Findings Of Fact By Joint Application for Works in the Waters of Florida filed June 22, 1994, Petitioner requested a permit to dredge about 500 square feet of uplands for a boatslip and to maintenance dredge 1700-1900 square feet in an adjacent canal, removing 125 cubic yards of material waterward of mean high water. The Application describes the work as including a vertical concrete seawall running 92 feet inside the boatslip, a cat walk from the boatslip to the canal, and a roof over the boatslip. A drawing attached to the Application depicts the proposed boatslip at the east end of the Petitioner's lot and with rounded corners to facilitate flushing. By Notice of Permit Denial executed October 24, 1994, Respondent advised that the permit was denied. The Notice states that water quality in the surrounding canal system is generally poor with low dissolved oxygen (DO) levels. The shoreline vegetation is primarily mangroves, which are tall but not robust. The proposed dredge area consists of a healthy littoral shelf with live oysters and shells. Based on the foregoing site description, the Notice denies the permit because of impacts to the conservation of fish and wildlife and marine productivity and a degradation of the current condition and relative value of the affected area. The Notice relates all of these factors to the loss of the mangroves and dredging of the adjacent canal bottom. The Notice adds that the project would have an adverse cumulative impact on water quality and public resources if similar projects were constructed. In the alternative, the Notice suggests that Petitioner eliminate the dredging into the uplands and canal and instead construct a boat shelter in the canal in an area of existing adequate water depth. By letter dated November 7, 1994, Petitioner challenged the denial. The letter states that Petitioner has maintained an environmentally productive shoreline consisting of mangroves, oysters, and rip rap, rather than concrete seawalls, as are found along the shoreline of most of his neighbors. The letter suggests that, if Petitioner followed Respondent's suggestion and built a slip in the canal, Petitioner would be permitted to do maintenance dredging in the artificial canal. The letter concludes that the maintenance dredging and shading of an over- the-water boathouse would have more impact on the environment than dredging uplands and a small access channel to the slip. Petitioner's residence is located in Aqualane Shores, which is an established residential subdivision located between Naples Bay on the east and the Gulf of Mexico on the west. Petitioner's lot is located about two-thirds of the distance down a long, relatively wide artificial canal known as Jamaica Channel. Jamaica Channel intersects Naples Bay to the east of Petitioner's property. Jamaica Channel is a Class III waterbody. Petitioner owns about 200 feet of shoreline at the corner of Jamaica Channel and a shorter, narrower canal. The entire area is heavily canalized and completely built-out with nearly exclusively single family residences. Most of the shoreline in the area is bulkheaded with concrete seawalls. Jamaica Channel was dredged in the early 1950s. Early riprap revetment crumbled into the water and in some areas became colonized by oysters, which supply food and filter impurities from water. Shoreline owners weary of repairing riprap installed vertical seawalls, thereby destroying the oyster beds and intertidal habitat. But much of the riprap adjacent to unbulkheaded shoreline eventually was stabilized by mangrove roots. The absence of concrete seawalls along Petitioner's shoreline has permitted a significant colony of oysters to populate the 25-foot littoral shelf running along Petitioner's shoreline. The oysters form a hemisphere, thickest at the middle of Petitioner's shoreline and narrowest at the east and west edges, narrowing to a width of as little as 6-10 feet. In recent years, Australian pines were removed from Petitioner's shoreline. As a result, mangrove seedlings have successfully occupied much of the shoreline. The proposed boatslip would be located at the east end of the shoreline where there is a natural gap in the mangroves. As a result, only three mangroves would have to be removed, and a relatively narrow band of oysters would be dredged and, as offered by Petitioner, relocated. The proposed dredging involves uplands and submerged bottom. As to the uplands, Petitioner intends to create a slope in the slip with the rear one to one and one-half feet shallower than the front, although this slope is not reflected on the Application. The purpose of the slope is to facilitate flushing. Petitioner evidently intends to dredge sufficient material to fill the rear of the slip with two feet of water at mean water and the front of the slip with three feet of water at mean water. The dredging in Jamaica Channel would involve an 18-20 foot wide path leading to the slip. Beyond the oysters, the bottom is fine sandy substrate with scattered rock. The relocation of oyster-covered rocks might be successful, if there are sufficient areas suitable for colonization that have not already been colonized. However, the dredged areas would not be recolonized due to their depths. Presently, the Application discloses level dredging down to an elevation of -5 NGVD. Petitioner's intent to slope the boatslip has been discussed above. Although Petitioner did not reveal a similar intent to slope the area dredged in Jamaica Channel, Petitioner's witness, Naples' Natural Resource Manager, testified that he would insist on similar sloping the entire length of the dredged area, so that the deepest area would be most waterward of the boatslip. If the dredged canal bottom were not sloped, Petitioner proposes removing about 4.25 feet of material about ten feet from shore, about 3.4 feet of material about 22 feet from shore, about 1.8 feet of material about 30 feet from shore, and about 0.5 feet of material about 40 feet from shore. Petitioner did reveal that the cross-section indicating a dredged depth of -5 feet applies only to the centerline of the dredge site, which would be tapered off to the east and west. The slope of the taper was not disclosed, but it is evident that the affected areas within 20 feet of the shoreline would be dredged at least two feet deeper and, in most areas, three feet deeper. The deepening of Jamaica Canal in the vicinity of the shoreline would not only eliminate existing oyster habitat, but would also eliminate habitat currently used by small fish. The deepening of Jamaica Channel in the vicinity of the shoreline would also impact water quality in the area. Water quality in Naples Bay and Jamaica Channel is poor and violates water quality standards for DO. Due to poor mixing of freshwater infusions and saltwater, DO levels deteriorate with depth. Where DO levels are probably adequate in the shallows around Petitioner's shoreline, the proposed dredging would likely result in depths at which violations could be expected to occur. Petitioner offers to install an aerator to introduce oxygen into the water. Ignoring the fact that the aerator was to operate only in the boatslip and not in the remainder of the dredged area, Petitioner did not show the effect on DO levels of this proposal. Even if the aerator had been shown to result in a net improvement in area DO levels, Petitioner also failed to show how the operation of the aerator would be guaranteed to extend indefinitely, or at least until the dredged areas were permitted to regain their pre-dredged depths. Petitioner argues that he could construct an over-the- water boathouse and maintenance dredge, and the resulting environmental impact would be greater. Several factors militate against this proposed alternative and thus preclude consideration of this alternative against the proposed project. Most significantly, the oysters have occupied the littoral shelf adjacent to Petitioner's shoreline for a period in excess of 20 years. There is considerable doubt as to whether Petitioner would be permitted to maintenance dredge under these and other circumstances. Respondent argues more persuasively the issue of cumulative impacts. There are about 350 residences in Aqualane Shores, of which only 150 have boatslips similar to that proposed by Petitioner. This raises the prospect of an additional 200 boatslips as a cumulative impact on water and biological resources.
