natural Resources, the Game and Fresh Water Fish Commission, and the Trustees of the Internal Improvement Trust Fund were contacted to see if they had any requirements as to the proposed improvements. The Department of Pollution control was the only agency which expressed an interest or concern in the matter. Petitioner also ceased sales in the middle of ;1972 after discussions with the Florida Land Sales Division, because of the uncertainty of the situation at that time. During the remainder of 1972, Petitioner's representatives had various discussions with officials of the Department of Pollution Control at Tallahassee, but was advised that nothing definitive could be accomplished on the drainage plan pending a resolution of the status of the South County Drainage District which was in litigation at the time. Around October, 1972, as a result of discussions with various county officials and the Department of Pollution Control, Petitioner decided that an environmental impact study would be, beneficial and therefore retained the services of Brevard Engineering Company of Cape Canaveral, Florida, to make such an environmental assessment of Cape Atlantic Estates. This report was completed in February, 1973, and transmitted to the Department of Pollution Control in April. Although there were numerous conversations with Tallahassee representatives of the Department of Pollution Control during the remainder of the year, it was not until early 1974 that petitioner was advised it should start discussing the matter with the Department's central regional office in Orlando. A meeting was held at Orlando between Petitioner's representatives and officials of the regional office in March, 1974 at which time the details of the project were reviewed. Mr. Woods, the regional engineer for the Orlando office at that time, indicated that he wished to study the matter further because he was not familiar with the environmental study which had been received from their Tallahassee office. There followed a field trip to the project area where Mr. Garcia, the project engineer,, and two members of the Orlando regional office of the Department, Mr. Hulbert and Mr. Medley, looked over the area. In April, 1974, there was another meeting with Mr. Woods at which time he indicated that the project would be approached by the Department as a potential pollution source at any points where the waters went outside the property boundaries. This was followed up by a letter from Mr. Woods received by Petitioner in June, 1974, which stated that in view of the primary interest of his office to protect and preserve water quality as to the project, it was recommended that strong consideration be given to modifying the drainage plan to allow for reduction in the following areas: Draining of swamps, marshes, and wet lands which is in general detrimental to water quality by the removal of natural filtration and assimilative systems from the service of treatment of stormwater runoff. Introduction of canals and artificial waterways degrade water quality by virtue of their stagnating effect and general magnification of adverse effects in (1) above by lowering the ground water table. Transporting of water across natural barriers and separate watersheds is generally detrimental to water quality by virtue of a net change of flow patterns and characteristics by reducing or increasing the normal waterbudget in the area. Mr. Woods also pointed out in his letter that, although it was recognized the gridiron pattern of the project made maximum utilization of the available land his office felt that a significant reduction in adverse effects as indicated could be achieved by utilizing the natural systems as much as possible, and that this would require maximum utilization of the existing wetlands, provisions for on-site retention if and where practical, and selective planting to provide for natural filtration and nutrient assimilation. He further indicated that it would be necessary to obtain a water quality certification from his Department, that Petitioner must show the facilities would be properly constructed and operated, and would be required to produce evidence that either the county or the drainage district was in a position to assume responsibility as the permittee (testimony of Trella, Garcia; Exhibit 10). After receipt of the letter from Mr. Woods, Petitioner engaged the firm of Frederic R. Harris, Inc., consulting engineers, of Ft. Lauderdale, Florida, to prepare a definite project report on drainage that would provide modifications of the drainage plan in order to comply with the objections posed in the Woods letter. This report as prepared by John W. Blue, professional engineer and, although dated September 1974, was available in final form in August at which time a meeting was held between Petitioner's representatives and the successor regional engineer in Orlando, Mr. Thomas Hunnicutt. The meeting was held on August 6, and in attendance were Mr. Gene Medley and Mr. James Hulbert of the regional staff. At this meeting, Mr. Hunnicutt was acquainted with the project and the letter from Mr. Woods, and given the "Harris" report for consideration. This report reflected Petitioner's attempts to satisfy the objections of the department by incorporating the following features in the plan: Specifications to prevent the conveyance of oils, chemicals, silt or other pollutants into the drainage waters during project construction. Planting grass on the erodible earth surfaces exposed during construction. Preservation of about 200 acres of natural hammock ponding sites. Designation of about 75 acres of natural overflow retention areas for filtration of roadside ditch runoff. Construction of about 70 acres of artificial overflow retention areas for filtration of lateral and runoff. Provision for about 209 acres of natural water spreading areas at canal and outfall terminals. Avoidance of direct connections between drainage canals and watercourses or estuaries. Utilization of about 127 acres of dug ponds and existing borrow pits for regulation of runoff peaks. Overexcavation of canals and laterals to make permanent ponds. Whereas the report of the Brevard Engineering Company had been based on a 50 year flood condition, the Harris Report was based primarily upon 10 and 25 year flood conditions. There was a misunderstanding as to Mr. Hunnicutt's comments to Petitioner at this meeting. Petitioner claims Hunnicutt had then stated that the project was in good order and that they should proceed to file their application for a permit. On the other hand, Hunnicutt testified that his remarks were predicated on the fact that since Petitioner had indicated it had made all of the modifications in the project that could he done (by virtue -of the grid system that could not be modified) , he therefore felt there was no point in further discussion. He also was of the opinion that there was sufficient information available at that time to permit consideration of an application by the Department. The Petitioner was provided blank copies of a form entitled Application To Construct/Operate Pollution Sources" (Exhibit 5), and, although Mr. Hunnicutt then acknowledged that this form did not apply too well to the endeavor under consideration he told Petitioner that they should go ahead and file the forms, at Tallahassee, attaching all supporting evidence. The application was filed in the joint names of Volusia County and Atlantic International Investment Corporation and signed by the president of the corporation. It was dated September 9, 1974, and submitted and delivered to the Respondent in Tallahassee on September 10, 1974, with a copy being given to the Orlando regional office. Other than receiving a letter dated October 25, 1974, from the Department of Natural Resources indicating that a water quality certification would not be required for the project, Petitioner heard nothing further from the Respondent until it received a letter from Mr. Hunnicutt denying the permit, dated November 6; 1974. This letter said that the regional staff had reviewed the application and based thereon, plus reviews and comments from Brevard and Volusia County Environmental Control, the permit was recommended to be denied because the applicant had not given the Department "reasonable assurance that the results of this project will be in accord with applicable laws, rules and regulations" and that the project "will have significant adverse effects on water quality as well as the aquatic resources in the area. It further stated that pursuant to Chapter 403.087, Florida Statutes, and Chapter 17- 4.07, Florida Administrative Code, the permit was denied and that Petitioner had a right to request a hearing as provided under Chapter 17-4.15, Florida Administrative Code. Petitioner filed its petition for review of the denial of the permit under the aforesaid Chapter 17-4.15, Florida Administrative Code on November 15, 1974 (Exhibits 4, 5, 6, 10, 11, 16; testimony of Mr. Garcia, Mr. Hunnicutt). In processing the application, Mr. Hunnicutt assigned it to Mr. Medley of his office for review. Medley proceeded to contact local agencies including the Volusia County and Brevard County Environmental Sections; Volusia County Public Works Department, St. Johns Water Management District, the Volusia County Environmental Task Force, and the Florida Audubon Society. He testified that all were opposed to the project for various reasons. Aside from the materials attached as exhibits to the application by Petitioner, which consisted of the Brevard Engineering Report, the Harris Report and plans and specifications and chemical test results taken by Department representatives from sample waters ,of the main canal the additional written materials before the Department prior to the, denial of the permit consisted of a letter from Mr. Kinloch, Pollution Control Coordinator of Brevard County, dated October 31, 1974; a letter from the Volusia County Environmental Task Force (a private group of about 25 professional persons who are concerned environmentalists) dated November 4, 1974; and a statement from Cherie Down a biologist with the Brevard County Health Department, dated September 6, 1973 (Exhibits 17,19 and 24). A letter from Gregory Camp, Environmental Control Officer of Volusia County, dated November 5, 1974, was not received in Respondent's Orlando Office until November 7, and therefore was rejected as an exhibit (Exhibit 18 for identification). In addition, Mr. Camp's conclusions were said by the Assistant County Attorney for Volusia County as not being authorized by the County Commission (testimony of Mr. Stuart). About a week before issuance of the denial letter, a meeting had been held at the Orlando Regional Office attended by its chief, Mr. Senkevich, Mr. Hunnicutt, Mr. Hulbert and Mr. Medley. The purpose of the meeting was to arrive at a decision concerning Petitioner's application. The procedure at the region was for the staff to decide the issue involved and then to assign an engineer in charge -- in this case, Mr. Hunnicutt -- to sign the decision letter to the applicant. No minutes of this meeting were made and the decision was a collective one by Mr. Hunnicutt, Mr. Hulbert, and Mr. Medley. They expressed their common opinion at the meeting that the permit application should be denied primarily because of considerations of water quality. Mr. Senkevich testified that he had the authority to overturn, the recommendation of the staff, but since his staff had unanimously concurred in the denial, he felt that their decision was correct. He is a civil engineer and primarily an administrator, but is not familiar with chemistry, biology, or hydrology. At the time, he erroneously believed that hydrological tests had been made by his staff as to the project and was of the incorrect, view that waters of one classification must flow into receiving waters of the same classification. He conceded at the hearing that he had only briefly studied the plan prior to the meeting and indicated that he had been concerned that the project area eventually would be developed with homes that would require septic tanks and cause a considerable problem with the degradation of water in the canals. He therefore was concerned that the canals would not maintain the requirements for Class III waters. He was unfamiliar with the aspect of danger to aquatic resources other than he felt that the main concern had been regarding trees in the area. He recognized that permits could be issued with specified conditions reasonably necessary for the prevention of pollution and that this could have been done, with respect to Petitioner's project. However, he felt that if this were done, it would usually be hard to enforce and so it was easier to insure that the project conformed to requirements at the time of construction rather than attaching conditions to the permit. He believed that if some of the project area which had not been sold could have been utilized for retention of some of the storm water runoff to provide for percolation or water storage, and if certain low areas could have been utilized for something other than lots, this possibly would have cured the objections of the staff. He did not feel that the changes which had been made by the Harris Report were sufficient to overcome the staff's objections to the project. He acknowledged that water tests in the main canal made by the Department since it had been built and prior to November, 1974, had shown an improvement in the canal water quality. He also acknowledged that none of the five criteria for control of storm water runoff set forth by the Department of Pollution Control in an April 1974 memorandum to regional offices (Exhibit 13) were violated by the proposed project (testimony of Hunnicutt, Senkevich). Mr. Medley, a biologist of the department and the project officer for review of Petitioner's application testified that he was mainly concerned because the project was designed in such a way as to eliminate wetland areas that treat and filter stormwater runoff prior to entry into the Hammock area and provide a place for wildlife to propagate. He felt that water and wildlife quality would diminish by reason of the accelerated flow of water caused by the canal system. This would take place by creating an unstable habitat in which there would be less of a variety of organisms by virtue of polluted waters entering the area. Such a condition would reduce the diversity and quality of species of organisms. He also felt that if water was diverted from one basin to another, it would have an adverse effect on biota because of the change in flow. He further believed that the failure of the applicant to address the question of future development of the project area was significant because once development occurs, canals get storm runoff from surrounding areas, become stagnant and high in nutrients. The state is then obliged to insure water quality and has been unable to do so in other projects of a like nature. He also was concerned because the reports attached to the application contained inaccuracies and it was difficult to determine what was reliable and what was unreliable information. His testimony showed that he, too, was under the erroneous impression that a member of the Department had assessed the hydrological aspects of the project when the Department was processing the application, and acknowledged that it would be difficult to determine if water would be degraded until the actual construction had been completed. However, he expressed his opinion that there is presently insufficient technology to create any canal system that would provide water quality to meet state regulations and it was his belief that wetlands should stay as they are in the interest of water quality. At the hearing, he was unable to describe the proposed canal systems for the project or the proposed vegetative filter area at the end of the canal (testimony of Medley) Mr. Hulbert, another Department bilogist, testified it was unrealistic to think that the project would not eventually be developed with hones. His concerns basically were similar to those of Medley concerning canal water quality in the future and as to inconsistencies in reports submitted by the applicant. He felt that the basic problem was the project grid design with canals following such design rather than natural drainage contours, but that modifications could have been made in the design to satisfy the Department's objections if additional buffer zones had been created along and adjacent to the proposed canals. However, he would not have recommended a permit under any circumstances because of the objections of Brevard County and Volusia County. It was his position that in such a situation the Department should deny the permit and then let the matter be determined by a Hearing Officer. He conceded that he had not examined data submitted by either county and that there was, in fact, no data submitted from Volusia County (testimony of Hulbert). Mr. Hunnicutt, the regional engineer, who is an environmental engineer, testified it was the concensus of all at the meeting that everything they had seen pointed to the fact that project drainage couldn't provide water quality sufficient to meet state requirements. His most objectionable aspect of the project was the drainage pattern and the fact that the canals had to be rather deep and did not follow natural contours, because deep canals below the water table would have standing water and no vegetation as would a more shallow drainage system. He felt that the areas of vegetative growth added by the Petitioner in the Harris Report were not large enough and would not be too effective in removing pollutants by the fast flow rate. He also was concerned about inconsistencies in the applicant's exhibits and saw no point in obtaining more test results on peripheral issues because the Petitioner was "locked in" to a deep canal concept. He, too, was under the mistaken notion that the project had been considered by a hydrologist of the department. Although he felt there were changes that could have been made which would warrant issuance of the permit, there was no point in telling the Petitioner about these because its representatives had said they couldn't make any more changes due to the existing grid system. He also agreed with Hulbert that if local agencies objected as they had in this case, the Department would deny the application but that when such objections were received, they were generally in accord with the existing view of the departmental staff. He testified that the question of the impact of the project on shellfish harvesting in the Indian River was not a serious consideration in his mind insofar as denial of the permit was concerned. He acknowledged that a permit could be issued with conditions, but the problem then became whether the applicant could maintain control effectively to enforce the conditions (testimony of Mr. Hunnicutt). A number of expert witnesses of various disciplines were called by the parties to, testify concerning the various ramifications of the proposed construction by the Petitioner. The following findings of fact are made with respect to specific material aspects of the case: The construction of homes on the tracts at Cape Atlantic Estates in any appreciable volume or any extensive use of the land in the next ten years is highly unlikely. This is due to time required for construction of the drainage facilities, and to the fact that most of the land contracts will not be paid out until the 1980's since owners of the tracts will not secure possession of their land until they have completed payment therefor. The land is not suitable for the installation of septic tanks because of the shallow soil and building permits will not be issued because of the dead-end roads in the project and the absence of paved roads ajoining the property (Exhibit 2, testimony of Trella, Maisel, Blue and Ford). It is impossible to state precisely what the impact of construction of the canal system, roads, ditches, retention ponds and control devices envisioned in the drainage plan will have on the water quality of the canals, Turnbull Hammock, Turnbull Creek, and the Indian River. Drainage of the land area by the construction will produce changes in the environment, but also will make the land accessible to owners, and to some extent may benefit the owners of nearby parcels by draining surface waters and lessening salt water intrusion. One owner of adjoining land objects to any changes in its present natural state (testimony of Blue, Hudson, Stock, Medley, Hunt, Kuperberg, White, De Wees, Fogel & Davenport) Draining and developing the project area will change the surface water flow characteristics by reducing the amount of time water is concentrated or retained in the natural area. This will undoubtedly increase the peak flows and volume of water generated from the area as compared with natural discharge. However, this increase will not exceed the capability of Turnbull Hammock to accept these flows, and increased quantities of waters in the Hammock probably would be beneficial by improving its soil conditions. The increase in peak flows and runoff volumes attributable to the project will not exceed 16 percent of the present ten year storm runoff into the Indian River. In terms of groundwater, recharge in the Cape Atlantic Area occurs only on the Atlantic Coastal ridge. A lowered water table, the result of improving drainage, will decrease the fresh water lead thereby reducing recharge. However, the water table will be lowered only one or two feet and if it is maintained with control structures at these levels as contemplated, improving drainage will not have a serious effect on the quality or quantity of the non-artesian water in the shallow aquifer in the area. The water from approximately 80 percent of the land area will flow into Turnbull Hammock and, in the southwest section of the project area, the water will be held in retention ponds and eventually released in a natural flow. Some water will go to the west toward the St. Johns River basin but it is impossible to tell how much flow this will be. The project will have no significant effect on Lake Harney and it is too far removed from the St. Johns River to have any great impact on its conditions. The drainage of the middle area of the project is ill-defined and water can flow either east or west, depending on how much rain has fallen. In the flat area to the north, water can run in both directions. Passage of water through the designed holding areas vegetation, and then reoxogenation in the canals and spreading systems to Turnbull Hammock will improve surface water quality at the site by creating motion. The roadside swales which bring water to the middle lateral canals will lower the ground water table several feet and this may well improve the water system because presently it is ponded and evaporates or filtrates into the atmosphere. Evidence of some salt water intrusion at the lower end of the Hammock area is evidenced by decayed cypress trees which are not salt water tolerant. Additional fresh water in the Hammock would improve this condition (testimony of McElroy, Blue, Clark, Hudson, McClouth; Exhibit 22). Although the waters in the main canal may not always have met all of the regulatory criteria for Class III waters under Department regulations, its quality has improved over the past several years, particularly with respect to the presence of dissolved oxygen. This is in keeping with the opinion of the experts who agreed that construction produces a temporary. adverse effect on water quality, but the waters soon stabilize and vegetation thereafter appears. When the canal system is completed and connected, a natural flow of water will occur to wash out minerals and other harmful substances, and increase the amounts of dissolved oxygen in the water. It is therefore considered unrealistic to use the test reports obtained from water samples in the present dead-end main canal because they cannot be considered representative of the quality of the water that will be present when the drainage system is in operation. Although it cannot be determined what the exact quality of the canal waters will be when in full operation, there are certain projected consequences which reasonably may be considered likely to occur. After construction of the drainage facilities, the flow of water Bill accelerate and this, in turn, can diminish the quality of animal and plant life to some degree in the Hammock area by reducing the diversity of species. The Hammock is normally anaerobic and nutrients are assimilated there to produce trees, low-lying vegetation, and animal life. Although an increased flow of fresh water will be beneficial to dominant trees, low-lying vegetation might suffer somewhat with a consequent impact on the organisms that feed upon them. However, this is a temporary condition during heavy rain and the degree of change in organisms depends on the frequency of flow and how long the water stays in the Hammock area. Added fresh water in the Hammock will reduce salt water intrusion with consequent beneficial effects. The Hammock can receive a flow of at least two times as much water as is now present during rainfall without adverse effects on the environment as long as urban development has not occurred to produce pollutants in the form of chemicals, tars, oils, and other wastes. Although several expert witnesses foresee eutrophication of the water in the main canal during stagnant periods of the dry season and then flushing of undesirable materials and nutrients accumulated by the eutrophic process into the Hammock during the wet season, the designed holding structures with shallow margins to encourage vegetation and the increased use of natural areas at the north outfall of the project area will filter and reduce substantially the amount of any undesirable material entering the Hammock. Canal systems with standing water are sometimes prone to eventually becoming clogged with aquatic plant life, such as water hyacinths and hydrilla. This, in turn, requires periodic destruction of the plants, usually by chemicals, in order to permit waterflow to continue. Though this possibly may be expected in the main, canal at some point in the future, the planned vegetative filtering system should control excessive entry of the chemical and other pollutants into the Hammock. During the period 1970-74, there was no growth of such plants in the dead-end main canal and no indication that it had become eutrophic (testimony of Blue, Morris, Clark, Hudson, Medley, Hulbert, Down, Stock, Ross). Although the area where Turnbull Creek enters the Indian River is designated as Class II waters, oysters or other shellfish are not present to any extent in the designated area. The designated shellfish harvesting area is in the Indian River south of the Brevard County line. The Indian River is moderately high in salinity and a wedge of this water goes into Turnbull Creek and then to the Hammock. The mixing zone of water is at the entrance of Turnbull which flows into the Indian River. Beyond this mixing zone where fresh water meets salt water, if shellfish exist, the limited amount of fresh water entering the river would have no significant effect upon their growth. Oysters need between ten to 30 parts per thousand salinity in the water for best growth and if the project water flowed into the Indian River the salinity would remain the same approximately 20 to 30 parts per thousand. In fact, a decrease in salinity in the water to some extent favors growth of oysters. However, increased rainfall and runoff can increase bacterial counts in shellfish and decrease the incidence of shellfish predators (testimony of Clark, Kinloch, Down). No significant diversion of waters from the Cape Atlantic Estates areas from natural drainage basins can be established other than some diversion in the eastern portion of the project area. Other than that the flow of ground water cannot be determined with accuracy and, in any event, the project would have little effect on surrounding lakes in the St. Johns River basin. Diversion would seldom occur except when there is a major storm because unless rainfall exceeds one or two inches an hour, it normally will be absorbed by the sandy soil (testimony of Blue, McClough, Hudson).
The Issue The issue here presented concerns the entitlement of the Applicant/Respondent, Raymond B. Spangler, to construct a boat dock of approximately 800 square feet, included in that dimension is a boat house. The Respondent, State of Florida, Department of Environmental Regulation, has indicated its intention to grant the permit application request and the Petitioner, Louise C. Stone, has opposed the Department's intention to grant the permit.