Recommendation It is hereby RECOMMENDED that the Department of Environmental Protection enter a final order denying the application. ENTERED on May 26, 1995, in Tallahassee, Florida. ROBERT E. MEALE Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings on May 26, 1995. APPENDIX Rulings on Petitioner's Proposed Findings 1-2: adopted or adopted in substance. 3: rejected as irrelevant. 4-5 (first sentence): adopted or adopted in substance. 5 (remainder)-6: rejected as irrelevant. 7: rejected as recitation of evidence. 8: adopted or adopted in substance. 9: rejected as unsupported by the appropriate weight of the evidence. 10: rejected as unsupported by the appropriate weight of the evidence, irrelevant, and not findings of fact. 11-12 (first sentence): adopted or adopted in substance. 12 (remainder): rejected as recitation of evidence and as unsupported by the appropriate weight of the evidence. 13: rejected as unsupported by the appropriate weight of the evidence. Rulings on Respondent's Proposed Findings 1-20: adopted or adopted in substance. 21-25: rejected as unnecessary. 26-29: adopted or adopted in substance. 30: rejected as unnecessary. COPIES FURNISHED: Virginia B. Wetherell, Secretary Department of Environmental Protection Twin Towers Office Building 2600 Blair Stone Road Tallahassee, FL 32399-2400 Kenneth Plante, General Counsel Department of Environmental Protection Twin Towers Office Building 2600 Blair Stone Road Tallahassee, FL 32399-2400 Miles L. Scofield Qualified Representative Turrell & Associates, Inc. 3584 Exchange Ave., Suite B Naples, FL 33942 Christine C. Stretesky Assistant General Counsel Department of Environmental Protection 2600 Blair Stone Road Tallahassee, FL 32399-2400
Findings Of Fact Petitioner, Kyle Brothers Land Company, Inc., is a land development and sales firm with principal offices located in Coral Gables, Florida. On November 12, 1980, Petitioner filed an application seeking the issuance of a permit/water quality certification by Respondent, Department of Environmental Regulation, to authorize the excavation of four canals 525' long x 2' wide each with sixteen 10' x 35' boat moorings and to complete excavation on three partially completed canals, all lying in Sections 4 and 5, Township 665, Range 29E, Big Pine Key, Monroe County, Florida. 2/ A copy of the permit application may be found as Petitioner's Exhibit 2. Petitioner's application was received by the Department on November 25, 1980, and reviewed for compliance with applicable state water quality standards, conservation criteria in Chapters 253 and 403, and rules promulgated thereunder. Additional information requested by Respondent was furnished by Petitioner in early 1981. A field appraisal of the project site was submitted by the Department staff on March 16, 1981. On April 8, 1981, the Department issued its intent to Deny the requested permit. A copy of the intent to Deny may be found as Petitioner's Exhibit 6. The Department based its intention to deny the permit on the grounds (a) applicant had not provided reasonable assurance that long-term impacts of the project would not result in violation of State Water Quality Standards for all surface waters and for Class III surface waters, and specifically including the following standards: biochemical oxygen demand, detergents, oils and greases, bacteriological quality, dissolved oxygen and nutrients, (b) applicant had not affirmatively shown the project would not interfere with the conservation of marine resources, and (c) applicant had not provided an affirmative showing of the public interest which would be served by the proposed dredging. Petitioners disputed the allegations set forth in the intent to Deny and requested a formal hearing to contest the denial of its application. That request precipitated the instant hearing. The proposed project is located within Port Pine Heights, a subdivision located on the northern end of Big Pine Key which lies approximately 25 miles east-northeast from the City of Key West. More than seven hundred lots have been sold within the subdivision since 1959 although only forty homes have been built to date. Of that total, approximately fifteen homes are located in the southern half of the subdivision where the proposed project is found. Two main canal systems have been constructed in the subdivision, each having an east-west channel that opens directly to Pine Key Channel to the west, and a number of closed-end finger canals extending to the north and south. The two east-west channels and the finger canals are artificially created bodies of water. The specific project site involves the southern canal system which is approximately six thousand feet long and fifty feet wide. It has fourteen finger canals extending from its northern side, including those to be unplugged and excavated, and twelve to the south. The finger canals are 525 feet long by 25 feet wide. The canals to be dredged lie on the landward end of the east-west channel and were constructed by blasting around 1960. A cease and desist order issued by the United States Army Corps of Engineers in 1973 halted completion of the canals at issue and they have remained either plugged or unexcavated since that time. Petitioner wishes to undertake the proposed work so that it may complete the subdivision begun in 1959. Upon completion, the six canals will have ninety-six waterfront single-family residential homesites of which twenty have already been sold. Because many homesites have more than one lot, a saturation of the area with homes is unlikely. Additionally, the construction of homes within the subdivision has been extremely slow (only forty homes built in twenty years) and no substantial increase in that pace is expected even after the project is completed. Under applicant's proposal the excavated canals will have depths of -4 feet mean low water (MLW) at the dead end increasing to -6 feet MLW at the connection of the existing fifty foot main canal, or an average depth of five feet. The existing canals are all deeper than the proposed canals. The excavation will be done in native oolite limerock and the spoil from the canal system will be used to grade the adjacent upland and form a rip-rap shoreline above the rock level. The entire area will be enclosed by turbidity screens until all work is completed. The substrate at the location is Miami oolite, a type of limestone which is characterized by the presence of fissures and hollows. Even though some groundwater-to-canal water interchange will occur, stormwater runoff has had no deleterious effects on other areas of the canal system since residential development began in the subdivision some years ago. Additionally, oolite rock is typically filled with crevices and dead-ends which hold water or leachate and can aid in minimizing the groundwater-to-canal water interchange. A modified tidal flushing analysis was performed by Dr. John D. Wang, Jr. on behalf of Petitioner in July, 1981. 3/ The analysis investigated the mixing and circulation (flushing) of tidal water in the existing canal system and determined the quantity of water exchange between Pine Channel and the existing canal system. After the project is completed, the overall flushing characteristics and concomitant water quality in the proposed system will be significantly improved. These improved characteristics are primarily due to the new canals having a favorable ratio of MLW volume to tidal prism 4/. As such, there will be higher tidal velocities and more favorable mixing between the canals and the ocean. This is Particularly true for those canals that lie closest to Big Pine Channel. Because the overall flushing time will be reduced on almost all of the system, its ability to purge itself of unwanted constituents will also improve. The Department's concern that boat slips to be cut into the sides of the new canals will cause dead areas of water is not valid. The moorings will not affect flushing because the proposed canals are sufficiently shallow to insure good mixing. Water quality tests within the existing canal system were made by Petitioner in 1980 and 1981 and by Respondent in 1981. The results of applicant's 1981 testing may be found as Petitioner's Exhibit 5, and include samplings of dissolved oxygen, temperature, oils and greases, detergents, total and fecal coliforms, biochemical demand (BOD), and nutrients. Respondent's testing included only dissolved oxygen and has been received as Respondent's Exhibit 5. Water quality sampling reflected only one total coliform and no fecal coliforms in the most developed canal in the southern canal system. Readings in the older area of the subdivision adjacent to a septic tank disclosed an extremely low bacteria count. Given the rate of growth over the past twenty years, and the almost nonexistent presence of bacteria, the proposed canals should not cause a violation of the bacteriological criterion. Measurements of dissolved oxygen (DO) in the existing canal system and offshore ambient waters were taken by both Petitioner and Respondent. Dissolved oxygen is the amount of oxygen in the water, usually measured in a liter of sea water, and is needed for respiration of animals and organisms in the water. Biochemical demand (BOD) was also measured in the existing canal system. This measures the amount of oxygen demanded by organics or organisms in the water to convert oxygen to dioxide and water. High BOD levels indicate high amounts of organic debris in the water. High BOD and a lack of dissolved oxygen would cause an anaerobic environment which would probably produce hydrogen sulfide. State water quality standards require that the concentration of dissolved oxygen "shall never be less than 4 milligrams per liter" in predominately marine waters. Rule 17-3.121(14), Florida Administrative Code. Measurements in the open canal system taken by Petitioner in August, 1980, and by Respondent in September, 1981, reflected readings of less than 4 milligrams per liter during the early morning hours. However, such readings are not unusual in natural settings such as Big Pine Key following a long period without light or photosynthesis. The values did not fall below the minimum standards in the canal system on samples taken after 10:00 a.m. Measurements taken in the ambient waters adjacent to the canal system reflected lower readings than those in the canal system. These values also increased during the later hours of the day. increased flushing in the proposed system and shallower depths will increase oxygen throughout the canals. Therefore, its construction cannot be expected to cause DO levels to drop below the present levels found in the canals and ambient waters. Indeed, the shallower canals will be strong producers of oxygen with a high degree of photosynthetic activity and will contribute oxygen to the rest of the canal system. With the exception of one BOD reading of 1.02, all were less than one unit, and may be characterized as extremely low. These levels will not be increased as a result of the proposed activity to the extent that dissolved oxygen will be depressed below 4 milligrams per liter. Oil and grease concentrations may not exceed 5 milligrams per liter under state standards. Readings taken by Petitioner in the canals and ambient waters were less than 0.01 milligrams at every station. Automobiles and boat traffic are generally the primary source of oils and greases. The Department's concern that subsequent development within the subdivision will substantially increase the input of oils and greases into the waters is speculative at best, particularly in view of the low rate of growth in the subdivision over the past twenty years, the extremely low readings in already developed areas, the fact that present concentrations would have to be multiplied 5,000 times to approach proscribed levels, and the back-sloping of lots by Petitioner to minimize stormwater runoff into the canals. Detergents are barely measureable in the existing canal system and ambient waters. In order to exceed state standards, the present levels would have to be increased at least 500 times. Although the Department expects detergents to be added to the waters through stormwater runoff and septic tank leachate, this assertion is inconsistent with present readings taken at stations near homes with septic tanks. In the context of this proceeding, nutrients may be defined as fertilizers or food for marine plants. An excess of nutrients in sea water can increase the level of biochemical demand which in turn decreases dissolved oxygen thereby causing eutrophication of the canal system. The nutrient levels of the present system are low. This was evidenced by Petitioner's measurements of ammonium, nitrates, inorganic phosphate and silicate. The low readings were present even in the older, more developed areas of the canal system. Respondent fears that development would hasten eutrophication in the canal system because bacteria and nutrients would be introduced through septic tanks and stormwater runoff. However, stormwater and septic tank leachate have had no adverse effects on the main canal system which has been in use since 1967. Indeed, continual monitoring of the system by Petitioner since 1974 reveals that the system is a thriving biological community in which nutrients are being utilized by animals at the rate the system produced them. No violation of applicable state standards is expected after the project is completed. The present canal system has a rich and diverse natural population of flora and fauna. However, all areas are not uniform in their attributes or communities. The water within the system is clear. The biological communities are more extensive and diverse within the existing canal system than offshore. Because the new canals will not exceed six feet in depth, they can be expected to develop quite extensive communities of plant life on their bottoms. Colonization of algae on the sides of the canals should occur within a few weeks after the canals are opened. The optimum level of diversity of plants and animals should be reached within four years. The amount of photosynthetic activity on the walls and bottom of the new system due to its shallow depth will contribute oxygen to the other canals within the system. The new canals will make a significant contribution to the total marine ecosystem. The method of sewage disposal utilized by homes that have been built at the subdivision is septic tanks. Septic tanks would likely be used by any new homes built in the area in the immediate future. Petitioner is