Findings Of Fact THIS CAUSE comes on for consideration based upon the Petitioner, Louise E. Stone's petition and request for formal proceedings to consider the propriety of the State of Florida, Department of Environmental Regulation's granting of an environmental permit to Raymond B. Spangler. This petition was filed after the Petitioner had received the Department of Environmental Regulation's Notice of Intent to Grant the permit. That notice was dated July 10, 1979, and a copy of that notice has been received into evidence as Department of Environmental Regulation's Exhibit No. 5. The Secretary of the Department of Environmental Regulation opted to have the Division of Administrative Hearings consider this case and on November 5, 1979, a formal hearing was held before a Hearing Officer with the Division of Administrative Hearings. The Petitioner is an adjacent landowner to the Respondent, Raymond B. Spangler, with property located on Lake Minneola. The applicant's project is located in the northwest corner of his property and is as far removed from the common property line with the Petitioner as is possible without violating setback lines. The Petitioner's property is located to the southeast of the project. The project as now contemplated calls for the construction of a boat deck and boat house with dimensions of approximately 800 square feet. The details of this construction may be found in a copy of the Application for Permit which is the Department of Environmental Regulation's Exhibit No. 1 admitted into evidence. The boat house and boat dock would be constructed on Lake Minneola, Lake City, Florida, near the town of Clermont, Florida. Lake Minneola is a navigable waterway and the boat dock and boat house would extend into the navigable water body. The discussion of the project as found in the Respondent, Department of Environmental Regulation's Exhibit No. 1 is an accurate depiction with the exception that the dock will have an increase in length from the original proposal of 70 feet to a new proposal of some 80 to 84 feet. Nonetheless, with the optimum extension, the amount of square footage still closely approximates the initially requested 800-square-foot amount. The reason for the change is due to the rise in the water level of the lake causing the mean high water line to be further landward than was the case at the time the permit was first applied for. The additional extension of the dock is necessary to allow for dry access to the water and to reach the open waterway beyond the growth of maidencane grass (Panicum Hemitomon) near the shoreline. In keeping with allowed exemptions found in Section 403.813, Florida Statutes, and Rule 17-4.04, Florida Administrative Code, 500 square feet of the deck has been constructed and this portion of the dock as constructed may be seen in the Respondent, Raymond B. Spangler's Exhibit No. 10 admitted into evidence, which is a photograph of the partially completed dock. Other photographs of the partially completed dock and the surrounding area of the lake showing the adjacent property may be found as Respondent, Spangler's Exhibits 5 through 9. The Respondent, Spangler's Exhibit No. 4, a composite which was admitted into evidence, is a series of photographs and an overlay which by scale shows a view of the completed dock and a depiction of the boat house when completed. The dock, when completed, will be constituted of a four-foot walkway extending approximately 80 to 84 feet into the water, intersecting at right angles at the terminus of the dock and forming a "T" shape. The boat house would be located adjacent to the walkway leading to the deck terminus. The dimensions of the covered boat house would be 25 feet by 14 feet. The depth of the water in the lake at the location of the continuing dock construction is sufficiently deep to allow the construction of the dock without the necessity of dredging. There is an extensive grassy community mostly constituted of maidencane (Panicum Hemitomon) and although some of the grassy community has been removed during the construction phase of the project, the denuded area may be easily reconstituted and the applicant has expressed his intent to achieve this end as a means to avoid further erosion which has started to occur at the site. None of the erosion which has occurred has interfered with the property of neighboring landowners. The impact of the continued construction in its affect on water quality would be inconsequential. Furthermore, the construction as now completed and as contemplated does not and would not constitute a hazard to navigation, nor interfere with and cause a danger to participants in water sports and related activities that take place on Lake Minneola. When the project is completed the aquatic vegetation can be expected to return and to remain as a viable wetland community. This is due to the fact that the amount of water surface covered by the project is slight and there is sufficient sunlight to support the aquatic vegetation even in the shaded areas. During the construction phase the amount of turbidity caused by the construction has been de minimis, and will be, in view of the fact that the bottom of the lake is a sand base which settles out quickly. This settling effect was seen by the project evaluator, James Morgan, Department of Environmental Regulation, when he toured the site of the construction and saw Respondent Spangler placing pilings. Morgan noted that the turbidity involved was of a short duration. The project will not interfere with fish and wildlife either in their day-to-day activities or in their propagation. None of the standards pertaining to water quality as found in Chapter 17-3, Florida Administrative Code, will be violated by the project. The project will not be an unreasonable obstruction to the view of adjoining riparian owners and the applicant does not intend to use the boat house as a dwelling. When the project was first reviewed by the State of Florida, Department of Environmental Regulation, that agency notified the Florida Game and Fresh Water Fish Commission; the St. Johns River Water Management District, and the Department of Pollution Control of Lake County, Florida. None of these agencies have made known any objection to the project and the Department of Pollution Control of Lake County has specifically indicated their lack of opposition by written comment, a copy of which may be found as the Department of Environmental Regulation's Exhibit No. 3 admitted into evidence.
Recommendation It is recommended that the Applicant/Respondent, Raymond B. Spangler, be allowed to conclude the construction of the boat deck and boat house as contemplated by the application of May 11, 1979, with the addendum that the dock length be extended to 80 feet to 84 feet as necessary; with the proviso that the applicant ensure that the grassy community be returned to its pristine condition in the area of his project, to prohibit further erosion and that these results be accomplished by the issuance of a permit pursuant to the conditions as outlined. DONE AND ENTERED this 16th day of November, 1979, in Tallahassee, Florida. CHARLES C. ADAMS, Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: Robert F. Vason, Jr., Esquire Raymond B. Spangler 408 East Fifth Avenue Route 3, Box 319 Mount Dora, Florida 32757 Clermont, Florida 32711 Segundo J. Fernandez, Esquire Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32301
The Issue Whether Southern Hy Power Corporation (Hy Power) has provided reasonable assurance, based on plans, test results, or other information, that its proposed hydroelectric facility will comply with the Management and Storage of Surface Water (MSSW) statutes and rules of Southwest Florida Water Management District (SWFWMD) and the Wetland Resource Management permit (WRM)/water quality certification statutes and rules of the Florida Department of Environmental Protection (DEP).
Findings Of Fact By Joint Prehearing Stipulation the parties agreed to the following description of the parties and the project: PARTIES: The Department of Environmental Protection (the Department) is a government agency in the State of Florida existing by virtue of Section 20.255, Florida Statutes, and operating pursuant to Chapters 253, 373, 376, and 403, Florida Statutes, and Title 62, Florida Administrative Code. Under an interagency agreement with SWFWMD, the Department also implements Title 40D, Florida Administrative Code. The Department is located in Tallahassee, Florida, and it has a district office in Tampa, Florida, which district includes Levy County. Southern Hy Power Corporation is a Florida Corporation whose principal offices are located at 7008 Southwest 30th Way in Gainesville, Florida. Betty Berger is an interested party with a mailing address of Post Office Box 83, Inglis, Florida. The Campbells are an interested party with a mailing address of 245 Palm Street, Inglis, Florida. Hy Power applied on August 31, 1993, to the Department for a WRM permit/water quality certification to construct a hydroelectric facility on the Inglis By-Pass Channel. The project is located in Section 12, Township 17 South, Range 16 East, within the town of Inglis in Levy County. The facility consists of a powerhouse located on the south side of the channel measuring about 28 feet wide by 115 feet long, drawing water from the Inglis By-Pass Channel, passing it through a single-pit type turbine and discharging downstream of the Inglis By-Pass Spillway Dam. Hy Power applied on August 4, 1998, to the Department for a MSSW permit for the same proposed hydroelectric facility on the Inglis By-Pass Channel. DESCRIPTION OF PROPOSED PROJECT The project involves the construction of an intake structure, powerhouse, and tailrace on a 0.61-acre area located on the south side of the existing Inglis By-Pass Spillway. The facility will take advantage of the existing hydrostatic head that exists on either side of the Spillway Dam, to generate electricity. The powerhouse will be constructed below grade and will contain a single megawatt turbine and generating unit. The intake structure will divert flows from the upstream side of the Spillway Dam through the powerhouse and back into the By-Pass Channel. A small one-story control building and low profile substation will be constructed above grade within the boundaries of the project area. The hydroelectric project is considered to be a "Run of the River" type of facility because it can only use that water which flows down the existing channel. The geometry of the channel restricts flow to a certain amount, therefore the project cannot create or use flows above those that the By-Pass Channel can provide. The overall authority for control of water levels in Lake Rousseau and flow to the lower Withlacoochee River will remain with the DEP. Lake Rousseau was created in 1909 when the Inglis Dam was constructed across the Withlachoochee River for the purposes of hydroelectric generation. The dam impounds over 11 miles of the Withlachoochee River and forms a lake approximately 3,000 to 4,000 acres in size. Prior to construction of the Barge Canal, water released from the Inglis Dam would flow down the lower portion of the Withlachoochee River about 10 miles before entering into the Gulf of Mexico. In the mid to late 1960's the Army Corps of Engineers (ACOE) built a portion of the Cross Florida Barge Canal between the Gulf of Mexico and Lake Rousseau. The canal severed the Withlachoochee River downstream of the Inglis Dam causing its flow to be diverted into the Barge Canal and then into the Gulf. In order to maintain the flow of freshwater from Lake Rousseau to the lower segment of the River, the 8,900-foot long Inglis By- Pass Channel and Spillway were constructed. The resulting downstream flow ensures navigation in the lower portion of the River and sustains its freshwater and estuarine environment. The water level in Lake Rousseau is generally maintained at an elevation of 27.5 feet above mean sea level (msl) by a combination of the Inglis Dam, the Inglis Lock, which is located in the Barge Canal, and the By-Pass Channel Spillway. These water control features are known collectively as the Inglis Project Works. The water levels in the lower Withlachoochee River immediately to the west of the By-Pass spillway are close to sea level. The resulting head provides the potential energy needed to drive the proposed generator turbine. Under normal conditions the majority of water released from Lake Rousseau flows over the Spillway Dam into the lower segment of the River. According to the DEP Office of Greenways and Trails (OGT), the maximum capacity of the existing By-Pass Channel Spillway is 1,540 cubic feet per second. The hydroelectric project will divert whatever flow is allowed around the existing spillway through the turbine and back into the channel. When the Cross Florida Barge Canal project was cancelled in the 1990's, the ACOE transferred ownership of the property to the State of Florida Board of Trustees, who in turn has leased the property to the DEP for use as the Cross Florida Greenbelt State Recreation and Conservation Area. Management of this property, the control of river flow and lake levels, and operation of the Inglis Project Works are exercised by the DEP's OGT. The OGT utilizes a document entitled "Water Control Plan for Inglis Project Works," dated September 1994, as a guide to operating the structures. The Water Control Plan is incorporated as part of the MSSW intent to issue. On or about April 25, 1995, the Governor and Cabinet, sitting as the Board of Trustees of the Internal Improvement Trust Fund ("Trustees"), approved a request from Hy Power to sublease 0.61 acres of Greenway property at the project site for the purpose of providing electric power. The request was challenged by Berger and the Campbells, and resulted in an administrative hearing held on November 3, 1995. As a result of the hearing, Administrative Law Judge Larry Sartin entered a Recommended Order on July 12, 1996, that the Board enter an order approving execution by the DEP of the proposed sublease and dismissing the petition of Berger and the Campbells. The Recommended Order was approved by the Trustees in its entirety in a Final Order dated April 12, 1996 ("Final Order"). Berger v. Southern Hy Power Corporation et al., Case No. 95-3589. A copy of the Final Order is listed as an exhibit to this Stipulation, and the Findings of Fact and Conclusions of Law contained therein are adopted herein. As previously ruled by the undersigned, the previous Final Order is res judicata as to Petitioners in this case, who are collaterally estopped from challenging any of the findings of fact or conclusions of law contained in the previous Final Order. Petitioners reserve the right to litigate issues of fact and law not addressed in the Findings of Fact or Conclusions of Law contained in that Final Order with regard to the permittability of this project under the WRM and MSSW permitting proposals, and to raise objections as to relevance to this proceedings of any of the Findings of Fact or Conclusions of Law in the Final Order. On February 21, 1995, Hy Power filed application with the Federal Energy Regulatory Commission (FERC) for a conduit exemption from the licensing requirements of Part I of the Federal Powers Act (FPA) for the proposed project. Petitioners and various other persons filed protests with FERC in opposition to the project. On April 21, 1997, FERC issued an Order Granting Conduit Exemption, a copy of which is listed as an exhibit to this Stipulation. Petitioners in this case are collaterally estopped from challenging any of the findings or conclusions contained in that Order Granting Conduit Exemption. Petitioners reserve the right to litigate issues of fact and law not addressed in the Findings of Fact or Conclusions of Law contained in that Order Granting Conduit Exemption with regard to the permittability of this project under the WRM and MSSW permitting proposals, and to raise objections as to relevance to this proceedings of any of the findings or conclusions in the Order Granting Conduit Exemption. FACTS ADDUCED AT HEARING OUTLINE OF PROJECT The proposed project calls for the construction of a water retention structure along the existing By-Pass spillway, the excavation of a large hole in which the powerhouse and turbine would be constructed "in-the-dry" south of the existing dam, and a millrace below the proposed project to return the water back into the existing water course. Conflicting testimony was received regarding the facts surrounding the construction of the project. These included: whether the proposed project will touch the existing wing walls of the existing dam; whether the water retention structure is a coffer dam; whether the proposed water retention structure will safely retain the water; whether the powerhouse and turbine have sufficient negative buoyancy to stay in the ground; whether the proposed excavation will weaken the existing dam; and whether the de-watering of the excavation site will adversely impact ground and surface water. PROJECT DESIGN AND ENGINEERING Engineering for the project was directed by witness Richard A. Volkin, a professional engineer and president and CEO of Engineering Company, Inc., based in Canton, Massachusetts. Mr. Volkin has extensive national and international experience in the design, management, and operation of hydroelectric facilities. Other engineers in Mr. Volkin’s firm worked on the project under Mr. Volkin’s direct supervision, including John May, who became registered as a professional engineer in Florida in order to sign and seal the engineering drawings for the project, which he initially did around 1994. Mr. May became ill and retired in 1998. Because of the length of time the application process has taken and the fact that Mr. May retired, there was a time while the application was pending, when Hy Power's design team was without a registered Florida engineer. When this was brought to the attention of Hy Power, Hy Power substituted Steven Crockett for Mr. May as the Florida-registered professional engineer of record for the project. DEP routinely accepts an applicant’s changing its engineer of record during the course of permit application or construction. Mr. Crockett is a civil and structural engineer who has considerable experience in preparing dam structural designs. Mr. Crockett independently reviewed and evaluated the engineering drawings for the project. Mr. Crockett resealed the drawings by using his drawn seal and signing the plans because his embossed seal was not readily available and time was of the essence. Mr. Crockett has advised DEP that he is now engineer of record for the project, using the appropriate DEP forms. Mr. Volkin’s firm performed all of the studies required by the various agencies, including a geotechnical study of the area, a 50-year analysis of water flow in and out of the Lake Rousseau regime, and water quality evaluations of water in the By-Pass Channel. The ACOE performed deep hole borings of the soils (approximately 36-40 feet below sea level) in the area of the project site to determine soil stabilization conditions at the site when they were constructing the Inglis Project Works. The soil conditions found can reasonably be expected to be similar today. Mr. Volkin’s company also took its own eight-foot deep surface core samples. The purpose of those samples was to verify the ACOE data. The new core samples verified the original core samples. Mr. Volkin also reviewed the ACOE’s engineering drawings developed from construction of the Spillway Dam. These show that the dam is founded on limestone bedding that has been stabilized with concrete. The hydroelectric facility will be constructed adjacent to and south of the dam structure and adjacent to and north of the barge canal. The same type of limestone bedrock is found in the area of the proposed construction. The facility design includes an intake channel on the upstream channel and a tailrace downstream. Those are the only structures that will be constructed next to the By-Pass Channel. The construction of the facility itself will be "in the dry." Hy Power will use coffer dams to seal off the construction site from the By-Pass Channel, so that there will not be water leakage from the Channel into the construction site. Water from the By-Pass Channel will enter the power plant when the coffer dams are lifted and the water is allowed to flow into the facility. The Petitioners presented the testimony of Bill Edwards, an individual with considerable experience in the construction of bridges, cofferdams, and similar concrete structures in aquatic and semi-aquatic conditions. Mr. Edwards is a former hard-hat diver who worked all over the world and worked in Florida for many years prior to his retirement. Based upon his experience and expertise in construction related to projects of this type, his testimony is credible and worthy of consideration. Mr. Edwards pointed out that if the proposed water retention structure did not touch the wing wall of the existing dam, it could not keep the water out and would not have the strength that it needed to retain the water. Hy Power’s witnesses explained that the retention structure would be set close enough to the existing wing wall that waterproofing materials could be placed between the two structures to keep the water out. Further, that the existing plans did not show interior bracing which would be included for structural strength and integrity. In sum, the retention structure will be in contact with existing dam’s wing wall, but will be free standing and not dependent upon the strength of the wing wall for its strength. Mr. Edwards pointed out that a cofferdam by definition has walls on all sides of the structure. The structure proposed by Hy Power did not have walls all the way around the proposed excavation. In rebuttal, Hy Power presented evidence that its plans were conceptual, design drawing and not construction plans. Hy Power represented that in actuality it would put as many walls as were necessary to keep the water out of the hole it intended to excavate. Trash racks will be constructed at the intake structures to protect aquatic life and make sure that trash and vegetation do not enter the intake structure or go down river. The trash rack bars will be two inches on center, which the U.S. Fish and Wildlife Service has determined as the appropriate size for the protection of fish. The turbine blades are "double regulated," and operate generally between 60 and 90 revolutions per minute. The design enables the turbine to operate at a constant speed to generate a consistent flow of electricity, notwithstanding the fact that the flow of the water may vary. The blade speed is not very fast, and the 2.5-meter blades provide a two to three-foot opening. This design acts to prevent fish mortality. There are four ways to shut off the flow of water through the proposed structure: close the pitch of the blades, close the wicket gates, allow the counter balance to the wicket gates to kick in and automatically close the gates, and close off the main gates. This is a fail safe system ("four level redundancy") designed to work upon any failure. Once water goes through the generator, its velocity is reduced to no greater than its intake rate which is a maximum of three feet per second. This prevents the water being discharged from the tailrace from causing erosion. If the head of water in the dam produces a flow exceeding three feet per second, it can be diverted over the other dams which will be functional. The power plant will be encased in concrete, except for a small access way that enables a person to go down a set of stairs to the plant. It will be a sealed, waterproof structure, as required by FERC and the ACOE. This will prevent penetration of groundwater, or flood waters in the event a massive flood overtops the plant. The only water entering the powerhouse will be through the turbine tunnel for power generation purposes. Mr. Edwards pointed out that the powerhouse was a closed structure and as such would have positive buoyancy, that is, it would float. Mr. Edwards pointed out that the proposed site is between the barge canal and By-Pass spillway and there is a great deal of groundwater and potentiometric pressure in the existing water table. In sum, there is a unlimited supply of groundwater at the site, and powerhouse could float out of the ground just like an empty swimming pool. Hy Power presented rebuttal evidence that the weight of the building, the turbine, and the water flowing through the turbine would be close to negative buoyancy, and they would add additional weight to the structure as necessary to keep it in place. The project is designed to generate three megawatts of electric power which is enough electricity to serve between 300 and 3000 homes, depending on usage. The project is designed to be unmanned. This is common for facilities such as this. The plant can be operated by remote control, unlike the existing controls at the By-Pass Dam, which are operated manually. DEP can access, monitor, and control remotely the generator's operation to include shutting the facility down at any time. There will be remote sensors to monitor water elevations. Flood protection will improve because of the ability of DEP to manage water flow from a remote location. If there is any major disruption, the plant will shut itself down. The project is classified as "green power." In other words, it generates natural energy without any disruption to the environment. The project will have minimal to no impact on the environment. There will be no significant changes in water quality compared to existing conditions as a result of either construction or operation of the facility. WRM Permit Criteria Hy Power has provided reasonable assurances that the proposed project will not cause a violation of state water quality standards of Section 403.918(a), Florida Statutes (1991). The parties stipulated that turbidity and dissolved oxygen were the two surface water quality issues of concern in this proceeding. The receiving water body is the Inglis By-Pass Channel. The Inglis By-Pass Channel is a Class III surface water. The project is not located in a OFW. While the lower Withlacoochee River is an OFW, the OFW designation runs up the natural river itself, and does not include the Spillway Dam, tailrace, or the remainder of the By-Pass Channel. There would be no degradation of water quality at the point of contact with the Withlacoochee River OFW. The DEP and FERC looked specifically at potential for turbidity and dissolved oxygen in determining whether the project would violate state water quality standards. The standards for turbidity and dissolved oxygen will not be violated. Because the By-Pass Dam is an under flow structure, a minimum of oxygenation currently occurs as water flows through the existing dam. The proposed project runs the water underground through the generator; however, Hy Power will measure the dissolved oxygen below the dam in the Lower Withlacoochee River. In the event there is any lowering of dissolved oxygen, Hy Power can install a "sparge ring" to reoxygenate the water going through the turbine so that dissolved oxygen remains at current levels. No turbidity will be added to the receiving water as a result of the project, because water velocity is low and the structure is encased in concrete and rip-rap. The only other potential for turbidity would occur when the coffer dams are removed after construction is complete. The coffer dams can be removed with the generator closed to permit any turbidity to settle. The amount of siltation that might occur when the generator is opened would be insignificant. Where a project is not in a OFW, an applicant must provide reasonable assurance that the project will not be contrary to public interest. See Section 403.918(2), Florida Statutes (1991). Hy Power has provided such assurances. The project will not directly affect public health, safety or welfare, or the property of others. See Section 403.918 (2)(a)1., Florida Statutes. There are concerns relating to the structural integrity of the proposed facility and adjacent structures which are discussed extensively below. The project will have no adverse impact upon the conservation of fish and wildlife, including threatened and endangered species and their habitat. See Section 403.918 (2)(a)2., Florida Statutes. While manatees are not likely to be found at the project site, the installation of the trash racks will eliminate any potential adverse impact on manatees. In fact, the racks will be an improvement over the current unprotected Spillway Dam. DEP procedures require a specific manatee control plan be implemented to deal with site specific concerns. The project will not adversely affect navigation or the flow of the water or cause harmful erosion or shoaling. See Section 403.918(2)(a)3., Florida Statutes. The project will not adversely affect fishing or recreation values or marine productivity in the vicinity of the project. See Section 403.918(2)(a)4., Florida Statutes. The permanent project and its construction will cause no significant environmental impacts. See Section 403.918(2)(a)5., Florida Statutes. There will be no adverse impacts to significant historical and archeological resources. Section 403.918(2)(a)6., Florida Statutes. With regard to the impact on current conditions and relative value of functions being performed by the areas affected by the proposed activity, there