willing to construct a central sewage treatment plant whenever development is sufficient to make a plant economically feasible. in Petitioner's judgment, at least thirty homes on or around the new canal system must be built before it is willing to undertake such a project. The use of septic tank by the forty homes now built in the subdivision has not caused violations of any bacteriological quality standards to date. Moreover, testing of those same standards in another canal system on Big Pine Key by Respondent disclosed that septic tank leachate had not contravened those standards. (Respondent's Exhibit 1). The addition of thirty more homes in the subdivision over an extended period of time should not increase the amount of contaminants to a level that violates state water quality standards. Petitioner commenced development of its subdivision at Port Pine Heights in 1959. The southern portion of the subdivision in which the proposed canal system is located was first platted in 1963. Five lots on the unfinished canals have been sold prior to April 3, 1970. Completion of the canals was a condition of the contracts for deed to those lots. Petitioner has unsuccessfully sought to obtain the necessary permits to complete the canal project in issue in 1974 and 1976.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the application of Kyle Brothers Land Company, Inc. for a permit/water quality certification to excavate four dead end canals and to complete excavation of two partially constructed dead end canals on Petitioner's subdivision in Big Pine Key, Monroe County, Florida, be GRANTED. DONE and ENTERED this 20th day of January, 1982, in Tallahassee, Florida. DONALD R. ALEXANDER Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 20th day of January, 1982.
The Issue Whether Michael Chbat's 2008 application for a Wetland Resource Permit (WRP) to construct a culvert extension across his property in Walton County, Florida, should be approved?
Findings Of Fact La Grange Bayou Estates La Grange Bayou Estates is a residential subdivision in Freeport, Walton County, Florida. The subdivision lies to the north of the shoreline of Choctawhatchee Bay. It can be viewed as divided roughly in half between bayfront lots south of an east-west road that transects the subdivision and lots that are north of the road. The subdivision is platted and the plat is in the public records of Walton County. Filed with the Clerk of the Circuit Court in and for Walton County, Florida, on September 15, 1982, the plat ("the 1982 Plat") shows 29 residential lots in the subdivision as of that date. See Petitioner's Ex. 6. Lots 1 through 16, according to the 1982 Plat, are the bayfront lots, south of a 40-foot wide road designated as a private road in the plat. That road is now known as Alden Lane. Wetlands over which the Department has jurisdiction ("jurisdictional wetlands") comprise much of the southern portion of bayfront lots and the drainage easement. Among the bayfront lots are both Lot 9 which belongs to Mr. Chbat and Lot 8 which belongs to Mr. Sheehey. A 50-foot easement lies between Lot 9 and Lot 8 and is described more fully below. The presence of jurisdictional wetlands on Mr. Chbat's lot over which he hopes to install the culvert extension requires that he obtain a WRP. To the north of Alden Lane are lots numbered by the 1982 Plat as 17 through 29. The lots are served by Alden Lane and, in what is roughly the northeast quadrant of the subdivision, by two other roads. One of the roads is shown on the 1982 Plat as a "40' PRIVATE ROAD." Id. A 2006 aerial photograph introduced into evidence by Chbat designates the road "unnamed." See Chbat Ex. 5. The other is designated as a "graded county road," on the 1982 Plat. By 2006, it had come to be known as Beatrice Point Road. Id. Beatrice Point Road transects a pond that runs roughly 340 feet (excluding about 30 feet of roadway) in a northeasterly direction from Alden Lane to the southern edge of an area north of the subdivision shown on the 1982 Plat to be un-platted. The pond is most likely the result of a "borrow pit" dug in order to obtain fill for the construction of the roads when the subdivision was initially developed. The southern boundary of the pond lies along approximately 140 feet of Alden Lane's northern edge. The pond is across the street from Lots 9, 10 and 11 of the subdivision. The pond is also not far northeast of the 50-foot easement (the "Drainage Easement") between Lots 9 and 8. The Drainage Easement The Drainage Easement is just to the west of Lot 9. It is noted on the 1982 Plat as a "50' EASEMENT (PRIVATE)." Id. The 50-foot wide Drainage Easement runs the length of the western boundary of Lot 9 and the length of the eastern boundary of Lot 8. The northeast corner of the Drainage Easement is approximately 30 feet from the southwest corner of the pond separated from the pond by the roadway of Alden Lane. The eastern boundary of the Drainage Easement is 226.37 feet in length, or if taken to the middle of Alden Lane, 246.3 feet. The western boundary is 206.13 feet long or if taken to the middle of the road, 226.65 feet. The purpose of the Drainage Easement, as is evident from its denomination in this recommended order, is drainage. As Mr. Street definitively put it at hearing, it is "now and always has been intended to drain stormwater to the [B]ay." Tr. Vol. III at 179. Mr. Street's opinion of the function of the Drainage Easement is supported by drawings submitted by Mr. Chbat as part of the WRP application. The drawings show that the Drainage Easement's function is facilitated by three culverts north of the Easement (referred to during the hearing as "pipes") each of which is intended to direct stormwater at its point of discharge toward the Drainage Easement. See Chbat Ex. 1. One of the culverts ("the Drainage Ditch Culvert") serves a drainage ditch that is to the north of the Easement and Alden Lane. According to the drawings, the drainage ditch lies on the other side of the "un-named road" from the pond, that is, to the west of the pond, and is some 40-to-50 feet north of the Drainage Easement. The Drainage Ditch Culvert extends from the ditch to the southern half of Alden Lane from where it appears from the application's drawings that stormwater would be conveyed to the western side of the Drainage Easement along it's border with Lot 8 and on toward the Bay. In fact, it is a functioning culvert that "conveys water from a swale on the side of the road into the [D]rainage [E]asement." Tr. 64. Once in the Drainage Easement, according to the drawings, the water should flow into the Bay out of a "cut," id., that is labeled on the drawings as an "existing trench." See Chbat Ex. 1. The trench, however, has been filled in with sand by tidal activity or sediment deposited by stormwater or both. The trench has not been maintained, and it no longer exists. The other two culverts (the "Pond Culverts") lie east of the Drainage Ditch Culvert. They catch overflow from the pond caused by stormwater and convey it under and through Alden Lane toward the Drainage Easement. The westernmost Pond Culvert (the "Western Pond Culvert") appears to terminate in Alden Lane near its southern edge just north of the Easement. At the time of hearing, however, it was not functioning properly. "[I]t is full of sand and silted up . . .", tr. Vol. I at 58; "[t]he pipe to the west is clogged and it is not functioning." Tr. Vol. I at 64. It is also at an elevation that would keep it from serving drainage purposes in all but the most severe storm events. See Chbat Ex. 9 at 22. The other Pond Culvert, (the "Eastern Pond Culvert") terminates in the northwest corner