will be no negative impacts. See Section 403.918(2)(a)7., Florida Statutes. Improvement will result from better control of water flow at the project site, installation of trash racks and implementation of green power. THE FORESEEABLE ADVERSE SECONDARY OR CUMULATIVE IMPACTS Potential adverse secondary impacts related to power transmission are addressed through the fact that there is an existing power line corridor that can be used to transmit the electricity. Any need to change the corridor could be addressed by subsequent DEP permitting. Cumulative impacts are not at issue. Mr. Gammon, with Florida Power, acknowledged that the current electric company, presumably Florida Power, would be required by FERC to transport the electricity generated by Hy Power over its existing corridor and poles. No final decision has been made regarding how to access the site with equipment during construction. Several feasible construction options exist, and there are several ways of accessing the site with heavy equipment vehicles and without impacting wetlands. Any final decision would be subject to DEP approval. Since the project meets the public interest criteria of Section 403.918(2)(a), Florida Statutes, and wetland impacts are minimal, the project is permittable without the need for mitigation. See Section 403.918(2)(b), Florida Statutes. The ACOE has issued a permit for the facility. The permit varies slightly from the DEP intent to issue in the use of reinforced concrete rather than rip-rap on the bottom half of the intake channel. This is to comply with ACOE preference, but the variation has only an environmental benefit. Counsel for Petitioners sought to elicit testimony from Linda Sloan, Executive Director of the Withlacoochee Regional Planning Council, with regard to compliance of the proposed project with the Town of Inglis Comprehensive Plan and Land Development Code. Such compliance is not relevant to this proceeding. At any rate, Ms. Sloan conceded that any prohibition that might apply in the Land Development Code to construction of the proposed facility could potentially be alleviated by exemption or variance provisions in the Code. MSSW PERMIT CRITERIA The project will provide adequate flood protection and drainage in the conventional sense. See Rule 40D-4.301(1)(a), Florida Administrative Code. Because the amount of impervious area is minimal, runoff from the project will not in any way contribute to increased flooding or adversely impact drainage patterns. The total amount of impervious area of the facility is less than that of a single-family residence. SWFWMD rules do not even require MSSW permits for single-family residences because the impact is not significant. The only purpose for requiring a MSSW permit for the project is to review the project’s potential downstream impacts to the watershed, not stormwater runoff from the facility itself. The project will not cause adverse water quality or water quantity impacts on adjacent lands in violation of Chapter 373, Florida Statutes, or cause a discharge that violates state water quality standards. See Rule 40 D-4.301(1)(b), Florida Administrative Code. As indicated by the WRM water quality findings above, the project will not generally violate state surface water quality standards. See Rule 40 D-4.301(1)( c), Florida Administrative Code. The project will not generally cause adverse impact on surface or groundwater levels or flows. See Rule 40 D- 4.301(1)(d), Florida Administrative Code. Since the project is a run-of-the-river, it will not diminish the capability of a lake or other impoundment to fluctuate through the full range established for it under Chapter 40D-8, Florida Administrative Code. The project will not cause adverse environmental impacts, or adverse impacts to wetlands, fish, and wildlife or other natural resources. The project can be effectively operated and maintained. See Rule 40D-4.301(1)(g), Florida Administrative Code. The project is a slow speed, low maintenance facility. The design concept is well established and has been successfully used for many years. Possible adverse affects to public safety are discussed below. The project is consistent with the requirements of other public agencies. See Rule 40D-4.301(1)(i), Florida Administrative Code. Potential harm to water resources within the SWFWMD are discussed below. See Rule 40D-4.301(1)(j), Florida Administrative Code. The proposed project generally will not interfere with the legal rights of others. See Rule 40D-4.301(1)(k), Florida Administrative Code. The proposed project is not against public policy. See Rule 40D-4.301(1)(l), Florida Administrative Code. The project complies with the requirements contained in the Basis of Review. See Rule 40D-4.301(2), Florida Administrative Code. There is a dispute as to whether the project was within or at the edge of the 100-year flood plain. This dispute is related to how one interprets the rule as it relates to the millrace and the location of the facility which is under ground. In the conventional sense, the project is not in the flood plain. Further, the project is designed in such a way, that it is waterproof if it were topped with water. While in the past SWFWMD may have had concerns that the project might cause downstream flooding, SWFWMD currently has no such concerns, given the run-of-the-river status of the proposed project. The operation of the project will not cause downstream flooding. The DEP included in its intent to issue, conditions contained in the sublease between Hy Power and the DEP in order to ensure that the facility would remain run-of-the-river, would comply with the water control plan, and would otherwise comply with the terms of the sublease. The DEP has final control over water flow and can revoke the permit or otherwise take enforcement action against Hy Power if Hy Power fails to comply with the water control plan. GROUNDWATER IMPACTS Operation of the project will not cause groundwater contamination or otherwise have adverse groundwater impacts. Some concerns about groundwater during excavation of the construction site were raised. The conflicting evidence received regarding them is discussed below. An area of concern was the de-watering plan for the project. Everyone agrees there will be some water seepage into the construction site that will have to be pumped out. The parties disagree regarding the amount of water that will have to be removed. Their estimates of amount of water to be removed vary because their estimates of size and over-all depth of the site vary. Petitioners presented credible evidence that a potential exists for the construction site to have a large quantity of water because of its location between two sources of surface water (the By-Pass Channel and Barge Canal), because of the makeup of the subsurface, and because of the depth of the construction. Hy Power credibly represents that if excessive groundwater is found, it can address the adverse impacts through its de-watering plan that would have to be filed with FERC and DEP. The technology exists to address the de-watering of the project. Such plans are routinely considered by DEP after a construction permit is issued and before de-watering occurs. There is very little evidence of sinkhole activity in the project area, and the construction activities are not expected to cause any sinkhole activity. NOISE POLLUTION Mr. Bitter expressed concerns that FERC would require the facility to install a very loud siren that would result in sudden noise adverse to the well-being of neighbors. Mr. Bitter is unfamiliar with FERC siren requirements at run-of the-river hydroelectric facilities. In contrast, Mr. Volkin, who has substantial experience in this area, testified that the only alarm device that would be required would be for the protection of the workers during construction. The purpose of the alarm is to warn persons below a dam spillway of a change in the volume of water being let out of the impoundment. In the case of a run-of-the-river facility, the volume is near constant, changing only gradually. Therefore, even if a warning siren had to be installed its use would be limited to significant changes in flow or testing. This would not constitute a nuisance. Further, the facility is located in the vicinity of the Crystal River Nuclear Power Plant which has its own warning sirens. It would be prudent to make any warning devices required for this structure significantly different from those at the nuclear plant and to limit their use. DAM SAFETY AND FERC REVIEW In reviewing whether Hy Power’s applications complied with the relevant permitting criteria, the DEP took into consideration the review of the facility already performed by FERC. FERC will also be responsible for reviewing the project as it is being constructed. Mr. Edwards also raised concerns about the structural stability of the By-Pass Dam itself. This has been a subject of concern by those responsible for the dam, and a survey of the structure was conducted in 1993, referred to as the Greiner Report. The Greiner Report identified specific maintenance problems that have been and are being addressed by the DEP. However, DEP’s maintenance plan does not address specifically the possibility that the weight of the dam over time has caused some shifting in the dam. Hy Power has only a few core borings and only one at the location of the generator. Hy Power is using the ACOE’s original borings, as confirmed by several new ones, to develop its preliminary plans. The DEP considered FERC and the ACOE as responsible agencies for determining the structural integrity of the dam. DEP has taken FERC’s review of this facility into consideration as part of DEP’s own permitting review. It is normal for DEP to rely on outside sources and agencies for assistance in determining compliance with DEP permitting criteria such as public health and safety, and it is reasonable for DEP to do so in this instance. Most states do not have the full capability to evaluate dam safety, and so they rely on FERC and ACOE. On April 21, 1997, the project received a conduit exemption from FERC. The application process is illustrated in Hy Power Exhibit 11. Hy Power submitted to DEP detailed information about the dam, the associated structures and the proposed project which had been reviewed by FERC and the ACOE, the two agencies in the United States who are responsible for dam structure design, control, and administration. Included in the package was the Greiner Report and Hy Power’s review of it. FERC evaluated the project, the Inglis By-Pass Dam structure, and the proximity of the project to the Dam in relation to structural impact, upstream and downstream impacts, water quality, and environmental issues. Mr. Edwards raised concerns regarding the ability of the limestone bedrock to sustain additional construction in the area of proposed construction. This is a material issue in the controversy which impacts several aspects of the proposed construction. Mr. Edwards pointed out that the barge canal channel was constructed with the use of explosives that caused a fracturing of limestone bedrock. He pointed out that the steel panels, which Hy Power proposes to drive into the bedrock to construct the water retention structure necessary to excavate the hole into which the turbine and powerhouse would be placed, will further fracture this bedrock. This creates two potential dangers. It could permit water to move under and around the bottoms of the panels, potentially scouring the loosened material from the base of the panels and making them unstable and subject to failure. It could weaken the entire southern wing of the existing spillway dam. Mr. Edwards opined that this could result in catastrophic failure of the dam or the coffer dam. Such a failure would cause major destruction and loss of life to those persons living and working in and along the lower Withlacoochee River. Hy Power presented rebuttal evidence that it could and would, if necessary, inject concrete into the limestone to stabilize it and avoid the concerns raised by Mr. Edwards. FERC specifically evaluated concerns raised by project opponents over the poor physical condition of the By-Pass Channel Spillway structures, relying particularly on the 1993 Greiner Report. FERC noted that the DEP had entered into a contract to correct any deficiencies listed in the Greiner Report, which "did not conclude that the deficiencies at the By-Pass Spillway threaten downstream life and property." The FERC review concluded that the dam was safe. To ensure safety, FERC is requiring that Hy Power do a complete stability analysis of the dam prior to any construction. Articles 301 and 302 of the FERC exemption ensure that all final drawings and specifications be submitted to FERC prior to construction, along with a supporting design report consistent with FERC’s Engineering Guidelines; that FERC can require changes to assure a safe and adequate project; and that Hy Power must also submit approved coffer dam construction drawings and specifications at least 30 days prior to starting construction. FERC has its own engineering staff who will go to the site and do their own analysis, along with the ACOE, of the dam and structures, prior to any construction commencing. This is a detailed design review evaluation so that the latest information on the dam will be made known immediately prior to construction, and will prevent any catastrophic event from happening. Under FERC procedures, FERC requires the applicant to obtain the DEP permits prior to requiring applicant to submit more detailed construction designs for FERC's consideration. These more detailed designs in turn will be subject to further review by DEP and FERC. It is assumed that Hy Power will comply with the post- permitting procedures and requirements, and will present complete, detailed construction drawings for FREC and DEP approval. Hy Power’s failure to complete the process would result in denial of a construction permit.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law set forth herein, it is RECOMMENDED: That the DEP enter a Final Order that issues the two permits challenged in this proceedings, WRM Permit No. 38-237096-3.001 and MSSW Permit No. 38-0129249-002, subject to the conditions contained in the Intents to Issue in the respective WRM and MSSW Permits and as described in the Recommended Order. DONE AND ENTERED this 2nd day of March, 2000, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 2nd day of March, 2000. COPIES FURNISHED: Daniel H. Thompson, Esquire Berger Davis & Singerman 215 South Monroe Street, Suite 705 Tallahassee, Florida 32301 Andrew Zodrow, Esquire Department of Environmental Protection 3900 Commonwealth Boulevard Mail Station 35 Tallahassee, Florida 32399-3000 John S. Clardy, III, Esquire Crider Law Firm Plantation Point 521 West Fort Island Trail, Suite A Crystal River, Florida 34429 Teri Donaldson, General Counsel Department of Environmental Protection 3900 Commonwealth Boulevard Mail Station 35 Tallahassee, Florida 32399-3000 Kathy Carter, Agency Clerk Department of Environmental Protection 3900 Commonwealth Boulevard Mail Station 35 Tallahassee, Florida 32399-3000 Bernard M. Campbell Bessie H. Campbell 245 Palm Street Post Office Box 159 Inglis, Florida 34449 Sarah E. Berger Post Office Box 83 Inglis, Florida 34449
The Issue The issue is whether Respondent South Florida Water Management District is entitled to an environmental resource permit from Respondent Department of Environmental Protection to construct a weir in Collier County on the Merritt Canal about 3600 feet south of Interstate 75 for the purpose of extending the hydroperiod on the Florida Panther Federal Wildlife Refuge.
Findings Of Fact Proposed Permit On April 17, 1996, Respondent South Florida Water Management District (District) filed with Respondent Department of Environmental Protection (DEP) an application for the construction of a water-control structure in the Merritt Canal. The stated purpose of the structure, which is a weir, is to extend the hydroperiod of the Lucky Lake Strand. The application states that the District is the owner of a drainage easement covering the land proposed as the site of the weir. According to the application, Collier County, in which the Merritt Canal lies, originally held the drainage easement. The District later adopted the Merritt Canal as a "Works of the District," which transferred operational responsibility for the canal from the County to the District. (A sub-unit of the District, the Big Cypress Basin Board has jurisdiction for District projects of the type involved in this case. References to the District shall include the Big Cypress Basin Board.) The application requests a permit to construct an adjustable sheet-pile weir within the 80-foot Merritt Canal right-of-way. The application accurately describes the Merritt Canal as a Class III waterbody that is not an Outstanding Florida Water. By Notice of Intent to Issue Environmental Resource Permit dated January 29, 1997 (NOI), DEP proposed to issue an environmental resource permit (ERP) to the District for the construction of the Lucky Lake Strand Water Control Structure. The structure would be an adjustable weir with operating levels of 7.0 feet National Geodetic Vertical Datum (NGVD) in the wet season and 9.5 feet NGVD in the dry season. As stated in the NOI, the Merritt Canal is 12 miles long and one of four main north-south canals within a larger system of 183 miles of canals--all Class III waters-- constructed in the 1960s by Gulf American Land Corporation to drain wetlands for development of the Southern Golden Gate Estates area. These four north-south canals drain water south through the Faka Union Canal and into Faka Union Bay, which is part of the 10,000 Islands/Cape Romano Aquatic Preserve. The preserve contains Class II Outstanding Florida Waters. The NOI notes that the U.S. Fish and Wildlife Service (FWS) and District entered into an agreement in September 1994 to construct two weirs in the Merritt Canal "to partially restore historic hydroperiods into two major wetland features within the federally owned lands of the USFWS Florida Panther National Wildlife Refuge, Lucky Lake Strand and Stumpy Strand (Class III Outstanding Florida Waters)." As stated in the NOI, these federally owned wetlands constitute over 3000 acres of cypress and mixed swamps, wet prairies, marshes, and ponds. The NOI relates that FWS staff proposed the project to counteract "subtle vegetational changes and accelerated pond draw-downs [that] were taking place in the strands as a result of shortened hydroperiods caused by a three-year drought, I-75 widening activities, and subsequent canal modifications." The NOI correctly states that water in the wet season historically flowed southerly through Stumpy Strand, Lucky Lake Strand, and Picayune Strand, before entering the larger Fakahatchee Strand. Lucky Lake Strand narrows to 1000 feet at its south end, which is at Interstate 75 (I-75). The NOI accurately asserts that the construction of the Merritt Canal and the I-75 borrow canals combined to draw down the upstream wetlands, thus reducing their hydroperiods. The effect of the Merritt Canal is reportedly significant because of its confluence with the southern tip of Lucky Lake Strand. The NOI discloses that the original agreement between the District and FWS called for the construction of two weirs south of I-75, one at the headwaters of the Merritt Canal and another about 1800 feet downstream in the Merritt Canal. However, the proposed permit eliminates one weir, whose function was performed by plugs in the north I-75 borrow canal, and relocates the remaining proposed weir about 3600 feet south of I-75, rather than immediately south of I-75, reportedly because of difficulties in accessing the proposed weir at I-75. The NOI states that the Merritt Canal is within the 80-foot drainage easement originally acquired by Collier County. The uplands adjacent to the weir are reportedly owned by DEP. The NOI describes the proposed weir as a sheet pile weir with adjustable partitions. As proposed, during the wet season, the District would start to open the gates at 7 feet NGVD and start to close them at 6.5 feet NGVD. During the dry season, the District would start to open the gates at 9.8 feet NGVD and start to close them at 9.3 feet NGVD. Also, the proposed permit would anticipate that the District would dredge the canal to a trapezoidal cross-section having a bottom elevation of -1.5 feet NGVD and a width of about 49 feet at the weir and transitioning to 20-foot bottom widths upstream and downstream of the weir. According to the NOI, the purpose of the proposed weir is to reduce over-drainage of the upstream wetlands in Lucky Lake and Stumpy Strands by extending the hydroperiod further into the dry season. No increase in water levels during the wet season is expected. Although the historic extended hydroperiod is not expected to be achieved, the weir structure is expected to improve current conditions to the upstream wetlands. Holding back water in these wetlands [is] also expected to improve water quality downstream by removal of excess nutrient, sediments, and chemicals. Wildlife values are expected to be enhanced in preferred waterfowl and wading bird habitat, including areas for the endangered wood stork and threatened bald eagle. Forage areas are also expected to be improved for white-tailed deer and other wildlife species which are essential prey for the endangered Florida panther. Aquifer recharge is also expected as the ground water reserves will be raised by raising the canal water levels, while maintaining the existing level of flood protection for adjacent private landowners. The NOI states that FWS will monitor post- construction environmental conditions and will recommend to the District adjustments to the weir elevations. The NOI reports that the District will be the "main operator" of the weir to adjust elevations to maintain flood control for adjacent lands. The NOI adds: The project was designed so as not to decrease the peak discharge capacity in the canal or increase flood stages in the Upper Merritt Canal watershed. Hydraulic modeling by the District indicates that there will be no additional surface water flooding to private property as a result of the project, and the current level of service will be maintained. Based on this analysis, the NOI concludes that the District has provided reasonable assurance that the proposed activity will comply with Part IV, Chapter 373, Florida Statutes, and the underlying rules, including Chapter 62-330 and Rules 40E-4.301 and 40E-4.302, Florida Administrative Code. The NOI states that the District has demonstrated that the activity is clearly in the public interest, pursuant to Section 373.414(1)(a), Florida Statutes. The proposed permit conforms to the NOI's description. Specific Condition 13 sets the fixed crest of the proposed weir at 4.5 feet NGVD and the width of the weir at 48 feet. Although the proposed permit is nowhere explicitly conditioned on a successful wetland enhancement project, Specific Condition 12 states that "the" wetland enhancement project shall be considered successful if, after five years, Lucky Lake Strand and Stumpy Strand display wetland- appropriate vegetation and the "viability of adjacent upland sites [is] not negatively impacted by increased ground water or surface water levels resulting from the authorized project." Specific Condition 17 requires the District to document the operation of the gates and notify DEP, within three days, whenever any of the permitted elevations are exceeded. Annually, the District must supply DEP detailed data and analysis of the operational history of the weir, including "reasons for going to nonstandard operation and a narrative description of the effectiveness of initiating the nonstandard operation to include areas not flooded (or flooded, if applicable) and other associated impacts." During the final hearing, the District proposed, and DEP approved, a modification of Specific Condition 18. As modified, Specific Condition 18 requires the District to "monitor the effects of the operation" of the weir, pursuant to the revised monitoring plan incorporated by reference into this condition. The revised monitoring plan, which is dated November 12, 1997, alters the original monitoring plan by adding two sites for the installation of water-table wells. One of the new sites (Site A) is 1200 feet north of the weir, and the other new site (Site B) is 1200 feet north and 2000 feet west of the weir. These are the only water-table monitoring devices. Five other sites are surface-water monitoring sites. Three of the these sites are in the Merritt Canal: one immediately upstream of the weir, one immediately downstream of the weir, and one farther upstream at I-75. The other two surface-water monitoring sites are farther upstream. One is in Lucky Lake about 1.75 miles north of the weir, and the other is about three miles northeast of Lucky Lake. Three other sites are rainfall-monitoring sites. Two rainfall-monitoring sites are north of the weir. The site just north of I-75 is at the Ford Motor Company test track, which is immediately west of Lucky Lake and Stumpy Strands, and the site more directly north of the Merritt Canal is about ten miles north of I-75. Specific Condition 18 states the frequency with which someone (presumably a District employee or contractor) is to collect the data from these 10 monitoring sites, but contains no performance criteria. The monitoring plan thus commits the District to collecting data, but not to analyzing the data, nor, more importantly, taking specified actions when certain performance parameters are exceeded. Neither the revised monitoring plan nor the application in any way commits the District to using the data collected from the revised monitoring plan to develop a set of criteria, based on rainfall amounts, groundwater levels, and surface water levels, to fine-tune the operation of the gates so as not to exacerbate present flooding. Nothing in the revised monitoring plan or the application suggests that the District will use the data collected from the revised monitoring plan to identify more clearly the relationships between storm events and water levels to understand better the relationship between flooding, on the one hand, and the existence of the proposed weir and the operation of its gates. Faka Union Canal Watershed and Southern Golden Gate Estates What is now known as the Faka Union Canal Watershed historically covered about 234 square miles. It ran from an area about four miles north of what is now known as Immokalee Road south in a widening expanse that approached 12 miles at what is now U.S. Route 41. It then ran south until it emptied into the Gulf of Mexico at Faka Union Bay in what is now the Cape Romano Ten Thousand Islands State Aquatic Preserve east of Marco Island. Land alterations due to road and canal construction and urban and agricultural development eventually reduced the Faka Union Canal Watershed to about 189 square miles. Most noticeably, these changes narrowed the drainage area at U. S. Route 41 from almost 12 miles to little more than the width of the Faka Union Canal. The Faka Union Canal Watershed is characterized by low relief and poorly defined drainage patterns. At the north boundary of the watershed, which now ends at Immokalee Road, the elevation reaches 24 feet NGVD. Twenty-eight miles to the south, at the outlet of the basin, the elevation is two feet NGVD. The water flows generally in a southwest direction. Historically, water ran slowly through the watershed in sheetflow several miles wide and a few inches to a few feet deep. Drainage concentrated in slightly lower sloughs and strands, which generally dried out in the dry season. Historically, the watershed featured flat, swampy lands containing cypress trees, islands of pine forests, and wet and dry prairies. Prior to development, much of the watershed remained inundated by several feet of water during the five- month wet season (roughly from mid-May through mid-October). In this undisturbed state, the prominent features of the watershed were the storage of runoff in depressional areas, attenuated peak flows, and a longer hydroperiod into the dry season. In the early 1960s, Gulf American Land Corporation subdivided a 173 square-mile area in Collier County into many thousands of lots as small as 1.25 acres. The development was Golden Gate Estates. The portion of Golden Gate Estates south of I-75 is known as Southern Golden Gate Estates. Golden Gate Estates is west of the Merritt Canal. Gulf American's purpose in dredging the 183-mile canal system was to allow it to market as land, available for continuous occupation, subdivided lots superimposed over an area that was land during the dry months and water during the wet months. To achieve this objective, Gulf American Land Corporation constructed one group of canals that drains to the west and another group of canals drains to the south into the Faka Union Canal. Gulf American dredged the canals draining to the south, which form the Faka Union Canal System, from 1968 through 1971. Four north-south canals spaced two miles apart drain Southern Golden Gate Estates and the portion of the Faka Union Canal Watershed north of I-75. From west to east, the canals are the Miller Canal, Faka Union Canal, Merritt Canal, and Prairie Canal. Only the two westerly canals run north of I-75. The Miller Canal extends almost seven miles north of I-75, and the Faka Union Canal extends about 14 miles north of I-75. The Merritt Canal starts in the immediate vicinity of I-75, and the Prairie Canal starts about two miles south of I-75. The average excavated depth of the four canals is about ten feet from the top of the bank to the bottom of the channel. Given the relatively close proximity of the water table to the surface in this area, excavation to these depths thus established a direct hydraulic connection with the surficial aquifer. The canals are large, ranging from 45 to over 200 feet wide. Although unable to convey without flooding the water from even a ten-year storm event, which is the level of service standard set by Collier County for Southern Golden Gate Estates, the Faka Union Canal system has nonetheless severely impacted the water resources of Collier County. According to the Hydrologic Restoration of Southern Golden Gate Estates, prepared in February 1996 by the Big Cypress Basin Board (Southern Golden Gate Estates Restoration Plan): . . . Construction of the canals has led to both increased volumes and rates of runoff from the watershed which has had lasting effects on the area's water supply, vegetation, wildlife, and coastal estuaries. The canals intercept large volumes of surface and subsurface flow and quickly divert them to the Faka Union Bay and the Ten Thousand Island Estuary of the Gulf of Mexico resulting in less surface water available for storage. Since groundwater recharge is achieved primarily through infiltration from surface detention storage, reduced groundwater recharge threatens both groundwater supply for the region and the natural barrier to salt water intrusion. Continued overdrainage has caused an eventual lowering of the groundwater table. This has caused vegetation to change from wetland dominant to transitional and upland systems with invasive exotic species. The extreme dry conditions caused by overdrainage have resulted in more frequent and more intense wildfires with a greater destructive impact on vegetation. The increased runoff rate has had severe effects on the receiving estuaries. Historically, the estuaries would receive broad, slow moving sheets of water that were capable of carrying essential nutrients but not high sediment loads. This has been replaced with point loads of freshwater at the Faka Union Canal outlet that push salinity levels down and result in freshwater discharge shocks throughout the Ten Thousand Island Estuary. The increased runoff rate drains the area quickly and does not allow the hydroperiods necessary to sustain wetland vegetation. . . . Southern Golden Gate Estates Restoration Plan, pages 8-9. The major roadway affecting the Faka Union Canal Watershed is State Road 84, which was a two-lane road constructed in 1966. In 1990, construction was completed transforming State Road 84 into four-lane I-75. These road projects have hastened drainage of the lands to the north of I-75 and east of the Faka Union Canal. The land north of the Merritt Canal is largely undeveloped. If one were to extend the Merritt Canal due north of I-75, it would run through the middle of Lucky Lake Strand and much of Stumpy Strand, which is immediately to the north of Lucky Lake Strand. Agricultural land owned by Collier Enterprises is just north of the Ford Motor Company test track and immediately west of Lucky Lake Strand. Agricultural land owned by Baron Collier Company is immediately north of Stumpy Strand. This imaginary extension of Merritt Canal would mark the west boundary of the Florida Panther National Wildlife Refuge, which was established in June 1989. The Florida Panther National Wildlife Refuge constitutes 26,000 relatively undisturbed acres immediately north of I-75. Intervenor Clifford Fort owns property south of the refuge on the south side of I-75. The Florida Panther National Wildlife Refuge features mostly wetlands, oak hammocks, pine flatwoods, and prairies. The refuge receives runoff from stormwater and possibly agricultural pumping of the water table from the adjacent farmland. In addition to draining into the headwaters of the Merritt Canal near the southwest corner of the refuge, the refuge also drains into the northerly borrow canal running along the north side of I-75. In the vicinity of the Merritt Canal, the four borrow canals running along the north and south sides of I-75, on both sides of the Merritt Canal, drain in the direction of the Merritt Canal. Listed species using the Florida Panther National Wildlife Refuge include the Florida panther, Florida black bear, wood stork, roseate spoonbill, limpkin, and Eastern Indigo snake. In October 1995, an inordinate amount of rain fell in the area. Attracted by the increased water depths, which more closely approximated historic conditions, 75 wood storks nested in the Lucky Lake Strand; in drier years, wood storks do not nest in the strand. Lucky Lake Strand occupies the southwest corner of the Florida Panther National Wildlife Refuge. Lucky Lake and two other ponds are present in this area. When full, Lucky Lake and one of the ponds are about 50 meters wide, and the third pond is about half of this width. During the dry season, a person can throw a stone across any of the ponds. Historically, Lucky Lake and Stumpy strands passed surface water into the Picayune Strand, which is west of the Merritt Canal and south of I-75, from which the water ran into the Fakahatchee Strand. Lucky Lake Strand presently narrows to about 1000 feet at I-75. The hydrologic connection between the outlet of Lucky Lake Strand and the headwaters of the Merritt Canal has contributed significantly to the overdrainage of these two strands, which occupy a significant area within the federal refuge. The FWS wildlife biologist stationed at the Florida Panther National Wildlife Refuge reported in a habitat assessment report prepared in August 1996 that four ponds in the strand dried out by December so that they could not sustain fish or provide feeding habitat for birds. Permitting Criteria Public Health, Safety, or Welfare or Others' Property One of the main disputes between the parties is the affect of the proposed weir on flooding. This case is largely about flooding or, more generally, the amount of water to be stored for a specified period of time. Petitioners and Intervenors fear that the District's effort will cause flooding to areas south of I-75 and east and west of the Merritt Canal. Occupying property within a vast area whose natural drainage patterns have been greatly disrupted, Petitioners and Intervenors justifiably fear the ravages of flood and fire. Although this area was undoubtedly subject to these hazards prior to man's alteration of the natural landscape, large- scale alterations to natural drainage in Southwest Florida have artificially heightened the risk presented by these natural hazards. Destructive flooding follows the inhabitation of areas historically devoted to the storage of considerable volumes of water; the flooding is exacerbated where, as here, natural drainage features have been replaced by artificial facilities that are inadequate for both the natural flows and the new, artificial flows generated by development. Although inadequate for the natural and artificial flows generated by even design storm events, the artificial drainage facilities nevertheless change historic drainage rates, accelerating the rate and volume of natural drainage and shortening the hydroperiod. In this manner, the artificial drainage facilities contribute to the desiccation of previously saturated soils and foster conditions suitable for dangerous fires. Initially, Petitioners and Intervenors contend that the District seeks approval of the proposed weir as an indirect means of implementing the Southern Golden Gate Estates Rehydration Plan. Little evidence supports this concern. The Southern Golden Gate Estates Rehydration Plan outlines several alternatives for the proposed rehydration of Southern Golden Gate Estates. The preferred alternative does not call for a weir at the proposed location. The purpose of the proposed weir is to rehydrate an area north of the Southern Golden Gate Estates. As discussed below, the role of the proposed weir in rehydrating Southern Golden Gate Estates appears insubstantial to the point of nonexistent. Focusing on the location of the proposed weir over half of a mile downstream from the southernmost part of the area intended to be rehydrated, Petitioners and Intervenors dispute the stated purpose of the project, focusing on the District's earlier relocation of the proposed weir from positions just north and then just south of I-75 to its present position a half-mile farther to the south. The District did nothing to allay this concern of Petitioners and Intervenors when its employees could not provide a reasonably detailed explanation of the process by which someone moved the proposed site to the south. From the District's evidence, one would infer that the decision to relocate the proposed weir to the south spontaneously emerged, without human sponsor, in the course of bureaucratic decisionmaking. The District asserted that the northerly sites were impractical due to access problems. However, the District made little, if any, real effort to see if the Department of Transportation would allow access to these more northerly sites--one of which the District might be able to access without the consent of the Department of Transportation. The record does not reveal why the District relocated the proposed weir to its present location, considerably south of its initial two locations at I-75. Again, though, the evidence does not support the contention of Petitioners and Intervenors that the relocation decision was part of a private plan among District employees to incorporate the proposed weir as part of a more ambitious project to rehydrate Southern Golden Gate Estates. Nor does the evidence establish, as Petitioners and Intervenors contend, that the relocation decision was driven by the concerns of three influential landholders to the north of I-75--Collier Enterprises, Barron Collier Company, and Ford Motor Company. These three landholders approved the proposed weir in its present location over a half-mile to the south of its original locations and may have expressed concern that the original locations at I-75 would unreasonably raise the risk of flooding their land and business and agricultural activities to the north of I-75. If the District's real reason for relocating the proposed weir was due to objections from these landowners to the north of I-75, this reason would not itself help Petitioners and Intervenors. If the District acceded to the demands of these landowners to the north, it does not necessarily follow that the District lacked confidence in its flood calculations. A relocation decision under these circumstances would have as likely reflected political, as scientific, concerns. Additionally, if the District moved the proposed weir at the insistence or suggestion of the landowners to the north, any flooding concerns voiced by these landowners raise different issues from the flooding concerns raised by Petitioners and Intervenors. Owners of land immediately to the north and west of the federal refuge are more directly within the area of the intended effects than are Petitioners and Intervenors. More substantially, Petitioners and Intervenors claim that the proposed activity is so negligently designed or will be so negligently operated as to result in heightened and more frequent flooding of areas to the west and east of the proposed weir. The District's record in operating weirs in Collier County is not flawless. In recent years, the District constructed and maintained a weir with unlawfully high gates and did not correct the noncompliant water-control structure for several months after first learning of the violation. However, this appears to have been an isolated violation. The division of responsibility between the District and Collier County for the maintenance of drainage canals is based on whether the canal is a primary or secondary drainage facility. The District has assumed responsibility for all of the primary drainage facilities in Collier County. Surprisingly, though, the record reveals no master map or index of the primary drainage facilities and at least the larger nonprimary drainage facilities. However, Petitioners and Intervenors failed to show that any confusion concerning maintenance responsibilities that may exist between the District and Collier County would appreciably raise the probabilities that the District would operate the proposed weir in such a way as to exacerbate present flooding concerns. The District and Collier County agree that the District has jurisdiction over the Merritt Canal. Petitioners and Intervenors have also failed to show that any confusion concerning secondary-drainage contributions that may exist between the District and Collier County would have a substantial impact on the successful operation of the proposed weir. The most significant claim raised by Petitioners and Intervenors asserts that the District failed to provide reasonable assurance that the proposed weir would not exacerbate flooding. Although the weir gates would be closed only during the dry season, the proposed activity requires analysis of the risk of heightened water elevations upstream of the proposed weir. In theory, flooding could result from the effects of the weir even when the gates are open, as well as the possibility of an extreme storm event during the dry season. Expert witnesses on both sides clashed over whether the design of the proposed weir was sufficient not to exacerbate existing levels, rates, and frequencies of flooding of adjacent uplands. The crucial feature over which the experts disagreed was the spoil banks running along the canal. When the Merritt Canal was constructed, the spoil was dumped along the banks. In the ensuing years, vegetation colonized and stabilized the spoil banks, which now function as levees. The expert witness called by Petitioners and Intervenors disregarded the spoil banks in his calculations. His lack of confidence in the opposing expert witness's use of top-of-bank elevations was partly justified for the reasons stated below. Although a minor point, part of the argument of Petitioners and Intervenors' expert witness proved too much by asserting that levees cannot maintain water levels higher inside the levee than the existing ground elevation outside the levee. On the other hand, in showing that the proposed weir would not exacerbate flooding, the District's expert witness relied, not entirely justifiably, on the top-of-bank elevations. The District took only spot elevations of the spoil bank and then assumed that these elevations prevailed along the entire 3600 feet of canal upstream of the weir. The District did not inspect the upstream banks for unpermitted culverts, of which at least one was discovered during the lengthy hearing in this case. There is a possibility of material differences in elevations along the spoil banks. These spoil banks were not constructed to a specified elevation; they were an excavation byproduct that was haphazardly deposited beside the excavated canal. Additionally, the record suggests that this general area has been the site of unpermitted works, such as the installation of a culvert and creation of unpermitted canal plugs. In the months over which the hearing took place, Petitioners and Intervenors alertly found a culvert breaching the spoil bank upstream of the proposed weir. At least one of their representatives demonstrated superior familiarity with the spoil bank over the familiarity demonstrated by the District's representatives. It is a fair inference that, if the spoil bank was substantially missing at any point upstream of the proposed weir, Petitioners and Intervenors would have brought such evidence to the hearing. The absence of such evidence, coupled with the reasonable inferences that may be drawn from the concededly more cursory investigation of the site by the District, precludes a finding that the spoil bank is substantially missing at any material point so as to warrant the use of ground elevations, as used by the expert witness called by Petitioners and Intervenors. At best, from the perspective of Petitioners and Intervenors, the record supports the finding that the spoil banks may not be as continuously as high as the District posits, but they are not nearly as low (i.e., nonexistent) at any point as Petitioners and Intervenors contend. The two experts also disagreed over two subordinate inputs used in running the flood calculations. The expert called by Petitioners and Intervenors claimed that initial tailwaters (i.e., water elevations downstream of the weir) in excess of 8.53 feet were appropriate. Although the canal has experienced historically higher tailwaters than 8.53 feet, the expert did not explain adequately why such higher tailwaters should be used in running the model, especially since flood calculations are not used to predict flooding conditions in all storms, such as a 1000-year storm. Absent a showing that tailwater in excess of 8.53 feet would be present at the relevant time preceding or during the design storm event, the expert called by Petitioners and Intervenors failed to show why the District's tailwater input was unreasonable. On the other hand, the District's expert claimed that the model required an adjustment to the friction factor or Manning's N coefficient. This adjustment, which decreased the friction factor by an order of magnitude, approximated a bottom that was many times smoother than the actual bottom of the Merritt Canal. The District's expert did not explain adequately why the lower friction factor should be used in running the model, and he frankly did not demonstrate the same familiarity with this friction factor as did the expert called by Petitioners and Intervenors. The most likely inference is that the District's expert erred in making this adjustment. There was another controversy between the parties regarding a subordinate input for the flooding calculations. Petitioners and Intervenors raised the possibility that agricultural discharges from the Collier properties adjacent to the federal refuge, which the District ignored in its calculations, might further undermine any assurances as to flooding. This could have been useful information if developed in the record, but the record permits no basis to quantify the value of this additional discharge or ascertain its timing relative to wet and dry seasons and storm events, if in fact this agricultural discharge takes place at all. Also, offsetting any such discharge would be two factors: the District ran its calculations assuming a runoff rate 25 percent greater than that appropriately used by the Florida Department of Transportation for modeling the design storm event, and the District ignored the plugs in the I-75 borrow canals, which attenuate the runoff into the Merritt Canal. Although Petitioners and Intervenors incorrectly inputted ground elevation in place of the top-of-bank elevation--when the best elevation is somewhere in between these two values--their expert's calculations are useful for illustrating a scenario that, for this reason, exceeds the worst-case scenario. Again, this is an illustration of a scenario that predicts greater flooding than reasonably should be predicted because, in actuality, the restraining elevation is higher than ground elevation. Using the 8.53-feet initial value for tailwater, Petitioners' Exhibit 27 illustrates the different water elevations resulting from running the model with and without the excessive reduction of the friction factor. Petitioners Exhibit 27 illustrates the effect of the design storm on upstream water elevations with the gates open. Petitioners Exhibit 27 ignores the spoil banks and instead uses prevailing ground elevations. At the site of the proposed weir, the canal bottom is at about -1.5 feet NGVD. The proposed weir would add fixed barriers up to an elevation of 5.0 feet NGVD; the adjustable gates would, when closed, extend the barrier from 5.0 feet NGVD to 9.5 feet NGVD. Approximate existing ground elevation averages about 10 feet NGVD downstream of I-75, with one dip to below 9 feet NGVD about 600 feet downstream of I-75. For about 6000 feet upstream of I-75, where there is no spoil bank whatsoever, the average ground elevation, outside of the slough, is about 13 feet. The slough bottom in this area gently slopes from about 9 feet NGVD to 10 feet NGVD. Ignoring the spoil bank, Petitioners Exhibit 27 predicts flooding in two major areas in the design storm event, even with the gates open. One of these is about 300 feet long, starting about 400 feet downstream of I-75. The other is at least 300 feet long, starting near the northern extreme of the modeled area and running off the modeled area. The District did not survey in detail the spoil bank along the 300 feet downstream of I-75. There is no spoil bank upstream of I-75 because there is no dredged canal. The water elevation about 400 feet downstream of I-75 would be almost one foot greater than the ground elevation. The water elevation about 6000 feet upstream of I-75 will be as much as half of a foot greater than the ground elevation. At the more downstream point, the actual water elevation would exceed the District's projection by nearly three-quarter of one foot. At the more upstream point, the actual water elevation would exceed the District's projection by over 1.5 feet. Although the record could have been better developed on this important point, there is reasonable assurance that the existing spoil-bank elevations are sufficient to contain these flood elevations predicted by the expert called by Petitioners and Intervenors. Petitioners and Intervenors claimed that the District could achieve its stated purpose of extending the hydroperiod in the Florida Panther National Wildlife Refuge without increasing the risk or extent of flooding of adjacent uplands. Petitioners and Intervenors suggested that the District repair an existing plug in the Merritt Canal just south of I-75. (This "plug" is actually the original ground surface, which evidently was undisturbed during the construction of I-75. Given the excavation of canals on both sides of what is now a narrow strip of earth, the land resembles a plug, and this recommended order refers to it as a plug, although this term is descriptive only of the feature's present appearance, not its method of creation.) There are actually six plugs--again, in the broad sense of the word--in the vicinity of the junction of the Merritt Canal and I-75. Two plugs interrupt the flow into the Merritt Canal of the borrow canals to the north of I-75. Two plugs likewise interrupt the flow into the Merritt Canal of the borrow canals to the south of I-75. The last two plugs are in the Merritt Canal, a few feet north and south of I-75. Repairing the plug immediately south of I-75 would raise the water elevation by about 1.3 feet under the I-75 bridge. By about 2000 feet upstream of I-75, there is no significant difference between the water elevation using the model of Petitioners and Intervenors' expert for the proposed weir 3600 feet downstream of I-75 and the water elevation for the proposed plug repair just south of I-75. Repairing the plugs would have reduced the water elevation downstream of I- 75 by less than one half of a foot. Petitioners, Intervenors, and their expert have proposed a promising alternative to the proposed weir. The alternative appears to serve the stated purpose of the proposed activity at least as well as the proposed weir would, if not somewhat better due to its closer proximity to the targeted federal refuge, and the alternative project would cost much less to construct, maintain, and operate. The restorative nature of the work would probably relieve the District of the necessity of obtaining a permit. Perhaps the prospect of such work might motivate other state and federal agencies to grant the District access to the area at I-75 to build the weir at one of its first two locations. However, the issue is whether the District has provided reasonable assurance for the activity that it has proposed. As to flooding, the District has provided reasonable assurance that the proposed activity will not exacerbate flooding during the design storm events or even more severe storm events. Even assuming an absence of reasonable assurance as to flooding, the first criterion requires consideration of whether the proposed activity would adversely affect the public health, safety, and welfare or the property of others. Extending the hydroperiod of the federal refuge protects the property of others by reducing the period of time that the turf is dried out. This provides a wide range of environmental protection, including protection against the risk of fire caused by excessive drainage, for the federal refuge and other property in the area. Retarding the artificially high rate of drainage will improve water quality in at least two respects. The proposed weir will retard and reduce the nutrients conveyed down the canal and into the estuary into which it eventually empties. The proposed weir will also tend to restore somewhat the rate and timing of historic freshwater inputs on which the viability of the estuary and its inhabitants depends. Concerns about public health, safety, and welfare, as well as the property of others, cannot be severed from these broadscale environmental benefits to be derived from the proposed activity. Public health concerns are tied to these considerations. Thus, even if the District had failed to provide reasonable assurance as to flooding alone, the District has provided reasonable assurance that, on balance, the proposed weir will not adversely affect the matters set forth in the first criterion. Conservation of Fish and Wildlife, Including Endangered or Threatened Species, or Their Habitats The proposed weir will serve the conservation of a wide range of flora and fauna, as well as their wetlands habitat, within the targeted federal refuge. These species include listed species. The evidence does not support a finding that extending the hydroperiod of the federal refuge would in any way disturb the Florida panther. Navigation, Flow of Water, or Harmful Erosion or Shoaling The proposed weir will have not adversely affect navigation or the flow of water within the canal, and it will not cause erosion or shoaling. Fishing or Recreational Values or Marine Productivity in the Vicinity of the Activity The proposed weir will not adversely affect fishing or recreational values or marine productivity in the vicinity of the proposed weir. To the contrary, the proposed weir will enhance these values in the immediate vicinity of the proposed weir and downstream at the estuary at the mouth of the Merritt Canal. Temporary or Permanent Nature The proposed weir will be of a permanent nature. Significant Historic and Archaeological Resources The record provides no basis for a finding that the proposed weir jeopardizes significant historic and archaeological resources. Current Condition and Relative Value of Functions of Areas Affected by the Proposed Activity The federal refuge is functioning well environmentally, despite the adverse impact of dramatic disruptions of the natural drainage regime. The value of these functions is high. Likewise, the receiving estuarine waters are functioning well, despite the adverse impact of dramatic disruptions of the natural drainage regime. Extending the hydroperiod of the federal refuge will partially offset these historic disruptions. Thus, the proposed weir will assist in the functioning of natural systems that are now functioning well, but could use some help. Public Interest The proposed weir is not in an Outstanding Florida Water. Thus, the question is whether the proposed activity is not contrary to the public interest. The District has provided reasonable assurances as to the preceding seven criteria sufficient to demonstrate that, on balance, the proposed activity is not contrary to the public interest. Cumulative Impacts There is no evidence that the proposed weir will cause any adverse cumulative impacts upon wetlands or surface waters. Other Criteria The District has proved that the proposed weir would not violate any water quality standards. To the contrary, any effect from the proposed activity would be to improve water quality, especially downstream at the estuary. The restoration of conditions more typical of historic drainage would allow more nutrients to be captured upstream and would tend to restore the historic timing and volume of freshwater inputs into the estuary. For the reasons set forth above, the District has also provided reasonable assurance that the proposed activity meets the 11 criteria contained in Rule 40E-4.301, which largely duplicate the seven criteria discussed above, and the relevant provisions of the Basis of Review. It is true that the monitoring provisions are largely illusory because they provide no quantifiable parameter beyond which the District must take specified action. In other words, at best, the monitoring provisions assure that the District will collect post-operational flooding data, but they do not promise that the District will take any action if certain levels of flooding take place. However, the monitoring provisions are of little importance given the factual findings concerning flooding, as discussed above, and the legal requirements of the Basis of Review, as discussed below.