of Lot 9 at the border between Lot 9 and the Drainage Easement about 10 feet southeast of the terminus of the Western Pond Culvert. The Eastern Pond Culvert is the culvert with which the Amended Permit is concerned, that is, it is the culvert to be extended by the permit. Calling it a "pipe," Mr. Street offered the following about the assistance the Eastern Pond Culvert offers in conveying stormwater into the Drainage Easement and down to the Bay: There is currently a pipe that discharges into that easement. There . . . was an attempt to place the water from the . . . pond into the easement. And the natural flow of water on this entire property from the road to the [B]ay is north to south. At some point, at least 2004, that drainage easement contained a conveyance at its southern end that would safely discharge stormwater to the [B]ay. Tr. Vol. III at 179-80. Petitioner Sheehey and Lot 8 Thomas Sheehey is the owner of Lot 8, where he has a residence in which he makes his home. He has lived in the residence approximately five years. During that time, Mr. Sheehey has fished in the Bay and enjoyed the use of his kayak and his waverunner on the Bay. He also enjoys "sitting down having a cup of coffee and looking at it," tr. vol. III at 151, as well as watching his neighbors fish. The recreational uses to which he puts the Bay is the reason he chose to purchase a bayfront lot in La Grange Bayou Estates. Over the period of time that he has resided on Lot 8, Mr. Sheehey has observed the effects of rain events on his lot and well as lots close to Lot 8. He has also taken pictures of his property and the near-by lots. Among the photographs were four taken after rain events or "after a wet period," tr. vol. III at 88, at some point in the last four years. The four photos were introduced as a composite exhibit, Petitioner's Ex. 2, with each photograph marked as 2A, 2B, 2C or 2D. Mr. Sheehey could not specify when the pictures were taken in the past four years other than that if a picture had a certain dock in it, then it was taken after January of 2009. Petitioner's Ex. 2A was taken from Mr. Sheehey's lot looking toward the Bay. It shows an area of the lot under water separated from the Bay by a ridge. Petitioner's Ex. 2B is a picture taken from Lot 13 looking west across Lots 12, 11, 10, 9 "down through 8." Tr. Vol. III at 86. Much of what is photographed is among trees and vegetation emerging from water standing above the surface of the soil. Petitioner's Ex. 2C is a picture taken from Alden Lane looking south across Mr. Chbat's property. It shows a wide swath of water that extends from the road across most of the property to the Bay. The water is either in a swale or constitutes overflow outside the swale. The most recent of the four is Petitioner's Ex. 2D, which shows the dock referred to by Mr. Sheehey that was built in early 2009. It is a picture taken from Lot number 13 toward the west through Lots 12, 11, 10, 9. Like the others, it shows vegetation standing in water to the north of the Bay. Taken together, the four pictures in Petitioner's Exhibit 2 demonstrate that significant portions of the lots depicted are under water following sufficient amounts of recent rain. The four photographs that comprise Petitioner's Exhibit 2 are not the only photos taken by Mr. Sheehey that were introduced into evidence. Three other photographs of Mr. Sheehey's, Petitioner's Exhibits 7A, 7B and 7C, were admitted following testimony about them from a long-time observer of the flow of water from Alden Lane to the Bay. A Long-time Observer Thomas Eugene Cummins had lived in La Grange Estates "[t]wo months shy of 20 years," tr. vol. III at 7, at the time of his testimony. His house was the fourth to be constructed in the subdivision. Over the two decades of his residence, the pond between Alden Lane and the property north of the subdivision has been in existence. Consistent with the drawings submitted to DEP as part of the application, when asked where the pond overflows today, Mr. Cummins answered "it drains under Alden Lane on to Mr. Chbat's lot." Tr. Vol. III at 8. Asked by Mr. Chesser at hearing, "When the water comes out of the pond, is it possible to know where it spreads?"1/ Mr. Cummins testified: On really heavy rains, I have watched the normal color of the pond change from its dark blackish gray color into the reddish color that the clay has washed down into it, flow under Alden Lane and on to Mr. Chbat's lot, and then proceed west through the wetland on lots eight, seven, six, and my five, and turn reddish color even in my lot. Tr. Vol. III at 9-10. Mr. Cummins knew the source of the "red color" of the stormwater: red clay introduced to La Grange Estates by the County half a decade earlier. Mr. Cummins testified: Beatrice Point Road, which is the road that runs over the pond, about five years ago the county did some repair on the road and actually put red clay in certain spots to even it out. Tr. Vol. III at 9. Prior to the county's work on the road referred-to by Mr. Cummins, there had been no red clay in the neighborhood. Alden Way, for example, has no red clay. It is a road composed of shell. The only red clay in the subdivision is that which is on Beatrice Point Road. The water that runs onto Mr. Cummins' lot following a heavy rain rises to as much as 12 inches.2/ The water rises as high as it does because it is held back by a naturally-occurring land formation between the Bay and Mr. Cummins property. This geo-formation was referred-to at hearing as the ridge line or the ridge. The Ridge The Ridge was described by Mr. Cummins as a vegetated mass of earth that most of the time, even in heavy rains, sits above the water that collects on the bayfront lots of La Grange Estates. The Ridge prevents a substantial amount of stormwater runoff from entering the Bay from the wetlands on the southern portion of the subdivision's bayfront lots. For that reason, the ridge is called "our upland,3/" tr. vol. III at 13, according to Mr. Cummins. Between Lot 9 and Lot 5, the ridge varies in width "anywhere between 10 feet . . . up toward Mr. Chbat's lot, down to [Mr. Cummins'] lot where its around 30 or 40 feet [wide.]" Id. (It may extend, in fact, across all of the bayfront lots.) The ridge meanders not far from the shoreline. Id. In some places it is as narrow as five feet. The height of the ridge varies as well from as low as one foot to as high as two and half feet. Mr. Street also testified about the Ridge, referring to it in his testimony as a "ridge line": Now, there is a ridge line, and there's been a lot of testimony about this ridge line, that it exists across all of the lots. My testimony was, essentially, related to the review that I did, which was primarily associated with lots eight and nine, and the drainage easement between them. And from what I can tell, the elevation of that ridge line is give or take three. Elevation three, not a height of three. An elevation of three. It could be lower, and perhaps, is higher. And its subject to the vagaries of a number of factors, flow of stormwater, wave action, tidal influence, and the like. And these accretions and depositions of sand over time change that ridge line. And sometimes, it opens up. And sometimes it may not have a natural opening, depending on where you are along that entire stretch of beach. * * * [T]o the extent there is an opening in that ridge line, water will flow naturally to the bay. Tr. Vol. III at 180-181. An "east west flow of water," tr. vol. III at 181, along the bayfront lots, that is, a flow of water either in an easterly direction or a westerly one is contrary to the flow from Alden Lane north of the lots to the Bay south of the lots. Whether flowing east or west, the water in the southern portions of the bayfront lots is "controlled by the ridge line." Id. In other words, stormwater that flows from north to south across the bayfront lots, including Mr. Chbat's and the Drainage Easement, is going to collect and begin to flow from east to west or west to east at some point north of the Ridge before it drains into the Bay. The only exception to east-west flow, as made clear by Mr. Street, is when and if there is an opening in the Ridge that allows the water otherwise held back by the Ridge to flow southward into the Bay. The east-west flow of the water along the Ridge was described at hearing as "unnatural." Id. In fact, it is not un-natural. The Ridge is the cause of the east-west flow and, as Mr. Street testified, the Ridge is the result of natural processes such as tidal influence, wave action, accretion and deposition of sand.4/ The Ridge is shown in Petitioner's Exhibit 7A,5/ another photograph taken by Mr. Sheehey. The ridge as shown in the picture is well vegetated and above water to its north and higher than the Bay to its south. It is quite clear that if there is no opening in the ridge to the Bay, stormwater north of the ridge is forced to flow in east-west directions and is prevented from flowing into the Bay. Petitioners' Exhibit 7B is a photograph of the southern terminus of a swale (see paragraphs 40 - 49, below) on Mr. Chbat's property. It shows the swale cut through the Ridge. Water, however, does not appear to be running from the end of the swale into the bay. It appears that the end of the swale is a few feet from the Bay separated by a narrow sandy area on the shore. Nonetheless, the photograph shows that there is potential for stormwater to flow from the swale when the swale has more water in it. Petitioner's Exhibit 7C is a picture of the pond6/ across the street from Mr. Chbat's Lot 9. Mr. Chbat and Lot 9 Michael Chbat is the owner of Lot 9. He purchased the lot "[t]o build a house on it." Tr. Vol. I at 22. Because he has family close by (in Fort Walton Beach), Mr. Chbat expects to use a house built on the lot for weekend visits. His ultimate aspiration is to live in a house on Lot 9 after he retires from his position as a construction engineer with the City of Tallahassee. At hearing, Mr. Chbat described Lot 9 on the day he bought it: "the lot was overgrown. It drained from north to south. It had water standing on it. And it had a pipe [the Eastern Pond Culvert] on the northwest corner discharging." Tr. Vol. I at 23. He also described the state of the lot at the time of hearing. The Eastern Pond Culvert on the northwest corner was still there. The lot had been cleared to some extent to rid it of invasive species. Overgrown vegetation was trimmed or cleared to make room for a driveway permitted by the Department and "a parking pad in the front area of it, as well as an access pad in the uplands." Id. A dock had also been constructed from the property into the Bay. The most significant difference between the lot at the time of purchase and the lot at the time of hearing for purposes of this proceeding is that the lot now has a swale (the Swale) that runs from the point of discharge of the Eastern Pond Culvert "all of the way to the bay area." Id. The Swale The Swale was put in sometime after March 20, 2007, as the result of a Settlement Agreement fully executed on that date "By and Between Michael Chbat and Thomas L. Sheehey." Petitioner's Ex. 10. The Settlement Agreement followed events that commenced in 2004 when Mr. Chbat filed an application (the "2004 Application") with DEP for a WRP primarily to construct a house and a boardwalk leading from the house on Lot 9 to a dock in the Bay. The 2004 Application also proposed the extension of the Eastern Pond Culvert with a "pipe" along the western boundary of Chbat's property in a manner substantially similar to the culvert extension allowed by the Amended Permit that is the subject of this proceeding. On October 28, 2005, DEP proposed that the 2004 Application be granted. The permit (the "Proposed Original Permit") was assigned No. 66-0235320-001-DF. See Petitioner's Ex. 10, at 2. The Proposed Original Permit was challenged by Mr. Sheehey when he "filed a Petition for Administrative Hearing contesting certain action authorized under the [Proposed Original] Permit . . . specifically the relocation of a drainage pipe . . . ." Petitioner's Ex. 10, at 2. After referral of the petition to DOAH, Mr. Chbat and Mr. Sheehey wrote in the Settlement Agreement that they had "determined that it is in their best interests to settle this matter amicably pursuant to the terms hereafter". Id. Among the terms is that Chbat would file an Amended Application. See id. The agreed-to amendment to the 2004 Application was attached to the Settlement Agreement as Exhibit "A," a drawing of a "Drainage Swale Plan," produced by Genesis Group for Mr. Chbat. The drawing depicts a swale that runs from the discharge point of the Eastern Pond Culvert nearly the full length of the western boundary of Lot 9 to the Bay. See Exhibit "A" to Petitioner's Ex. 10. The Swale was designed to take the place of the 2004 Application's proposal for a "pipe"7/ attached to the point of the discharge from the Eastern Pond Culvert. The Settlement Agreement received the support of DEP because the Department believed that a swale would assist in improving the quality of the stormwater discharged to the Bay over the untreated discharge from the end of the "pipe." Pursuant to the terms of the Settlement Agreement the 2004 Application was amended. The Department amended the Proposed Original Permit accordingly and final agency action was taken with the issuance of a permit to Mr. Chbat (the "Final Original Permit") found in DEP Permit File No. 66-0235320-001- DF. Installation of the Swale The Swale was installed, but it did not work as intended. The result of the Swale's installation was more water on the lot rather than less. Mr. Chbat described the after-effects of the Swale: "it started bringing more water to the lot . . .". Tr. Vol. I at 31. The increased amount of water is the result of several factors, one of which is tidal influence: the tide from the Bay pushes water into the Swale. "[A]bout halfway on the swale . . . that water from the bay was meeting the water from the pipe . . .". Id. The water from the Bay tide and the stormwater conveyed by the Swale would meet at "about the middle of the span of the swale." Id. The result was "a lot more water," id., on the lot. Mr. Thomason confirmed Mr. Chbat's assessment that the reason the Swale did not function as effectively as necessary is tidal flow onto Lot 9 from the Bay particularly from high winds. But tidal flow onto Lot 9 and the interruption in the discharge of stormwater through the Swale are not the only problems. There is also a maintenance factor that accompanies tidal flow: sand deposition. Mr. Thomason elaborated: "[D]uring storm events or [just normal] wave action in the bay, sand is brought back up on to . . . the sandy area at the end of [Lot 9] next to the [Bay.]"8/ Tr. Vol. I at 62. The influx of sand onto Lot 9 is not just a problem for adequate functioning of the Swale. The Drainage Easement has "the same problem." Id. Both the Swale and the Drainage Easement are plagued by deposition of sand pushed landward by normal tidal influences and storm events. Maintenance of the Swale and the Drainage Easement, therefore, would assist the drainage of stormwater into the Bay. The tidal influence and maintenance issues that Mr. Chbat encountered with the Swale led him to apply for a different