Recommendation It is RECOMMENDED that the Department of Environmental Protection enter a final order granting the permit for the construction of the proposed weir about 3600 feet south of I-75 in the Merritt Canal. DONE AND ENTERED this 25th day of June, 1998, in Tallahassee, Leon County, Florida. ROBERT E. MEALE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 25th day of June, 1998. COPIES FURNISHED: James W. McDonald, Jr., Esquire McDonald & Associates Community Plaza, Suite 306 15600 Southwest 288th Street Homestead, Florida 33030 A. Glenn Simpson Qualified Representative 5961 22nd Avenue Southwest Naples, Florida 34116 Marcy I. LaHart Associate Attorney South Florida Water Management District 3301 Gun Club Road West Palm Beach, Florida 33416-4680 Francine M. Ffolkes Assistant General Counsel Department of Environmental Protection Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 Walter R. Shaw, Sr., pro se 1400 Northwest 62nd Avenue Sunrise, Florida 33313-6138 Cliffort L. Fort 8410 Northwest 16th Street Pembroke Pines, Florida 33024 Kathy Carter, Agency Clerk Department of Environmental Protection Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 F. Perry Odom, General Counsel Department of Environmental Protection Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000
The Issue The issues are whether Respondent, Mosaic Fertilizer, LLC (Mosaic), has provided reasonable assurances that the proposed mining and reclamation of the South Fort Meade Mine in Hardee County can be conducted in a manner that comports with the applicable statutes and rules such that the proposed Environmental Resource Permit (ERP), Conceptual Reclamation Plan (CRP), variance from minimum standards for dissolved oxygen, and variance from littoral zone percentage provisions for the Project should be issued by Respondent, Department of Environmental Protection (Department).
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: Mosaic is a limited liability company authorized to do business in the State of Florida and is the applicant in these proceedings. It was formed by the merger of IMC Phosphates Company and Cargill, Inc., in 2004. Mosaic has applied for permits to mine, reclaim, and conduct associated activities on property in Hardee County, Florida, known as the South Fort Meade Hardee County tract. These activities are referred to in this Recommended Order as the "Project" or "site." The Department is a state agency with jurisdiction over ERP permitting under Part IV, Chapter 373, Florida Statutes, for phosphate mining activities with jurisdiction over phosphate mining reclamation under Part III, Chapter 378, Florida Statutes, and with jurisdiction over variances associated with phosphate mining under Section 403.201, Florida Statutes. Pursuant to that authority, the Department reviewed the ERP, CRP, DO Variance, and Zone Variance applications for the Project. Lee and Sarasota Counties are political subdivisions of the State of Florida. Both Counties have filed challenges to other mining applications and have been found to have standing in those cases. The site is located within the Greater Charlotte Harbor Basin, approximately sixty percent of which lies within Lee County. In this case, Lee County is concerned about the potential destruction of stream and wetlands in the mine area and the impact of mining and its effects on Charlotte Harbor and the Peace River. Sarasota County is a member of the Peace River Manasota Regional Water Supply Authority, and they jointly hold a water use permit, which authorizes them to withdraw water from the Peace River for potable supply. Sarasota County operates a water treatment plant on the Peace River downstream from the site and is concerned with potential impacts to water quality and wetlands. After three years of data collection and site analysis, on October 13, 2006, Mosaic filed applications with the Department's Bureau of Mine Reclamation for an ERP/Water Qualify Certification for the disturbance of approximately 7,756 acres of uplands, wetlands, and other surface waters within a 10,856– acre area which makes up the site; a CRP for the same parcel; and the associated Zone and DO Variances. Three sets of additional information were requested by the Department, and on January 31, 2008, the applications were deemed to be complete. On June 30, 2008, the Department issued Notices of Intent to issue the permits and grant the variances. The Project is located within the Peace River Basin. Little Charlie Creek, a tributary to the Peace River, enters the site in the northeast part of the tract and flows diagonally across the tract in a general southwest direction. The Project is located to the east of the Peace River, east of the town of Bowling Green, northeast of the City of Wauchula, and just south of the Polk-Hardee County Line in Hardee County, Florida. The Project site is twenty-nine miles from the Sarasota County line and fifty-three miles from the Lee County line. The Peace River eventually empties into Charlotte Harbor near Port Charlotte in Charlotte County. The Project consists of approximately eighty percent of upland land cover types, including large acreages converted to agricultural uses, such as cattle grazing, citrus production, and row crop production. The Project site consists primarily of citrus groves and pasture. Richard W. Cantrell, Deputy Director of Water Resources for the Department, has extensive experience and knowledge concerning agricultural parcels of this size in Central Florida. Based on his familiarity with the site, he indicated that all the streams have been impacted, the impacts to some areas of the site are severe, and the "site contains some of the most polluted streams with respect to sedimentation that I have ever seen." The other Mosaic and Department ecological experts familiar with the site concurred in that assessment, and the substantial data collections and application information support that assessment of the site. Of the 2,590.7 acres of wetlands on the property, approximately 751 acres of wetlands and other surface waters will be impacted. Of that 751, 91 are upland cut ditches or cattle ponds, 108 acres are other surface waters, and 274 acres are herbaceous wetlands. Virtually all of the native upland vegetation on the site has been destroyed due to the agricultural activities that have been undertaken on the site over time. Only remnant patches of native upland remain on the site. These comprise approximately nine percent of the site and are predominantly within the riparian corridors of Little Charlie Creek and the Peace River and are proposed to be preserved. The evidence established that the majority of the wetlands and streams proposed for impact are lower in quality; the higher quality wetlands are typically associated with the riparian stream corridors and are proposed to be preserved. The preserved uplands are primarily pasture but also include one hundred thirty-nine acres of upland forest. Twenty-nine distinct vegetative communities were mapped on the site during approximately two years of evaluation and assessment utilizing the Florida Land Use, Cover and Classification System (FLUCCS). There are numerous natural stream segments that were mapped on the parcel including the primary drainage systems on site, consisting of the Peace River, Little Charlie Creek, Lake Dale Branch, Parker Branch, and Max Branch. Substantial portions of the natural streams and their flood plains will be preserved; sixty-two natural stream segments totaling 58,769 linear feet will be mined. No sovereign submerged lands are proposed to be impacted by the activities. The Peace River to its ordinary high water line is sovereign submerged lands; however, no other streams on site are claimed as sovereign. Therefore, no authorization to utilize or impact sovereign submerged lands is required. The field work assessing the ecological condition of the site's wetlands, streams, and surface waters consisted of detailed quantitative and qualitative assessments using FLUCCS, the Wetland Rapid Assessment Procedure, and the Uniform Mitigation Assessment Methodology (UMAM) codified in Florida Administrative Code Rule Chapter 62-345. The level of assessment expended in evaluating the native upland and wetland habitats on the site was considerable and provided reasonable assurances that the current condition and relative value of the systems were adequately considered in the permitting process. From 2002 to 2004, Mosaic conducted intense ecological evaluations of the site, evaluating historical and aerial photography and other site documentation and conducting extensive examinations in the field, including vegetative, macroinvertebrate, and fish sampling and surveying, surface and ground water quality and quantity monitoring, wildlife observations, surveys and trapping, stream mapping and evaluation, soil analysis, and other efforts, both in areas to be mined and areas to be preserved, and in both uplands and in wetlands. The ecological assessments were primarily conducted prior to the hurricane events of 2004, although additional field work was conducted following the hurricanes. Mosaic and the Department's experts revisited the site in the fall of 2008 and agreed that the various ecological and biological assessments conducted prior to the hurricanes would tend to overstate the quality of the site as compared to its current condition. The hurricanes caused a significant amount of damage to the remaining forested habitats on the site. A formal wetland jurisdictional determination was issued and published without challenge in 2007 and therefore conclusively establishes the boundaries of the wetlands and surface waters on the site for permitting purposes. Seasonal surveys for wildlife on the site were conducted in 2003-2004 using the wildlife survey methodology prescribed and approved by the Florida Fish and Wildlife Conservation Commission. Specialized wildlife surveys and night-time surveys were also conducted. A total of 4,600 man hours of effort were expended to evaluate the presence of fish and wildlife, including threatened and endangered species, on the site. The entire site was surveyed, with over 2,600 miles of wildlife transects, to assess the presence of wildlife, and detailed information was recorded for all wildlife observations, including anecdotal observations by the ecologists performing the wetland assessments. Mosaic also engaged in an extensive effort to identify the natural stream channels proposed for impacts on the site. After discussion with the Department staff, Mosaic distinguished the natural streams in accordance with FLUCCS codes 511, 512, 513, and 514, as required by Florida Administrative Code Rule 62C-16.0051(4). Streams are a subset of the term "other surface waters" for ERP purposes. Although streams are defined in Section 373.019(18), Florida Statutes, as are other watercourses and surface waters, there is no operative use of, or reference to, streams in Part IV, Chapter 373, Florida Statutes, governing ERP permits. Also, there are no specific ERP mitigation requirements applicable to streams. Thus, the only specific regulatory use of the word "stream" occurs in the context of Florida Administrative Code Rule 62C-16.0051, and not the ERP rules. The Department and Mosaic established that the delineation of streams proposed for impact by mining on the site was sufficient and adequate for purposes of the CRP rules. In addition, Mr. Cantrell stated that, for purposes of the acre- for-acre, type-for-type (for wetlands) and linear foot (for streams) reclamation requirements in Florida Administrative Code Rule 62C-16.0051, the Department required Mosaic to delineate a stream as such until the point it enters or after it leaves a wetland area and to delineate the wetland polygon itself as a wetland, not a stream. This is true even if water continues to flow through the wetlands and reform as a stream at the other side. If the stream will not be impacted, then nothing in either the ERP or CRP rules requires its precise delineation, because the CRP rules apply only to reclamation of impacted areas. Thus, Lee County's assertion that "streams" has some special status by virtue of the definition in Section 373.019(18), Florida Statutes, has not been accepted. Mr. Cantrell further testified that the Department utilizes a substantially similar definition to delineate "streams" pursuant to Florida Administrative Code Rule 62C-16.0051(4), but as noted in Findings of Fact 44-46, subsection (5) of the rule requires restoration on a linear foot basis only of natural streams. Lee County contended that over 12,000 feet of natural streams were omitted or misidentified in the application. However, based upon the evidence presented, both historical and current, and applying the applicable regulations and statutes, this argument has been rejected. This contention was based on after-the-fact approximation of stream locations and lengths plotted from memory in a desktop analysis. Further, during his site visit to mark stream locations, Lee County's expert failed to use a handheld GPS device or maps. Therefore, the evidence submitted by Mosaic and the Department as to the location and length of the streams proposed for impact has been credited. Mr. Cantrell testified that even the best of the streams proposed for impact have been subjected to at least sixty years of agricultural disturbance and manipulation. For example, the system 22 series of stream segments will be impacted and replaced by the clay settling areas. While the witness characterized segment 22(o) as the most stable and least impacted of the streams to be mined, that segment is 376 feet long and located at the uppermost reach of the 22 systems. It is an extremely small percentage of the overall 12,000 plus feet of less stable and more severely impacted parts of system 22. Mosaic and the Department analyzed the origins and current condition of the streams to be impacted, most of which are less than three-to-four feet wide and one foot or less deep and flow only intermittently and seasonally. The ecological and hydrologic conditions of the site and its fish and wildlife populations and habitat values were assessed for purposes of the ERP and CRP regulatory criteria. Respondents' characterization of the functional value of the wetlands, streams, and surface waters is supported by a preponderance of the evidence. Lee and Sarasota Counties' assertion that the site wetlands and streams are in "good" condition and can be easily restored is not credited in light of the lack of empirical data to support this contention. The only way to recover the phosphate ore is through mining to remove the overburden layer and expose the phosphate matrix with a dragline. The first step prior to any land disturbance associated with phosphate mining is the installation of a "ditch and berm" system, which is recognized as a best management practice (BMP) by the Department and the United States Environmental Protection Agency. Installation of the ditch and berm system proceeds in phases to protect unmined wetlands and habitats from mining impacts as mining progresses; it is not constructed all at once. The ditch and berm remains in place around an individual mining unit until mining and reclamation have been completed and monitoring indicates the revegetation is sufficiently established such that no violations of water quality standards will occur upon re-connection to adjacent and downstream waters. It is then removed in accordance with the reclamation plan. The system serves a number of purposes described below. Berms are required to be constructed in accordance with specific design criteria. The height of the berm will be designed in accordance with rules specific to such structures to prevent water from overtopping the berm during a 25-year, 24- hour storm event, even if the ditch becomes blocked. Following installation of a ditch and berm system, bulldozers clear the mining area of vegetation. Up to three large electrically powered draglines operate generally in parallel rows to remove the overburden layer (the upper layer of sand and clay soil), which is approximately 23.6 feet thick on average, to expose the phosphate matrix, which is approximately 13-to-15 feet thick on average. The overburden is cast to the side in piles to be later reused in reclamation. The phosphate matrix is a mixture of sand, clay, and phosphate, which must be separated after mining. At the beneficiation plant, washing, screening, and flotation processes are used to separate the phosphate rock from the sand and clay. After washing and screening, the sand is pumped back to the mine cuts for use in reclamation, and the clay is pumped to clay settling areas (CSAs) in slurry form to decant. Both the transport of sand back to the mine areas for use in reclamation and the transport of clays to CSAs are considered "mining operations," not "reclamation." See Peace River/Manasota Regional Water Supply Authority, et al. v. IMC Phosphates Company, et al., DOAH Case No. 03-0791 (DOAH June 16, 2006; DEP July 31, 2006); Fla. Admin. Code R. 62C-16.0021(10) and (15). Thus, contrary to Lee County's allegation, the transportation of clays and sand is not a valid consideration in the financial responsibility required for mitigation. Through testimony and its materials balance tables, which are part of the application, Mosaic demonstrated that it has sufficient sand tailings and other waste materials to meet all of its reclamation requirements mine-wide, including both the Polk side and the Project site. However, while there is sufficient sand available to create the proposed reclamation topography and contours, the tables and testimony demonstrated a need, on a mine-wide basis, for lakes, as voids will remain otherwise. There will be only a very small pile of available sand remaining after all reclamation obligations on both the Polk side and the Project are met, an insufficient amount to eliminate the need for deep lakes as proposed. Mr. Myers, Mosaic's Vice-President of Mining, testified as to the three basic ways the waste materials generated by the beneficiation plant are disposed of on-site to facilitate reclamation. Sand tailings will be utilized in areas to be reclaimed as native habitats, wetlands, and streams. Clays will be disposed of in CSAs. However, based on the materials balance and logistical issues, the "land and lakes" reclamation method, which utilizes only the available overburden material remaining on-site after mining, will be used for the lake reclamation. This method allows sand tailings preferential use in reclamation of native habitats and use of shaped and contoured overburden in areas not proposed for wetland mitigation. Such is the case for the proposed reclaimed lakes. A CSA is an above-grade impoundment to hold clay slurry pumped from the beneficiation plant. This clay slurry is pumped into one side of a CSA in the form of muddy water. The clay settles to the bottom, and the clear water remains at the top. The clear water is drawn out from the opposite side of the impoundment, where it is recycled back to the beneficiation plant and mine for reuse. Over time, the clay consolidates and solidifies to form a solid soil, the surface area is drained, and the impoundment reclaimed. Three CSAs will be constructed on the northern portion of the site to hold the clay that cannot be stored in already- permitted CSAs in Polk County. The use of stage filling has allowed Mosaic to have additional usable space in its CSAs, minimizing the footprint of new CSAs in Hardee County. In addition, approximately fifty percent of the clay waste from the site will be disposed of at the Polk site to further minimize the clay disposal footprint and eliminate and reduce impacts. To evaluate the number of CSAs required, Mosaic asked Ardaman & Associates, a consulting firm, to examine different clay generation scenarios when predicting the CSAs required by mining and beneficiation. The life of mine waste disposal plan, most recently updated in September 2008, indicated that, in all but one scenario (the seventy percent clay containment scenario), all three CSAs would be required. However, Mosaic witness Garlanger established that all three CSAs in Hardee County would be necessary based on the best available information as to the amount of clays reasonably likely to be generated by mining; the seventy percent scenario is not likely. No evidence was presented to rebut that testimony. A diversion system was also voluntarily included for the CSAs by Mosaic. In the highly unlikely event of a dam failure, this system will re- direct any escaped water and/or clay materials to adjacent open mining cuts where they can be safely stored. The diversion system will be reclaimed when the CSAs are reclaimed. The evidence established that the ditch and berm system, CSAs, and diversionary structure are capable of being constructed and functioning as designed. The reclamation plan includes avoidance (no mining) of approximately 3,100 acres, or twenty-nine percent, of the site, including more than seventy-one percent of the total wetlands on-site. Of this, 2,100 acres will be placed in a perpetual conservation easement. There is a wide gamut of habitat types on the site that will be preserved and not mined, including both streams and wetlands. The most complex and least impacted habitats on the site have generally been included in the preserve area. The project includes disturbance of 751.3 acres of wetlands and other surface waters, which include non-wetland floodplains, cattle ponds, and upland-cut ditches, and mining of 58,769 linear feet of natural and modified natural streams. An additional 1,661 linear feet of stream channel will be disturbed but not mined for six temporary crossings for dragline/utility/ pipeline corridors. To mitigate for impacts to streams and wetlands under the ERP rules, Mosaic will create 641 acres of wetlands and other surface waters and 67,397 feet of stream channel and will also provide a conservation easement to the Department on 2,100 acres of unmined wetland and upland habitat associated with the major riparian systems. The conservation easement area will be permanently preserved and protected from secondary impacts. The UMAM rule is applied to ERP applications to measure the functional loss to wetlands and other surface waters proposed for impact and the functional gain associated with the proposed mitigation. Functional loss is compared to functional gain to determine whether sufficient mitigation has been offered that offsets the proposed impacts. The proposed preservation and wetland and surface water creation, along with certain upland enhancements, will provide more than enough UMAM mitigation "lift" (with 48 excess credits) to satisfy the ERP mitigation obligations and offset those wetland impacts that cannot be eliminated or reduced. The UMAM scores for the reclaimed areas are conservative, that is, using higher risk factors by assuming muck or other appropriate topsoil will not be available, and take into account the risk or difficulty associated with creation of a particular system, based on actual UMAM scores for existing reclaimed systems. Time lag, which is normally a factor considered in the UMAM mitigation equation, expressly does not apply to phosphate mines pursuant to Florida Administrative Code Rule 62-345.600. Thus, Lee County's attempt to argue that some greater amount of mitigation of streams is required to account for the time required to construct and reinstate flow and vegetation to the streams is not credited. Mr. Cantrell confirmed that "fat" was built into the foot-for-foot stream reclamation because 7,000 more feet of stream will be reclaimed beyond the amount impacted; some "stream" segments, specifically, stream segment 18(i), probably should not have been required to be reclaimed at all. Under Florida Administrative Code Rule 62C-16.0051, the 511 and 512 classified "natural" streams are the only streams warranting reclamation as streams under the Department's reclamation rules. Only natural streams currently existing immediately prior to mining are required to be reclaimed on a linear foot basis. Reclamation meeting the requirements of Florida Administrative Code Rule 62C-16.0051 is adequate mitigation under the ERP program in Part IV, Chapter 373, Florida Statutes, if it maintains or improves the functions of the biological systems currently existing onsite. See § 373.414(6)(b), Fla. Stat. Mr. Cantrell established that, under subsection (5) of the rule, the Department has discretion to request the applicant to restore wetlands and streams to a different type of system than existing on the site if "mitigating factors indicate that restoration of previously modified streams as a different type of lotic system would produce better results for the biological system and water quality." The evidence established that the rules do not require reclamation of artificially created water courses or remnant stream segments that lack the functions or landscape position one normally associates with natural streams. Instead, a better lotic system will be created that will improve existing functions and water quality, consistent with Section 373.414(6)(b), Florida Statutes, and the CRP rules. In addition to the wetlands and surface waters created to meet mitigation requirements, the Project will also reclaim uplands and will include what is known as "land and lakes" reclamation in the southeastern portion of the site. Utilizing shaped and contoured overburden, Mosaic will create four lakes totaling 180 acres and 43 acres of associated herbaceous littoral zone as CRP reclamation. This is based predominantly on the mine-wide materials balance showing a need for reclaimed lakes to account for mine voids on the Hardee site, the Polk site, or both. As a result, Mosaic has proposed 180 acres of reclaimed lakes in Hardee County in lieu of 500 acres of reclaimed lakes in Polk County, as this results in eliminating overall reclaimed lake acreage while satisfying Hardee County's request for deep lakes. In addition, timing and property logistics in that portion of the site make transport of tailings to the area from the beneficiation plant problematic. As the site is an extension of the existing South Fort Meade Mine in Polk County, Mosaic possesses permits that are not at issue in this proceeding, but are relevant to the project. Discharges from a mine recirculation system require a National Pollutant Discharge Elimination System (NPDES) permit. Discharges may only occur at specified discharge points upon verification that the discharge meets stringent water quality conditions in the permit, which are set to ensure that water quality standards in the receiving water are met at the point of discharge (without mixing) and that downstream water quality will be protected. A separate NPDES permit is not needed for the Project, because Mosaic already has a valid NPDES permit for the Polk County beneficiation facility, which will serve the site. Mosaic currently has a Water Use Industrial Permit (WUP) issued by the Southwest Florida Water Management District (SWFWMD). The WUP includes both the Polk County and Hardee County portions of the South Fort Meade mine and governs both dewatering of the mine area prior to mining and operation of water supply wells located in Polk County that will be used to provide supplemental water to the recirculation system. Mosaic's evidence demonstrated that the Project will not cause adverse water quantity impacts, consistent with Florida Administrative Code Rules 40D-4.301(1)(a), 40D-4.302(1), and 62C-16.0051 and related BOR provisions. Mosaic presented evidence concerning the potential long term impacts of the proposed project on surface and ground water quantities and flows both during active mining and reclamation activities, and after reclamation is complete. Extensive analyses were presented by Mosaic's expert witnesses and evaluated by the Department. Such analyses showed no adverse impacts to water quantity on the site, adjacent properties, or in the Peace River or Charlotte Harbor. The site was studied extensively by Mosaic, and detailed hydrology characteristics were assessed as part of the preparation of the ERP and CRP applications. Various surface water stations, topographic maps, and ground water sampling points were utilized and geologic information was developed by evaluation of various borings across the site. Mosaic witness Burleson, a professional engineer, further considered soil types, land use and vegetative cover, and existing site hydrologic factors such as culverts, bridges, and other such changes to the site by the prior owners. Mosaic's modeling expert, Dr. Mark Ross, considered these factors on a regional scale in his integrated modeling for the 360 square mile regional basin. In the region of Florida that encompasses the site, there are three major hydrogeologic layers that are significant to a hydrologic analysis: (1) the surficial aquifer system, comprised of the overburden (the top layer of soil) and the phosphate matrix; (2) the confining layer and intermediate aquifer system; and (3) the Floridan, or deep, aquifer system. The confining layer separates the surficial from the intermediate and Floridan aquifer systems. By understanding the surface and ground water systems and physical characteristics of the site, the Mosaic experts were able to apply appropriately-calibrated hydrologic models to assess (1) pre-mining and post-reclamation floodplains and storm event runoff comparisons; (2) base flows to reclaimed streams; (3) potential hydrologic impacts of stream crossings; (4) effectiveness of the perimeter "recharge ditches"; (5) hydroperiod of reclaimed wetlands; and (6) potential impacts of the project on flows in the Peace River. These models were used to predict with reasonable certainty the effect of the Project on water quantity on-site, off-site, and on a regional scale. As set forth below, the evidence established that water quantity and flows in adjacent unmined wetlands and streams will be maintained during mining activities as a result of the installation of the ditch and berm system as proposed. Before the ditch and berm system is constructed, Mosaic will refine the design of the system based on actual geological data and gradient information to assure the ditch and berm will function as proposed and modeled. The ditch and berm system is inspected regularly. Recharge wells within the recharge ditch are not required unless localized conditions dictate use of the wells. Contrary to Lee County's assertions, this site is distinguishable from the Ona mine site (which is also in Hardee County), and the depth of mining is far more shallow with relatively few areas mined to a depth of fifty feet, which was common at the Ona mine site. Additionally, Mosaic must install perimeter monitor wells at regular intervals adjacent to and downgradient of the ditch and berm system prior to mining. These wells are monitored prior to mining to establish a baseline and regularly throughout mining in accordance with the requirements of Mosaic's WUP and the ERP to assure that the water table in adjacent areas is not adversely affected by mining activities. The water in the ditch portion of the perimeter system must be maintained at levels sufficient to maintain groundwater levels in undisturbed areas. Maintaining water in the ditch at appropriate levels precludes drainage of groundwater from adjacent sites into open mine cuts. Mosaic witness Pekas, a professional engineer, conducted modeling to determine whether adequate base flow will be provided to protected streams and reclaimed streams during mining. Provided the ditch and berm system is operated properly, proper base flows will be maintained. All of the hydrologic experts agreed that proper operation of a ditch and berm system assures that adequate groundwater outflow, or base flow, is available to support adjacent streams and wetlands during mining. During active mining operations, the ditch and berm system collects rainfall on areas within the system. The ditch and berm system temporarily detains this rainfall, preventing the direct discharge of untreated, turbid runoff to adjacent wetlands and waters, but does not permanently retain the rainfall. The evidence demonstrated that most of the rainfall that falls on areas disturbed by mining and mining-related activities is detained by the perimeter ditches, routed to the mine recirculation system, and is subsequently discharged, when it meets water quality standards, through NPDES-permitted outfalls to waters of the state. This will serve to attenuate surface water flows, allowing surface water retained during storm events to be discharged during extreme low flow events, providing for less "flashiness" in the streams. Lee County's assertion that runoff will be permanently retained is not credited; the evidence clearly established that controlled releases of treated stormwater occur through the permitted NPDES outfalls. The evidence shows that Mosaic will re-connect mined and reclaimed areas at the mine in Polk County at a rate exceeding the rate at which the Project's mine areas will be diverted by the ditch and berm system. Thus, any potential downstream impact of the ditch and berm construction on the site will be offset and buffered beyond the safeguards incorporated in the project design. The evidence demonstrated that the proposed ditch and berm recharge and monitoring system described here is capable, based upon generally accepted engineering principles, of being effectively performed and functioning as proposed and will preclude any adverse impact on the surficial aquifer beneath the preserved areas and adjacent properties and on adjacent surface waters and wetlands. The Department will apply the relevant BOR criteria concerning water quantity impacts on a pre-mining/post- reclamation basis consistent with the application of these same criteria to other non-mining ERP applicants. In this case, the Department reviewed Mosaic's submittals, assessed the impacts, and determined no adverse impacts to water quantity would occur during mining. Mosaic submitted a detailed analysis of potential surface water quantity impacts that may occur after reclamation is complete. This analysis included evaluation of post- reclamation floodplains and storm event run-off compared to pre- mining patterns, and characteristics of reclaimed natural systems. Floodplains, run-off, and reclaimed natural systems were assessed in the manner described below. Mosaic modeled potential impacts of the project on surface water flow using existing site conditions to calibrate and verify the model. Mr. Pekas developed a water balance hydroperiod spreadsheet model calibrated using existing, on-site wetlands to evaluate the expected hydroperiods of various types of wetland systems proposed to be reclaimed at the site. The evidence shows that the Pekas spreadsheet model was an appropriate model for predicting hydroperiods for reclaimed wetlands. Appropriate ranges for the expected hydroperiods and other hydrological characteristics needed for the different types of wetland systems to be created in the post-reclamation landscape were established. In order to reflect natural conditions, the Department specifically requested that the targets for expected hydroperiods of reclaimed wetlands vary across the established range of the hydroperiod for the type of wetland at issue, and these target hydroperiods are summarized in Table E-6 to the draft ERP. Mosaic demonstrated and verified that the Pekas spreadsheet reasonably predicts the hydroperiods to be expected from a given design for a proposed reclaimed wetland. After mining, site-specific conditions such as hydraulic conductivity will be reassessed and final design parameters will be developed accordingly. Lee County's witness Jonas demonstrated the importance of hydraulic conductivity when she adjusted the value for wetland 2-1C (one of Mr. Pekas' verification wetlands) from 0.5 to 30, based on a value not from the Project site, but from an off-site reclamation project. Not surprisingly, she concluded that a conductivity of 30 would not provide hydrology to support the wetland functionality. Her analysis demonstrates the importance of requiring reclamation of subsurface hydrology not based on an off-property conductivity value, but on site- specific hydraulic conductivity information. In his own analysis, Mr. Pekas relied on actual soil borings on-site, and at wetland 2-1C the average hydraulic conductivity was 0.5, which when modeled, provided appropriate hydrology for that wetland. Furthermore, ERP Specific Condition 11 requires Mosaic to reclaim wetlands with functionally equivalent hydraulic conditions based on verified field information as to site- specific hydrologic properties existing after mining, and the wetlands will not be released until functioning as required. The preponderance of the evidence demonstrates that reclaimed wetland can be designed and built in a manner that will achieve the required hydroperiods for each wetland type proposed to be disturbed and reclaimed at the site, including the bay swamps. In addition, each of the wetlands must be individually evaluated immediately prior to construction to provide additional verification of site-specific hydrologic conditions to assess, re-model, and verify the final wetland designs prior to construction. Condition 11c of the draft ERP also requires Mosaic to mimic the existing hydraulic conductivity and gradients near streams to ensure that base flows will be present post-reclamation. All of this will ensure that reclaimed streams will be hydrologically supported, and wetlands with the target hydroperiods requested by the Department will be constructed. The contrary testimony of Lee County's hydrologists does not credibly rebut this evidence. In performing their calculations, they utilized unrealistic numbers. The claim of Lee and Sarasota Counties' experts that they lacked sufficient information to form an opinion as to the accuracy of the modeling is not sufficient to overcome the evidence submitted by Mosaic to meet this criterion. See, e.g., National Audubon Society, et al. v. South Florida Water Management District, et al., DOAH Case No. 06-4157, 2007 Fla. ENV LEXIS 164 at *21 (DOAH July 24, 2007, SFWMD Sept. 13, 2007). Mr. Burleson determined that the original drainage patterns of the site would be restored post-reclamation. Mosaic provided reasonable assurances that the proposed reclamation is capable of being constructed and functioning as proposed. The preponderance of the evidence demonstrated that the proposed mining and reclamation of the site will not cause adverse water quantity impacts post-reclamation, as addressed by Florida Administrative Code Rules 40D-4.301(1)(a) and (c), associated BOR provisions, and Florida Administrative Code Rule 62C-16.0051(8)(b). Mosaic presented evidence demonstrating reasonable assurances that the proposed project will not cause adverse flooding to on-site or off-site property, consistent with Florida Administrative Code Rules 40D-4.301(1)(b) and 62C- 16.0051(8) and associated BOR provisions. During mining, there is no reasonable likelihood that active mining and reclamation activities at the site will result in any increased flooding conditions upstream of, on, or downstream of the site. The ditch and berm system reduces direct surface water runoff from areas disturbed by mining operations during peak rainfall events. Subsequent NPDES discharges of water typically lag slightly behind the rainfall events. This lag during mining decreases peak discharges in adjacent streams while augmenting lower flows slightly, thereby attenuating peak flows. Mr. Burleson evaluated the pre-mining and post- reclamation peak flow analyses for the project site to determine whether the post-reclamation topography, soils, and vegetative cover would result in flooding, using the Interconnected Pond Routing program or "ICPR" model, an accepted model for stormwater modeling, as required by the BOR. Mosaic's evidence established that the Project will not adversely impact existing surface water storage and conveyance capabilities, consistent with Florida Administrative Code Rule 40D-4.301(1)(c) and related BOR provisions. Additionally, Mosaic proposes to preserve from mining the 100-year flood plain of Little Charlie Creek and the Peace River and most of the higher quality small tributaries on the site. The smaller streams to be mined will be restored in a way that maintains or improves pre-mining conditions and will not cause harmful or erosional flows or shoaling. The federal Hydrologic Engineering Center Reservoir Analysis System and the National Flood Frequency Program were used by Mr. Burleson to verify the floodplains are accurately mapped and also that there will not be an increase in flood risk in the post-reclamation condition. The preponderance of the evidence demonstrates reasonable assurances that the proposed mining and reclamation activities at the site will not result in adverse flooding impacts, consistent with Florida Administrative Code Rules 40D- 4.301, 40D-4.302(1)(a)3., and 62C-16.0051(8), and the BOR, including water quality standards in Chapter 4. The evidence presented by Dr. Ross established that the proposed mining and reclamation activities on the site will not adversely impact flows in the Peace River. No adverse effects of the Project will be observable at the Zolfo Springs United States Geological Survey (USGS) gauging station. A minimum flow for the Upper Peace River has been established pursuant to Section 372.042, Florida Statutes. A minimum low flow of 45 cfs from April to June (Upper Peace MFL) was established at Zolfo Springs by the SWFWMD; since the MFL has not been met since adoption, a recovery plan has been instituted. See Fla. Admin. Code R. 40D-8.041(7). Lee County asserts that the Project will violate the Upper Peace MFL and the recovery plan, arguing that a reduction in average annual flow, regardless of how infinitesimal, constitutes a violation of Florida Administrative Code Rule 40D-4.301(1)(g). This argument was refuted by Dr. Ross, who established that the project would increase flows during low flow periods. The Department concurred with, and the evidence supports, Dr. Ross' assessment that the project would not exacerbate the Upper Peace MFL or interfere with the recovery plan. Dr. Ross created a regional-scale integrated model utilizing public domain computer programs in an iterative fashion that coupled surface water and ground water to comprehensively evaluate the effects of the project on the flows in the Peace River post-reclamation. The regional approach included a full range of upstream and downstream influences on the site, not simply mining, that could affect the hydrologic evaluation of any impacts from the Project on the Peace River. The model domain included 360 square miles. To account for site-specific impacts in the model, Dr. Ross increased the refinement and discretization over the site. Thus, the model was capable of considering impacts from the site in its entirety within the region as measured at the Zolfo Springs USGS gauging station. Zolfo Springs is the first USGS gauging station directly downstream of the site and is the point of compliance for minimum flows adopted for the Upper Peace River system. The regional model predicted virtually no change in flows at the Zolfo Springs gauging station after the project as proposed is reclaimed, and that both the high and low flows observed at Zolfo Springs would be maintained post-reclamation. Dr. Ross concluded that there would not be any reduction of low flows at Zolfo Springs due to the Project. He further concluded that the Project will not impact or affect the recovery of minimum flows. Dr. Ross calculated the differences between the model- predicted high flows and low flows from the observed flows and found that the modeled high flows were slightly attenuated and the modeled low flows were slightly augmented at Zolfo Springs. The attenuation is consistent with the increased storage for water in the post-reclamation system. Consistent with Florida Administrative Code Rule Chapter 40D-8, the Department considered potential impacts to low flows as the determining factor in determining whether a minimum low flow requirement like the one set for the Upper Peace MFL will be met. It concluded that the project is consistent with the Upper Peace MFL and its recovery strategy. The recovery strategy discusses projects which, like the one proposed, would yield a long-term increase in low flow conditions by storing some peak flow volumes and releasing them in low flow conditions. The Department's interpretation of its ERP rules and BOR provisions regarding MFLs, as well as other governing rules, is reasonable and has been accepted. Lee County's experts based their MFL testimony on an inappropriate use of annual average flow information and improper interpretation of Mosaic's data. Further, they inappropriately attempted to reach conclusions by estimates and extrapolation, and the overall weight of the evidence supports Mosaic's evidence that mining and reclamation will not cause a violation of the Upper Peace MFL. Accordingly, Mosaic has provided reasonable assurances that the requirements of Florida Administrative Code Rule 40D- 4.301(1)(g) and associated BOR provisions have been satisfied. The ditch and berm system and other proposed BMPs, such as silt fences, at the site will provide water quality protection to adjacent undisturbed surface waters and wetlands during mining and reclamation activities. The actual construction of the ditch and berm and stream crossings will be conducted using BMPs to avoid adverse construction-related impacts. During mining, the ditch and berm system will preclude uncontrolled releases of turbid water to adjacent un-mined areas. The evidence established that the proposed Project will not cause a violation of water quality standards, either in the short-term or long-term. Dr. Durbin, an ecologist, evaluated water quality data from the existing South Fort Meade mine in Polk County and compared data from the 10-year period before the mine opened against the 10-year period after the mining began, finding water quality to be equivalent or better after mining began in Polk County. This allowed him to conclude that water quality on the site will not be adversely affected and, in light of existing agricultural activities, will be maintained or improved both during mining and post-reclamation; water quality in reclaimed systems will be sufficient to maintain designated uses of the systems. Dr. Durbin opined that the ERP contains detailed water quality monitoring requirements that, based on his long experience, are sufficient to establish a baseline, assess compliance, and detect significant trends. Sarasota County's witness has no experience in ERP or CRP permitting and his suggestion for far more frequent monitoring is not credited. No additional monitoring conditions or criteria are warranted. For the above reasons, Mosaic has demonstrated by a preponderance of the evidence that reasonable assurances that water quality standards will not be violated either during mining, while reclamation is underway, or post-reclamation. The evidence further established that accepted BMPs will be used during mining to protect the water quality of adjacent and downstream waters, and that these measures can be expected to be effective to prevent any violations of water quality standards. Dr. Durbin provided unrebutted evidence that water quality standards in waters of the state and downstream of the project will be met post-reclamation and existing water quality in the unmined and reclaimed wetlands and waters will be maintained or improved post-reclamation. Thus, no adverse water quality impacts to the Peace River or Charlotte Harbor will occur during mining or post-reclamation. Therefore, reasonable assurances have been given that the requirements of Sections 373.414(1) and 373.414(6)(b), Florida Statutes, Florida Administrative Code Rules 40D- 4.301(1)(e) and 62C-16.0051(7), and associated BOR provisions are satisfied as to water quality. There is a wide range of habitat types on the site that will be preserved and not mined, including both streams and wetlands. The most complex and least impacted habitats on the site have generally been included in the no-mine and preserved areas. Mosaic does not propose to mine all or even most of the jurisdictional wetland and surface waters. In fact, seventy-one percent will be avoided. When developing a mining plan, Mosaic considers how to eliminate or reduce proposed impacts to waters and wetlands. The evidence established that Mosaic and the Department engaged in a protracted elimination and reduction discussion throughout the review process associated with the site's ERP/CRP applications. BOR Section 3.2.1 emphasizes the effort required to assess project design modifications that may be warranted to eliminate and reduce impacts to ecological resources found on the site. This effort was undertaken with the Department as early as 2004 during the DRI pre-application conferences. The major project design modifications involved the preservation of the named stream channels, the 100-year floodplain of the Peace River and Little Charlie Creek, and the 25-year floodplain of the other named tributaries. These areas will be permanently preserved by a 2,100-acre conservation easement; 1,000 additional acres will remain unmined. Also, the project design was modified and developed to maximize resource protection by integrating the Polk and Hardee mining operations. The testimony established how the activities at the Hardee operation will be greatly facilitated by relying upon and using the beneficiation plant and infrastructure already in place and permitted at the Polk site. Almost fifty percent of the clays generated at the Hardee mine will be disposed of in the existing Polk County CSAs, thereby eliminating one CSA altogether and substantially reducing the footprint needed for CSAs on the site. Likewise, the Department established that mine-wide, approximately 320 acres of lakes were eliminated. The Department discussed further modifications to the mine plan with Mosaic throughout the lengthy review process, doing a wetland and stream-by-stream assessment of the functions provided and the reclamation capability to maintain or improve the functions of the biological systems present prior to mining. The balance was struck between temporary resource extraction, recognized by Florida law as inextricably related to wetland disturbance, and the significantly altered natural resource features found on the site. In light of the 3,100 acres already eliminated and reduced from impact consideration, the Department in its discretion did not find it necessary to pursue economic data or analysis on the "practicability" of any further reductions. The highly disturbed nature of the wetlands and other surface waters being impacted gave the Department a high degree of confidence that mitigation and reclamation of these areas would in fact maintain and improve the functions provided prior to mining. Specifically, Mosaic has eliminated impacts to stream systems to the greatest extent practicable. Based on a Department field evaluation in late August 2008, Mosaic was directed to revise the no-mine line in the 3A stream system to more accurately reflect the floodplain of the stream draining the two bay heads north of the stream. In October 2008, Mosaic made the revision to add approximately 2.7 acres to the no-mine area. The majority of the streams proposed for impact by mining cannot be avoided, given the location of the three CSAs that are required for clay disposal associated with mining. The evidence established that there is no other location for the three CSAs that will have a lesser ecological or public health, safety, or welfare impact than the proposed location, given the site topography. As noted above, the volume of clays to be disposed of on the site has been reduced by half, and three CSAs are still needed. The location was chosen to move the CSAs as far from the Peace River and Little Charlie Creek as possible in light of the site topography, and this location avoids all impacts to named stream systems. As set forth above, Mosaic has demonstrated by a preponderance