and new permit. That application was filed in 2008. The 2008 Application Mr. Chbat filed a "Joint Application for Works in the Waters of Florida" with DEP on August 1, 2008 (the "2008 Application"). See Chbat Exhibit 1. The work to be approved was similar to the work originally proposed in the 2004 Application in that both applications proposed installation of a "pipe" to be fixed to the discharge point of the Eastern Pond Culvert that would run along the western boundary of Lot 9 toward the Bay. A description of the work is contained in Section 10 of the 2008 Application: "Extension of an existing stormwater pipe within a private lot approximately 150 feet. The slope for the proposed pipe extension will be at minimum so that stormwater will be treated further, and minimizing erosion." Chbat Ex. 1 at 3. After the filing of the 2008 Application, Mr. Chbat learned that Mr. Sheehey objected to the newest Chbat proposal because he believed 150 feet is not lengthy enough to clear the Ridge. See Chbat Exhibit 2. In order to cure the objection, Mr. Chbat proposed a modification to the 2008 Application. He attached a "sealed and signed drawing," id., to a letter dated September 18, 2008, that he submitted to DEP. The drawing shows the extension to be 177 feet, 27 feet more than initially proposed by the 2008 Application. The additional 27 feet was intended to ensure that the discharge would be directly into the Bay in order to "eliminate any possible run-off impact to adjacent properties." Id. The modification was accepted by DEP." See exhibit number 19/ attached to the Amended Permit, Chbat Exhibit 4. There was conflicting evidence in the proceeding on whether the outfall from a culvert extension of 177 feet will be bayward of the Ridge. The issue was put to rest by Mr. Street’s testimony in rebuttal at the hearing. See Tr. Vol. III at 194 and 203-4. His testimony establishes that the point of discharge at the end of the culvert extension will clear the Ridge so that the discharge will be directly into the Bay. The Mound The culvert extension is designed at an elevation and with cover (presumably sod). The extension runs through jurisdictional wetlands and segments them. It does not, however, isolate any portion of the wetlands. The wetlands on Mr. Chbat's property and those to the immediate east and west of it, therefore, will retain their status as jurisdictional wetlands should the extension be installed. With its sod cover, the culvert extension will be a mini-berm (or a "mound" as Mr. Street called it) at an elevation of 17 to 18 inches above grade. Water that pools to its west will no longer be able to flow eastward of the mound (except rarely under the most extreme weather events.) Conversely, water that collects to its east will no longer be able to flow westward of the extension. It would have to be a severe storm event for water to rise above the mound. Mr. Chbat has never seen water rise to 18 inches above grade and Mr. Cummins testified the highest water ever gets on his property is roughly 12 inches. The Department approved the 2008 Application as modified to lengthen the extension to 177 feet and issued the Amended Permit. But an incorrect and critical assumption was made during review of the application that related to the mound. Review of the 2008 Application During his review of the application, Mr. Street, as DEP's stormwater engineer, assumed from the drawings that the Drainage Easement is functional.10/ The assumption was expressed in Mr. Street's testimony in the Department's case-in-chief: Q [D]id you determine whether the pipe, as it would be mounded . . . [the culvert extension covered in sod] . . . would create problems for storm water flow? A I looked at that. There were two conclusions that I drew. One was that the mound would create a higher water elevation on the Chbat property east of the mound, but would not create standing water west of the mound extending into the [Drainage E]asment . . . . Which on the drawings that I reviewed showed an existing trench at the south end of that easement. And it was my opinion that any water that fell west of the mound would exit through the easement. Tr. Vol. II at 92 (emphasis added.) Mr. Street's assumption that water would not pool to the west of the mound in the Drainage Easement and toward Mr. Sheehey's property was contradicted by Mr. Sheehey's stormwater engineer, Mr. Porterfield. THe Porterfield Testimony and Support for It at Hearing The testimony at hearing of Mr. Porterfield, who conducted a site visit, established the opposite of what Mr. Street assumed. The volume of stormwater runoff that pools east of the mound, that is, water on Lot 9, will not be as great as the volume as the water that pools west of the mound. Water that would have flowed onto Lot 9 from the Eastern Pond Culvert will flow directly to the Bay via the culvert extension. The extension will also protect the Drainage Easement and Lot 8 from water that would have flowed from the Eastern Pond Culvert onto that property. But there is a significant difference between stormwater to the west of the extension and to the east. To the extension's west, the Drainage Easement and Lot 8 will have to contend with stormwater from the Drainage Ditch Culvert, the culvert north of Alden Lane that does not convey stormwater from the pond but that like the Pond Culverts has a discharge point directed at the Drainage Easement. How often and to what extent pooling of stormwater will occur west of the mound due to its presence is difficult to determine on the state of this record.11/ No studies or analyses of the likelihood and severity of storm events and the volumes of stormwater runoff that would be produced by them were conducted by any of the stormwater engineers in the case nor were any such analyses done with regard to pooling caused by the presence of the covered culvert extension. The testimony of Mr. Porterfield, however, and other evidence, demonstrates that that additional collection of water west of the mound caused by the mound will occur following heavy rain. Mr. Street was present in the hearing room throughout the entire hearing, including during the presentation of Mr. Sheehey's case. As Mr. Street candidly testified on rebuttal after he had heard all the evidence: I would also maintain that the drainage easement which has signs of a historical usage as a drainage easement with a trench, in fact, that conveys water safely to the bay, that should be re-established and maintained. That’s what it’s there for.” Tr. Vol III at 181 (emphasis added.) Thus, it became clear to Mr. Street after listening to all the evidence in the case that the Drainage Easement has not been properly maintained. The trench that was expected to carry stormwater toward the Bay no longer exists. In short, the testimony of Mr. Street, for all his many strengths as a witness, falls short of supporting the position of the Department and Mr. Chbat. Having never visited the site,12/ he approved the project on the basis of drawings that do not conform to the on-site physical reality. When presented with the evidence at hearing that the Drainage Easement is not functioning, he championed re-establishment and maintenance of the Drainage Easement. Mr. Chbat placed part of the Swale's functionality problem on the tide pushing stormwater northward but his case also recognized the maintenance problem caused by deposition of sand that besets the Swale. Mr. Thomason, moreover, recognized that the Drainage Easement has the same maintenance issue. Mr. Chbat's stormwater engineer testified During storm events or just normal wave action in the bay, sand is brought back up on