of the evidence that the best and most complex habitats on the site have been preserved at the expense of a loss of a significant amount of phosphate reserves in the preserved areas. All significant stream systems have been avoided to the extent practicable in light of the necessary CSAs. Both Mosaic and Department witnesses testified that the proposed no-mine area was the result of design modifications to eliminate or reduce impacts to wetlands to the greatest extent practicable. This satisfies the requirements of applicable rules and Section 373.414(1)(b), Florida Statutes. Florida Administrative Code Rule 62C-16.0051(4) and (5) provides specific guidance on the classification and reclamation of natural streams. The Department provided direction to the applicant through the review process in the identification of natural streams and the design guidance manual to ensure foot-for-foot replacement and functional replacement or improvement. The permit reflects the 58,769 feet of the streams identified as numbers 511 and 512 to be impacted, and Mosaic has proposed approximately 65,700 feet of restored stream. Lee County's assertion that 2.3 miles of additional unmapped streams should be added to the reclamation obligation has been rejected. It is clear many of the areas alleged to be unmapped streams were depressions, low lying areas, or standing water within wetland areas more accurately identified as marshes or swamps. The fact that a discernible natural stream channel exists upstream and downstream of a wetland did not change the accuracy of acknowledging the different structure, form, and functional attributes that result in the wetland being distinct from the stream. Also, many of the alleged unmapped streams were located in the no-mine areas, and thus the alleged lack of delineation is of no consequence. Lee County's witness Erwin admittedly took no measurements of the alleged streams. Also, he provided no evidence that he or his staff delineated the alleged streams on- site. Rather, he reconstructed where they were located as a desktop exercise from memory, without any aids or tools used in the field. He then superimposed an alignment and put it on a GIS layer over an aerial photograph, resulting in an electronically generated approximation. The witness offered no physical evidence of depth, width, length, or bankfull width of stream function, but merely an assertion as to areas that appeared to have a bed or channel, even if dry, and the attributes or functions of a stream were immaterial or irrelevant to his analysis. No other independent witness attested to the alleged stream discrepancy, whereas both Mosaic's expert, Mr. Kiefer, a recognized fluvial geomorphologist, and the state's expert on jurisdictional delineations, Mr. Cantrell, who was the author of the applicable rules, expressly disagreed with these allegations. The testimony of Mosaic and the Department is found to be the most persuasive on this issue. Mosaic and the Department established that the proposed stream restoration plan is more than adequate to meet the requirements of Florida Administrative Code Rule 62C- 16.0051(5) and will ensure the reclaimed streams maintain or improve the biological function of the streams to be impacted. Dr. Janicki, a scientist who testified on behalf of Lee County, was critical of the stream restoration plan. However, he acknowledged he was not an expert in stream restoration and that part of his job was to "look at how we might improve . . . on some of those shortcomings in the [stream] restoration plan." Dr. Janicki incorrectly assumed the design curve numbers were based on regional curves from north and northwest Florida rather than site-specific measurements. He stated that the guidance document was generalized and lacking specificity, but Table 4 contained in the guidance document contains nineteen stream morphological parameters for all forty- nine of the stream segments to be reclaimed. Dr. Janicki has never designed nor implemented a stream restoration project, and he acknowledged that he is not a fluvial geomorphologist. Conversely, Mosaic witnesses Boote and Kiefer, both accepted in this area, stated unequivocally that the plan was sufficiently detailed and that a qualified restoration and construction contractor could implement the plan in the field with appropriate field adjustments and construction level refinements based on site conditions. The allegation that the plan does not comport with ERP and CRP requirements because it lacks sufficient specificity is not credited. First, the ERP rules do not contain stream-specific restoration criteria. Second, the CRP stream rules adopted in May 2006 have never been applied in a prior case, and in this case the Department determined in its discretion that the plan as proposed meets the stream reclamation requirements of the CRP rules. Similarly, the stream restoration plan was criticized because measurements from every single segment or reach of stream were not used to develop the post-mining stream. However, Mr. Boote and Mr. Kiefer confirmed that only the most stable and least impacted of the stream segments on site were used as templates for stream reclamation. None of the recognized stream experts suggested that erosive, unstable "F" and "G" classified stream segments should be replaced in that unstable form or used as the template for reclamation. By a preponderance of the evidence, Mosaic has established that the reclamation plan for the site will more than offset any adverse impacts to wetlands resulting from the mining activities, because it will maintain or improve water quality and the functions of biological systems present on the site today, as required by Sections 373.414(1) and 373.414(6)(b), Florida Statutes. The evidence established that applicable Class III water quality standards will not be violated and that the water in wetlands and surface waters on-site post-reclamation will maintain or improve and be sufficient to support fish and wildlife in accordance with Florida Administrative Code Rules 62C-16.0051 and 40D-4.301(1)(e) and relevant BOR provisions. The proposed mitigation will also restore a more appropriate or more natural hydrologic regime that will allow for a better propagation of fish and invertebrates in reclaimed systems. The reclamation plan will maintain the function of biological systems of wetlands to be mined on-site by replacing the wetlands to be impacted with wetlands of the same type and similar topography and hydrology in the post-reclamation landscape. In many cases, it will enhance the function of those systems by improving the landscape position of the wetlands, relocating them closer to the preserved Little Charlie Creek corridor, and moving cattle ponds and pasture away from the corridor. Likewise, the existing streams proposed for mining will be replaced with stream reaches modeled on streams that are comparable or better than the existing, unstable, and eroded streams. The Department has determined that Mosaic can reclaim the streams and wetlands to at least as good as or better than existing condition on the site. Mosaic has provided reasonable assurances that the proposed reclamation plan will maintain or improve the existing function of biological systems. Mosaic's reclamation plan for the site therefore satisfies the mitigation requirements of Part IV, Chapter 373, Florida Statutes, and the implementing regulations and the BOR, as applied to phosphate mining activities through Section 373.414(6)(b), Florida Statutes. Through the testimony of witnesses Durbin, Kiefer, and Simpson, as well as documentary evidence, Mosaic has established that the proposed project, as reclaimed, will cause no adverse impacts on the value of functions provided to fish and wildlife and will not adversely affect the conservation of fish and wildlife, including endangered or threatened species and their habitats, as required by Section 373.414(1)(a)2., Florida Statutes, Florida Administrative Code Rules 40D- 4.301(1)(d) and 40D-4.301(1)(a)2., as well as the associated BOR Section 3.2.2 provisions. Likewise, the CRP criteria pertaining to fish and wildlife will be met. See Fla. Admin. Code R. 62C- 16.0051(11). Mosaic's reclamation and site habitat management plan will maintain or improve the functions of the biological systems on the site with respect to fish and wildlife, including threatened and endangered species and their habitat. Mosaic witness Simpson provided unrebutted testimony that the proposed mining and reclamation will not have adverse impacts on wildlife populations or conservation of wildlife including threatened or endangered species and their habitats and that proposed reclamation would maintain or improve wildlife habitat values. The evidence shows that the mining and reclamation will not have adverse impacts on fish populations or conservation of fish. The fish habitat on the site will either be preserved or, if mined, will be replaced with in many cases superior habitat. There will be a net increase in suitable fish habitat post-reclamation. The wetland and stream fish habitats on the site will provide appropriate habitat for the fish and wildlife that can be expected to occur in the region. The sampling described above can be expected to reflect the majority, if not all, of the fish species reasonably expected to be present on the site. Mosaic witness Durbin further confirmed that the fish species collected on-site are consistent with similar sites in the immediate vicinity with similar agricultural usage with which he is familiar. In August and September 2008, verification of that fish sampling effort was performed by Dr. Durbin, an outside consulting firm (ECT), and the Department. They confirmed that the fish collection efforts reasonably reflect the native and exotic fish species that are likely to occupy the site. Through the testimony of Dr. Fraser, Lee County compared two streams on the Ona mine site with three stream segments on the Project site. However, the sole basis of the witness' comparison was recollections of field work he participated in over four years ago and photos taken at that time compared with photos taken at the new site. The witness conceded that he did not consider or compare sedimentation levels in the two stream systems. On the other hand, Department witness Cantrell established that the streams compared by Dr. Fraser were dissimilar. In fact, one of the streams Dr. Fraser held up as an apparent example of prime aquatic habitat was Stream 20C, which Mr. Cantrell demonstrated is nearly completely choked by sand and sedimentation. All of the streams proposed for impact are first or second order streams; most of them are intermittent, carrying flow only seasonally and therefore are only periodically occupied by fish and macroinvertebrate communities. The fish that do tend to utilize such systems in the wet season tend to be very small, usually less than one inch in size. The proposed preservation will preserve the best aquatic habitat on the property; the streams to be preserved are the main pathways and aquatic habitats utilized by fish. Mosaic witnesses Durbin, Keenan, and Kiefer all testified that the reclamation plan will restore better aquatic habitat for fish and other aquatic organisms than exists presently on site on a greater than acre- for-acre, type-for-type and linear foot basis. They further testified that the proposed reclamation will provide better aquatic habitat for fish and wildlife than currently provided, consistent with both ERP and CRP requirements. In addition, Dr. Fraser's suggestion that the fish sampling done on the site was insufficient and that the ERP should be modified to require fish collection as a success criterion for the reclaimed streams is not credited. This is because such a proposal is not a requirement of the ERP or CRP rules. Dr. Fraser's comparisons of reclaimed to unmined streams were inconsistent with his own anecdotal fish observations, and he testified as to the difficulty of ensuring adequate fish sampling or knowing where fish will be on any given day, given their mobility. Also, he provided no comparisons as to how the reclaimed streams sampled are constructed compared to the plan for the site and admitted he did not know how or when they were built. Dr. Fraser's discussion of fish in basins where mining has occurred was discredited by his own data showing that no reduction in the number of native fish species has occurred over time in those basins. Mosaic's reclamation plan, which consolidates the native upland and wetland habitats along the Little Charlie Creek corridor, will improve the fish and wildlife function of those systems and increase fish and wildlife abundance and diversity, as set forth above. There will be no adverse impacts to fish and wildlife and their habitat or to the conservation of fish and wildlife, including listed species, post-reclamation, because the fish and wildlife function of the tract will be maintained and in many cases improved by the reclamation and habitat management plans. This is particularly true in light of the existing condition, hydrologic connection, location, and fish and wildlife utilization of the wetlands and surface waters on site. Therefore, Mosaic has provided reasonable assurances that the requirements of Section 373.414(1)(a)2., Florida Statutes, Florida Administrative Code Rules 40D-4.301(1)(d) and 40D- 4.302(1)(a)2., and the relevant BOR provisions have been satisfied. Mosaic demonstrated that it has reclaimed wetlands, uplands, and streams consistent with the regulatory requirements and permit conditions in place at the time the area was reclaimed. Indeed, many of these reclaimed areas, whether or not under different ownership and control or whether released from further regulatory requirements, continue to demonstrate that they are successful and functioning ecosystems. The reclamation proposed for the site is state-of- the-art, reflecting the most recent evolution of reclamation techniques for uplands, wetlands and streams, with more planning and detail that should achieve the reclamation goals faster. Many older wetland projects were designed to meet a +/- 1-foot contour and were designed with older generations of equipment and survey techniques. However, Mosaic's third party contractor's bulldozers/tractors are now equipped with GPS and sensors to enable grade tolerances within two inches, allowing for much more accurate backfilling and wetland construction. Accordingly, Mosaic's newer wetlands contain both deep and shallow areas with gradation/zonation in between. Hydrologic regimes and hydroperiods can thus be effectively created to target and achieve more specific hydrologic conditions required by certain wetland systems such as seepage slopes and wet prairies. Nonetheless, the projected UMAM scores for the reclaimed systems take into account a higher risk factor for systems that historically were more difficult to reclaim. Mosaic has provided reasonable assurances of its ability to restore the hydrology and types of vegetation found on the site and of its ability to create ecosystems that will maintain or improve the function of the biological systems proposed for mining on the site. Mosaic has restored wetlands in a variety of configurations ranging from small round depressions of less than a few acres to large complex polygons in excess of two hundred acres, as well as wetlands with low slope gradients. For example, Mr. Kiefer described and depicted Mosaic's ability to restore a bay swamp at point 84(5) at the Fort Green Mine and at Alderman Bay. Lee and Sarasota Counties focused on bay swamps in particular, but failed to acknowledge that Mosaic will be reclaiming 98.5 acres of bay swamps while only impacting 62.1 acres. Mosaic demonstrated that herbaceous and forested wetlands can be and have been restored by Mosaic and its predecessors. Mosaic has demonstrated that it can restore the various zones and depths of freshwater marshes, including shrub marshes, from the deep emergent zone to the wet prairie fringe, and has demonstrated that these zones in reclaimed marshes are providing important and key wetland functions, such as water quality, food chain support, habitat, and other functions, similar to those functions provided by site marshes. This evidence was not effectively rebutted by Lee or Sarasota Counties. In fact, Sarasota County witness Lipstein acknowledged Mosaic is proposing to mitigate for all impacts. When asked if the proposed bay swamps will be successful or unsuccessful, she replied that she did not know and, "you will have to just wait and see if it reaches that success criteria." There have been different success criteria applied in Department permits over the years, and Mosaic has demonstrated the ability to meet those changing and more stringent criteria. In the past, stream restoration was accomplished relatively simply by contouring the stream valley and floodplain to support wetland vegetation, then allowing a flow channel to self-organize. While this technique has resulted in successful streams that met Department permit criteria, it can take many years to occur. For example, Dogleg Branch (which is located on the site of another mining operation) took almost twenty years to achieve success. Mosaic has previously developed successful stream restoration projects which have been documented to provide flow regimes similar to that of natural flatwoods streams, with in- stream aquatic habitat diversity similar to or better than the stream segments proposed for mining at the site and which met reclamation criteria. Mosaic witness Kiefer demonstrated this with evidence of the functions that various reclaimed streams provided. He also showed that, in newer stream restoration projects, like Maron Run, certain functions and form, such as habitat availability, bank stability, meander, and pool-riffle sequence, are developing rapidly. Also, Department witness Rivera testified to Mosaic's commitment to achieving stream success in its efforts to retrofit certain of these earlier reclaimed streams to achieve greater function and habitat diversity. Using an average sinuosity of 1.35, over 65,700 linear feet of streams will be created as part of the mitigation plan. The foot-for-foot requirement for the reclaimed streams will be exceeded by 7,000 feet. Mosaic's mitigation proposal incorporates state-of- the-art stream restoration techniques and the post-reclamation topography to be used as guidance for the final construction plans. The guidance is based on extensive data collected from twenty-one cross sections of reference reaches within the project area, including measurements for channel dimensions, sinuosity, bankfull, and entrenchment ratios. Snags, debris, and other woody material will be placed at appropriate intervals within the channel to provide in-stream habitat and aid in-channel stabilization and development. Restored streams will have primarily forested riparian zones. Trees will be planted using techniques that will assist rapid canopy closure and aid in rapid bank stabilization. Biodegradable erosion control blankets will be used to control erosion. The streams will be designed such that the stream morphology fits within the Rosgen Stream Classification System (Rosgen) described in the reference reaches. To create a design template, Mosaic's experts carefully measured the important geomorphic characteristics of the stream segments to be disturbed. The plan incorporates, among other factors, design specifications for meander patterns, longitudinal valley and bed slopes, bank slopes, cross-sectional area, widths, depths, large woody debris, pools, riffles, bends, and sediment composition. It is the second known low-order stream creation plan in Florida to provide this level of detail. The stream plan represents an overall improvement upon the existing conditions at the site, as Mosaic is generally only mining small, shallow, intermittent stream segments of significantly lower ecological value and will create streams that are less erosive and will have greater in-stream habitat diversity and availability than the segments to be mined. Accordingly, the reclaimed streams segments will at least maintain and in many cases improve the ecological functions served by the existing segments. Special emphasis has been placed on assuring that post-reclamation soils are a suitable growing medium for the proposed reclaimed habitat. Soils will be used to closely mimic the native Florida soils profile. Mosaic witness Schuster established that proposed reclaimed soil conditions do not pose limitations on Mosaic's ability to create upland and wetland ecosystems. The soil reclamation plan uses parent materials available after mining in a sequence similar to the textural or horizon sequence in soils present at the site before mining. This soil profile will have a created topsoil layer as a suitable growing medium and subsurface layers whose thicknesses can be adjusted to achieve the drainage class, that is, hydraulic conductivity or permeability, that is needed to support the post-reclamation hydrology. The overburden used to form the lower part of the reclaimed soil sequence is native Florida soil and underlying geologic material. The overburden is excavated so that the matrix can be mined, but then the material is put back in the mined areas in a sequence that resembles native soil horizons. Where available, the top layer of the soil sequence will be a direct transfer of muck/topsoil pursuant to the permit conditions. Where donor topsoil is not available, other appropriate materials can be used if approved by the Department. Possible methods may include establishment of cover crops, green manuring, mulching, and sod placement, all of which have been demonstrated to provide organic matter and a suitable growing medium for reclaimed wetlands and will facilitate success of the wetlands. These methods comport with the requirements of Florida Administrative Code Rule 62C-16.0051(3). For reclamation, Mosaic will use various thicknesses of materials including sand tailings and overburden, depending on the area to be reclaimed and the needed hydraulic conductivity as dictated by the modeling that is required. Sand tailings will be utilized in native habitats. Sand tailings have a much higher rate of hydraulic conductivity than overburden, which is low, but not impermeable. Reclaimed soils behave similarly to native soils. On site development of soil morphology at reclaimed sites has occurred, including organic matter accumulation in the topsoil formation of redox concentrations, and other components of soil structure, which evidence that the same natural processes are present in both reclaimed and native soils. Lee County's witnesses incorrectly assumed an overburden cap that will not be present. Mosaic has provided appropriate cost estimates for financial assurances of reclamation and has satisfied the BOR requirements of providing third-party estimates and draft financial assurance documentation. The first three years of mitigation at one hundred ten percent is $3,957,356.00. This amount is determined to be sufficient. Lee and Sarasota Counties' witnesses could provide no contrary cost estimates of actual comparable large-scale projects. The proffered costs of Lee County witness Erwin were rejected in another mining case (the Ona case), they ignore the definitions of "waste" and "mining operations," and they assume mitigation requirements not found in the BOR. The evidence supports a finding that all adverse impacts, including any secondary impacts, associated with the Project will be temporary and will be offset by the proposed reclamation. All of the proposed impacts from the Project will occur within the Peace River Basin, and Mosaic's proposed mitigation will all occur within the Peace River Basin as well. Therefore, the cumulative impacts review requirements of Section 373.414(8)(a), Florida Statutes, and Florida Administrative Code Rule 40D-4.302(1)(b) are satisfied. The BMPs put into place will prevent adverse secondary impacts from occurring during mining, and no adverse secondary impacts are expected from the project post- reclamation. No secondary impacts to listed wildlife are reasonably expected to occur, based on the buffers and on the post-reclamation habitat that will exist. In summary, Mosaic has demonstrated by a preponderance of the evidence that the proposed project meets the permitting criteria of Florida Administrative Code Rule 40D-4.301 and associated BOR provisions. Florida Administrative Code Rule 40D-4.302(1)(a) requires reasonable assurances the proposed activities "will not be contrary to the public interest" as determined by balancing seven factors. See also § 373.414(1), Fla. Stat. For the reasons set forth below, the preponderance of evidence supports a finding that the public interest factors set forth in the statute and rule weigh in favor of issuing the permit. The Florida Legislature has recognized that phosphate mining "is important to the continued economic well-being of the state and to the needs of society." See § 378.202(1), Fla. Stat. Mosaic has demonstrated by a preponderance of evidence that both the public and the environment will benefit from the project as described above. Mining of the site will also result in a more general benefit to the public, including local residents. It is estimated that mining of the site will result in fifty million tons of recoverable phosphate rock reserves, which will be used to make fertilizer. Mosaic employs 272 people at its South Fort Meade facility and spends approximately $75,000.00 per employee per year for direct wages, benefits, and compensation. In addition, it has been estimated there are four to five persons employed in support industries for each direct Mosaic employee, considering contractors, vendors, and suppliers. The site project is expected to generate up to $23 million in severance taxes, tangible taxes, property taxes, and other benefits to Hardee County over the life of the mine. The evidence shows that the proposed activities will not cause adverse impacts to the public health, safety, or welfare or to the property of others. Fla. Admin. Code R. 40D- 302(1)(a)1. Witness Burleson established that the water quantity criteria in BOR Chapter 4 have been satisfied and that no flooding problems will occur. No environmental hazards or public health and safety issues have been identified. Section 373.414(1)(a)1., Florida Statutes, Florida Administrative Code Rule 40D-4.302(1)(a)1., and BOR Section 3.2.3.1 have accordingly been satisfied. The evidence established that the proposed mining and reclamation will not cause adverse impacts to the conservation of fish and wildlife or their habitat, including endangered or threatened species, satisfying Florida Administrative Code Rule 40D-4.302(1)(a)2. and BOR Sections 3.2.2, 3.2.2.3, and 3.2.3.2. The evidence shows that the proposed activities will not cause adverse impacts to navigation or flow and will not cause harmful erosion or shoaling. Fla. Admin. Code R. 40D- 4.302(1)(a)3. The evidence shows that the proposed activities will not cause adverse impacts to fishing or recreation or marine productivity, and the lakes will enhance fishing and recreation. Fla. Admin. Code R. 40D-4.302(1)(a)4. As a matter of law, Section 378.202(1), Florida Statutes, provides that phosphate mining is a temporary activity. Fla. Admin. Code R. 40D-4.302(1)(a)5. The parties have stipulated that there will be no adverse impacts on historical or archaeological resources. Fla. Admin. Code R. 40D-4.302(1)(a)6. The evidence shows that the current condition and relative value of functions of the site landscape have been significantly affected over time by agricultural activities, causing alteration of natural streams and wetlands and low fish and wildlife utilization. A preponderance of the evidence established that these negative impacts will be ameliorated by the proposed reclamation. Fla. Admin. Code R. 40D-4.302(1)(a)7. In light of the above, Mosaic has provided reasonable assurances that Section 373.414(1)(a), Florida Statutes, Florida Administrative Code Rule 40D-4.302(1)(a), and associated BOR requirements for the public interest test have been satisfied, and those criteria weigh in favor of issuing the permit. Section 373.414(6)(b), Florida Statutes, establishes the appropriate mitigation for wetland and surface water impacts associated with phosphate mines as follows: "Wetlands reclamation activities for phosphate and heavy minerals mining undertaken pursuant to chapter 378 shall be considered appropriate mitigation for this part if they maintain or improve the water quality and the function of the biological systems present at the site prior to the commencement of mining activities." Part III of Chapter 378, Florida Statutes, addresses phosphate land reclamation, and the Department has adopted specific regulations pursuant to this part, which are found in Florida Administrative Code Rule 62C-16.0051. For the reasons set forth below, Mosaic has demonstrated by a preponderance of the evidence that the reclamation and restoration standards in Florida Administrative Code Rule 62C-16.0051 have been met. The parties stipulated the Project will meet the safety standards in subsection (1) of the rule. Any temporary structures will be removed following mining and the area then reclaimed. Appropriate BMPs will also be installed. The Project will meet the backfilling and contouring requirements of subsection (2). Specifically, the evidence shows that the area will be backfilled and contoured to achieve the desired landforms; slopes will be no steeper than a 4:1 ratio; bank stabilization techniques will be used; and post- reclamation contouring and topography will help ensure that the reclamation plan and hydrologic response is successful. The reclamation will meet the requirement in subsection (3) that Mosaic use good quality topsoil when available and other suitable growing media to achieve the planned vegetative communities. The Project will meet the acre-for-acre requirement for wetlands because more acres of wetlands and surface waters are being proposed to be restored than will be impacted. The Department uses FLUCCS Category II to determine whether the minimum type-for-type requirement is met. Thus, the type-for-type requirement is met by looking at the forested wetlands acreage overall and the herbaceous wetlands acreage overall. Subsection (4) has been satisfied by the proposed CRP. While the herbaceous wetland fringe of the lakes is included in the acre-for-acre, type-for-type calculation, the open waters of the lake are not. The Project will meet the type-for-type requirement in the rule because, category-by- category, type-for-type, more than a 1:1 ratio of forested and herbaceous wetlands are being restored. As noted above, the wetlands and streams were mapped during the application process in accordance with the directives of the Department and the requirements of subsection (4). Where wetlands are directly associated with or adjacent to streams, restoration of both is integrated and included in the restoration plan. Non-wetland and wetland floodplains will be restored as directed by the Department in accordance with this rule. No natural lakes or ponds exist on site, thus the portion of this rule related to natural lakes does not apply. All natural streams proposed for impact will be restored foot-for-foot based on Rosgen Level II. More stream linear feet (65,700 feet) are being replaced than are being mined (58,769 feet). Therefore, the requirements of subsection (5) have been met. Subsection (6) has been satisfied after accounting for the Littoral Zone Variance described below authorized by Florida Administrative Code Rule 62C-16.0051(13). The design of the reclaimed wetlands and lakes will maximize beneficial drainage, provide fish and wildlife habitat, maintain downstream water quality, and incorporate a variety of vegetation and hydraulic zones. Greenbelts of vegetation are incorporated. Subsection (7) has been satisfied. There will be no water quality concerns either during mining or post-reclamation with the reclaimed streams, lakes, wetlands or other surface waters. Subsection (8) has been met; the Project is not expected to cause flooding, and the original drainage pattern will be restored to the extent possible. Subsection (9) has been satisfied with respect to waste disposal. Areas used for clay settling will be minimized, and only three CSAs are proposed for the site, as fifty percent of the clays generated at the site will be disposed of in previously-permitted CSAs in Polk County. Backfilling of mine cuts is the highest priority use for the site's sand tailings. No tailings will be sold. The evidence showed that sand tailings will not be permanently stored above natural grade, although temporary stock piles are authorized to facilitate reclamation. Reclamation of CSAs will occur as expeditiously as possible. Solid waste was not an issue in this proceeding. The revegetation proposed for the Project will succeed to achieve permanent revegetation and meets the requirements of subsection (10). Mosaic has submitted a plan for revegetation that lists species by species what will be replaced through planting or seeding into each of the different types of wetlands. The revegetation plan and planting tables provide clear guidance to the entire reclamation plan and will minimize erosion, conceal the effects of mining, and recognize the requirements for fish and wildlife habitat. Upland cover and forested upland requirements in the rule will be met under the CRP; the appropriate forested densities are set forth in the CRP and can reasonably be expected to be established within one year. Likewise, the wetland vegetative cover requirements in the CRP meet the rule requirements and can be easily met. As set forth above, the wetlands to be created are of the types Mosaic has successfully recreated in the past, and advances in reclamation and maintenance techniques will further ensure the vegetation plan is successfully implemented. The vegetative plans, including the stream plan, provide appropriate habitat for fish and wildlife. The best available technologies will be used to restore and revegetate wetlands. Furthermore, the vegetation plan meets and exceeds the requirements for the use of indigenous species. Native plants and grasses will be used in all native habitats. As required by subsection (11), measures have been identified and incorporated into the CRP to offset fish and wildlife values lost as a result of mining operations. Special programs to restore and/or reclaim particular habitats, especially for endangered and threatened species have been identified. A Site Habitat Management Plan has been incorporated to prevent adverse impacts to threatened and endangered species, and the proposed conservation easement and reclamation plan will protect and restore currently impaired habitat to a better condition. Specifically, Dr. Durbin testified with respect to the CRP requirements for aquatic species, including fish and macroinvertebrates; the best fish and wildlife habitat onsite will be preserved. Mr. Simpson testified regarding habitat preservation and reclamation activities, the proposed wildlife management plans, and the proposed enhancements to habitat that will benefit wildlife, including listed wildlife. Mosaic has sufficiently addressed the requirements of subsection (11) of the rule in the CRP. Subsection (12) has been satisfied. The proposed mining and reclamation schedule in the application documents comports with the rule requirements by including time schedules for mining, waste disposal, contouring, and revegetation, and the completion dates for such activities comport with the rules. Mosaic has proposed, and the DEP has indicated an intent to issue, the Littoral Zone Variance as an experimental technique to improve the quality of the reclaimed lakes pursuant to this subsection and Section 378.212(1)(e), Florida Statutes. Given the depth of the proposed reclamation lakes, Mosaic applied for, and the Department has proposed to grant, a variance from the water quality standard for DO in the lower portions of the lakes. The DO Variance from Florida Administrative Code Rule 62-302.530(31) is being sought pursuant to Sections 373.414(6)(a), 373.414(17), and 403.201(1)(a), Florida Statutes, which provide the minimum standards for DO levels in surface waters. Class III freshwater water quality standards apply to those portions of the site that constitute surface waters as defined by Florida law. For at least those reclaimed lakes that will connect offsite to downstream waters or wetlands (Lakes 1, 3, and 4), there is no dispute that Class III water quality standards would apply. The minimum water quality standard for DO in freshwater systems is 5.0 milligrams per Litre (mg/L). The evidence demonstrated that alternatives to the lakes in terms of both size and location were considered. The Department considered the proposed lakes as part of the elimination and reduction of overall wetland impacts on both South Fort Meade Polk and Hardee. On balance, it is a preferable alternative to use the available sand resulting from mining of the Hardee County portion of the South Fort Meade mine to eliminate lakes and create additional wetlands on the Polk County portion of the mine rather than utilize that sand to eliminate all lakes on the Hardee County portion of the site. This is especially true given the desire of Hardee County for recreational lakes and the Department's preference to reduce the overall acreage of the reclaimed lakes at the South Fort Meade mine. It is not feasible to make the lakes shallower given the available materials. There is no practicable means known or available for increasing DO in the deep pockets of lakes of the proposed depths that would not have a potential negative effect. This fact has been established and recognized by the Florida Legislature in Section 373.414(6)(a), Florida Statutes, which provides that the deep pits left by mining operations may not meet the DO criteria below the surficial layers of the lakes. The Legislature has further provided that a variance from the DO standard can be issued where deep lakes must be left as part of the reclamation plan. Id. The evidence established that lower DO levels may at times occur in the deep pockets of some of the reclaimed lakes to the same extent and effect as those lower levels occur in natural lakes of similar depths. This effect will occur only in the hypolimnion, or lower levels, of the lakes in the hotter summer months. The evidence likewise established that it is very unlikely that DO levels below 1.0 mg/L will occur at any time in any of the proposed reclaimed lakes. Provided the DO levels do not drop below 1.0 mg/L for any extended period of time, the only expected effect of the occasional seasonal reduction in DO in the lowest level of the reclaimed lakes will be to temporarily exclude fish from those lower portions of the lake during the summer months, which is also true of natural deep lakes. The evidence established that reclaimed lakes function well and provide habitat for fish and wildlife. Water quality standards will be met in all of the lakes other than occasional seasonal DO violations in the lower portions of the deepest lake. All water quality standards, including DO, will be met at all lake outlets and discharge points. All other applicable regulatory criteria will be met in the reclaimed lakes. Dissolved oxygen levels in the upper layers of the lakes are expected and required to meet the minimum DO criteria in Florida Administrative Code Rule 62- 302.530 and will be adequate to support healthy fish populations. The evidence showed no downstream impacts will occur due to the DO Variance for the lakes. The evidence showed reclaimed lakes support healthy fish and macroinvertebrate communities and provide recreational fishing opportunities. Even older lakes, such as the Tenoroc lakes (located in an old mining area in Polk County), provide substantial recreational fishing and wildlife utilization opportunities. This testimony was not rebutted. The evidence offered by Lee and Sarasota Counties as a means to increase DO levels in the reclaimed lakes actually demonstrated that artificially attempting aeration of a deeper lake can have negative environmental effects. Therefore, the testimony of witnesses Janicki and Merriam has not been credited. By a preponderance of the evidence, Mosaic proved entitlement to the DO Variance for the lakes pursuant to Sections 373.414(6)(a) and 403.201(1)(a), Florida Statutes. Given the location of the reclaimed lakes and as a means of experimenting with different reclamation planting techniques to create a variety of shorelines, Mosaic also applied for, and the Department has proposed to grant, a variance from the reclamation requirements in Florida Administrative Code Rule 62C-16.0051 pertaining to the planting of littoral shelves or zones around reclaimed lakes. The Littoral Zone Variance is being sought under Section 378.212(1)(e), Florida Statutes, from Florida Administrative Code Rule 62C-16.0051(6)(a) and (b), which provides minimum water zones for emergent and submerged vegetation, known as the littoral zones of the lakes. Subsection (6) of the rule provides for a twenty-five percent high-water zone of water fluctuation to encourage emergent and transition zone vegetation, and that a twenty percent low water zone between the annual low water line and six feet below the annual low water line to provide fish bedding areas and submerged vegetation zones. These vegetative zones are collectively known as the littoral zone of a lake. Traditionally, these percentages have been met in reclaimed lakes by sloping and creation of a uniform fringe of herbaceous wetland vegetation completely encircling the lake; however, such uniform fringes are not typical around natural lakes, which vary in composition and width. Rather than create a uniform band of vegetation around the lakes, Mosaic has proposed to reclaim the littoral zones around the reclaimed lakes by concentrating them in several broad, shallow areas, including the outlets of the lakes where such outlets occur (Lakes 1, 3 and 4). Of the proposed lakes, one will meet the littoral zone requirement, two will have over twenty percent of the total area in littoral zone, and the remaining lake will have a littoral zone of just under fourteen percent of the total area. The littoral zones will be reclaimed by constructing broad shelves of differing depths and planting the shelves with herbaceous wetland plant species. This design provides the environmental benefit of herbaceous vegetation at the outlet to provide increased filtration of nutrients or sediments of any water overflowing from the lakes during other high water events. This increases environmental benefits at the outlet of the lakes and has the potential to improve water quality downstream. Further, the proposed clustering of the littoral zones in several broad shallow shelves, rather than creation of a thin fringe around the lakes as is customary, will benefit wildlife and fish by creating a more extensive wetland ecosystem in lieu of the monoculture typically created by the thin littoral fringe. The proposed littoral zone clustering also creates more useable shoreline for boating, fishing, and recreational activities in the areas where the littoral zones are not clustered, with the added benefit of tending to separate the wildlife usage in the littoral zone clusters from the human usage in the upland forested areas of the shoreline where minimal littoral zones are planned. This is an experimental technique that advances reclamation methods by balancing habitat, water quality, and recreational considerations. Mosaic has demonstrated that the Littoral Zone Variance comports with Section 378.212(1)(e), Florida Statutes, and may be issued.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Environmental Protection enter a final order granting Mosaic's applications for the requested permits and variances. DONE AND ENTERED this 18th day of December, 2008, in Tallahassee, Leon County, Florida. S DONALD R. ALEXANDER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 18th day of December, 2008.
Findings Of Fact Respondent James Tucker seeks a modification of a previously approved permit to extend the depth of the dredging proposed to -8 feet from the previously approved -5 feet. Respondent proposes to maintenance dredge a 35 x 275 foot canal aid entrance channel into Santa Rosa Sound to a maximum depth of -8 feet; to permanently moor the USS Showboat, a motorless concrete ship to piling driven in the canal; to place riprap around the ship with a 3 foot drainage pipe leading through the riprap on both sides of the vessel to allow drainage to pass the vessel and enter Santa Rosa Sound; and thereby to create a holding pond between U.S. 98 and the vessel. Tucker owns the property containing the canal located immediately west of Petitioner's property. The canal serves as a drainage conduit for several acres in the vicinity of and including U.S. 98 Highway and drainage enters the canal by a 3 foot culvert under U.S. 98. The canal is largely full of sediment and is anaerobic. Although fish are caught in the Sound off the church's and Respondent's property, there are no grass beds that would be disturbed by the proposed dredging. Witnesses who testified to the existence of grass beds had not actually entered the water to verify the existence of such beds. While there are numerous other sources of pollution entering Santa Rosa Sound, including the City's discharge of sewage effluent, the discharge through the canal here under consideration is significant. By dredging the canal, mooring the vessel therein, and installing riprap around the vessel, a holding pond will be created between the vessel and the end of the canal which abuts U.S. 98. While the volume of this holding pond is not as large as would be required to adequately accommodate the drainage area served, the proposed holding pond will improve existing conditions. The 3 foot conduits to be installed in the riprap will provide drainage from the settling pond to Santa Rosa Sound, which drainage should contain less pollutants entering Santa Rosa Sound than now enter. The proposed project would improve the water quality of Santa Rosa Sound. The dredging at the entrance of the canal of state owned lands will cause no appreciable biological damage to the bottom and the dredged area will be allowed to return to its normal depth after the vessel is moored, i.e. there will be no maintenance dredging to maintain this -8 foot depth. Respondent Tucker will install silt screens and maintain turbidity limits within those prescribed by DER during dredging. Tucker has also consented to a condition to be placed in the permit that he be required to maintain the settling pond by future dredging when necessary. Although the City Council of Ft. Walton Beach voted to deny any request to relocate the USS Showboat to any place in Ft. Walton Beach, Exhibit 8 indicates that the property containing the canal is zoned C-2 and relocating the vessel to this site would be in conformity with the City's zoning laws.
Findings Of Fact Seago Group, Inc., the Applicant/Intervenor, owns a tract of land in Lee County Florida, which is completely surrounded by creeks and canals, including Indian Creek on the north. The Intervenor intends to develop the parcel and is seeking a permit from the Department to construct a bridge over Indian Creek to provide access. There is presently a cul-de-sac at the end of Indian Creek Drive on the north side of the creek. The bridge would extend Indian Creek Drive over the creek onto the applicant's property. The Intervenor held an option to purchase land for the right-of-way on the north side of the creek. The Petitioners own property adjacent to Indian Creek Drive. The Petitioner Helwig owns property upon which be resides, and which adjoins the proposed bridge site. The Petitioner Rowe owns property upon which he resides several lets up Indian Creek Drive from the proposed bridge site. The Intervenor originally made application to construct a road over Indian Creek at a different, but nearby location using a culvert rather than a bridge. The Department's staff appraised the application and recommended that it be denied because deposits of fill around the culverts would have eliminated productive submerged creek bottoms, interfered with the ability of the aquatic habitat to support fish and wildlife populations, and eliminated shoreline vegetation which serves to filter runoff which enters the creek, thus helping to preserve good water quality in the creek. The application was withdrawn by the Intervenor before final action was taken on the Department's staff recommendations. The Intervenor thereafter filed the instant application. The application was to construct: ... A 26 ft. wide by 50 ft. long vehicular bridge constructed with 21" prestressed slabs on pile bent abutments over Indian Creek in Lee County, Florida. The application further provided: All work will be conducted on upland with no need for any equipment or material required to be in the water. All equip- ment and material will be delivered by upland access. The application did not reflect that Intervenor had previously sought a permit for the culvert constructions, but the Department was clearly aware of the previous applications and its appraisal of the bridge application was treated as a supplement to the appraisal of the culvert application. In its Notice of Intent to Issue the Permit, the Department erroneously designated the bridge as a "two-span" bridge. The application is actually for a one-span bridge. In its notice the Department added the following specific conditions: Turbidity screens shall be used during construction. Drainage at bridges approaches shall be by swale and no ditches shall be constructed. Drainage shall meet county specifications. No dredging or filling in Indian Creek. No bridge construction shall take place until ownership or easement is obtained through Mr. David Ruch's property pursuant to letters on file with the Department. The Intervenor has acceded to the specific conditions and agreed to comply with them in the event the permit is ultimately issued. All of the pilings for the proposed bridge would be constructed at or above the mean high water line of Indian Creek. Some turbidity could be expected during construction, however, the use of turbidity screens would eliminate any significant impact upon the water quality, fish and other wildlife resources of Indian Creek during construction. The only potential source of pollution from the bridge after construction would be from runoff entering Indian Creek from the bridge. The amount of runoff that would result from a 50 ft. long by 26 ft. wide bridge is negligible. The limited impact that such runoff could have upon the creek can be eliminated by having drainage flow through a swale system. Since the Intervenor has agreed to utilize a swale system, it does not appear that the bridge would have any adverse impact upon the water quality of Indian Creek or any other water body. Neither does it appear that the bridge would adversely affect fish and wildlife resources. Since all bridge pilings would be constructed at or above the mean high water line, transitional zone vegetation can continue to flourish along the shoreline. The planned clearance between the creek elevation at mean high water and the bridge is seven feet. The bridge would thus impede traffic by any boats that protrude more than seven feet above the water line. This presents no significant navigational impact in Indian Creek. There are two avenues for navigating from the bridge site on Indian Creek to the Caloosahatchee River. One of these avenues is presently obstructed by a bridge with an elevation less than that proposed by the Intervenor. The other avenue is obstructed by a very shallow area that will not permit navigation by other than very small vessels. The Department in the past has denied applications to dredge that shallow area. The Intervenor and the Department have submitted Proposed Findings of Fact. To the extent that these proposed findings have not been included in the foregoing Findings of Fact, they are hereby adopted as fully as if set forth herein.