to. . . the sandy area at the end of [Chbat's] lot next to the water. And so that . . . tends to inhibit the natural flow down the swale . . . we have the same problem on the drainage easement . . . where sand builds up in that discharge. Tr. Vol. I at 62 (emphasis added). From this record, it is clear that neither the Swale nor the Drainage Easement functions properly. Their functional status, moreover, is due in significant part to lack of maintenance. It may be that maintenance ultimately will not solve the problem; maintenance efforts to keep the Swale and Drainage Easement clear of the sand deposited by tidal activity may require too much effort for them to be reasonably required. But that evidence was not produced. Indeed, the record was silent as to any maintenance efforts with regard to the Swale by Mr. Chbat or with regard to the Drainage Easement by the owner of the easement. The record is also silent as to whether DEP voiced any concern about the maintenance issues that beset the Swale. It is clear that concern was not raised by the Department in regard to the Drainage Easement until the rebuttal phase of the hearing, since the assumption was made that the easement was properly maintained. Whatever communication may have occurred with regard to maintenance issues among the parties, the Department issued the Amended Permit.13/ The Permit/Authorization Number for the Amended Permit is 66-235320-002-DF.14/ Issued December 19, 2008, the Amended Permit has an expiration date of December 19, 2013. The expiration date coincides with the construction phase of five years on the face of the Amended Permit. See Chbat Ex. 4. Mr. Sheehey Challenges the Amended Permit On January 6, 2009, Mr. Sheehey, pro se, filed with DEP a petition (the "Petition") seeking a formal administrative hearing with regard to "Amended Wetland Resource Permit 66- 00235320-002-DF." Although the Petition makes reference to the Amended Permit, it seeks in the first instance enforcement of the Settlement Agreement that relates to the Final Original Permit. The Petition states: "Petitioner believes that the Florida Department of Environmental Protection has jurisdiction over this matter and should enforce the March 20, 2007 Settlement Agreement which requires that Permittee act in conformance with Exhibit 'A' of the Agreement [the drawing of the Swale]." In the event that DEP declined to enforce the Settlement Agreement, the Petition sets out disputed issues of material fact that relate to issuance of the Amended Permit. The Petition was referred to DOAH on February 19, 2009. One week before the final hearing, the Department filed the motion in limine that is discussed in the Preliminary Statement of this Recommended Order. The motion was granted to the extent that it sought to preclude Sheehey from introducing evidence that supported enforcement of the Settlement Agreement since the 2008 Application, which, while bearing similarity to the 2004 Application, is nonetheless an independent application that should be approved or denied on its own merits without regard to the 2004 Application, the Proposed Original Permit, the Settlement Agreement or the Final Original Permit. The case proceeded to hearing on the remaining issues raised by the Petition: 1) whether Sheehey has standing to contest approval of the 2008 Application; 2) whether Chbat gave the notice required by Section 373.413, Florida Statutes, and 3) whether Chbat's application meets the criteria in statutes and rules for issuance of the Amended Permit. Standing The findings of fact relevant to Mr. Sheehey's standing are found in paragraph 9, above. Notice Notice of the 2008 Application was published in The Defuniak Springs Herald-Breeze, a newspaper published in Defuniak Springs, Walton County, Florida. The notice was published on October 23, 2008. The evidence presented by Mr. Sheehey concerning lack of legal notice consisted of testimony by Mr. Sheehey at hearing in response to questions from his counsel. See Tr. Vol. III at 134. The testimony does not establish that Mr. Sheehey was a person who had filed a written request for notification of any pending application affecting his particular area. The testimony of Mr. Sheehey, moreover, establishes that he was given oral notice of the application by Mr. O'Donnell within four days of its filing. WRP Permitting Criteria To obtain a WRP, an applicant must satisfy the criteria in Florida Administrative Code Chapter 62-312 and Section 373.414, Florida Statutes. These criteria govern a range of topics including water quality. Water Quality15/ Florida Administrative Code Rule 62-312.080 provides that no permit shall be issued unless the Department has been supplied with reasonable assurances that the proposed work will not violate water quality standards. Water that enters the pond spends some amount of time in the pond (residence time) before flowing out. During residence time, solids drop out of the water so that the quality of the stormwater that flows out of the pond is reasonably expected to be better than the quality of the stormwater runoff when it entered the pond. Vegetation surrounding the pond, furthermore, enhances the quality of the water in the pond, whether the water’s source is runoff or rain falling directly into the pond. The water that flows out of the pond north of Alden Lane is “existing discharge.” Tr. Vol. I at 65. It generally made its way to the Bay prior to the Swale. Some of it makes its way to the Bay via the Swale now; some of it outside the Swale as overflow. The culvert extension will convey that discharge to the Bay if the extension is installed. The quality of the water is not significantly less when it discharges to the Bay via the Swale or otherwise from the Chbat property than when it would enter the culvert extension should it be installed. It is true that the Swale would have provided filtration and additional treatment to the discharge from the Eastern Pond Culvert as does the Chbat property in general. But that does not mean that the quality of the culvert’s discharge is a concern. The Swale may have been an option preferable to the extension of the culvert as far as water quality goes but all parties agree that the Swale has failed as a conveyance (albeit Mr. Sheehey maintains that the Swale would work with proper maintenance.) That there is a discharge method that improves the quality of the discharge, such as a swale, does not mean that the discharge to the Bay via the culvert extension is of insufficient quality. None of the parties tested the quality of the discharge from the Eastern Pond Culvert. The Department, nonetheless, offered evidence with regard to its quality. The Department concluded that the quality of the pond and its discharge were not of concern. Had the pond been contaminated to an extent that would have given rise to concerns, moreover, the Swale or the culvert extension as a means of conveying the discharge to the Bay would not have made a “discernible difference.” Tr. Vol. II at 80. The Department provided evidence of assumptions made with regard to the quality of the water that led the Department to conclude that testing of the discharge was unnecessary. Mr. O’Donnell, the Department’s expert in the application of state rules and statutes in wetland resource permitting, detailed the assumptions at hearing: My assumption was that that pond was dug some time in the past as a way to provide fill for roads. That it was never any part of . . . [a] stormwater treatment system. And that it conveyed upstream water through the pond and then on down into Choctawhatchee Bay. It was strictly a [borrow pit and a conveyance pond.] It was never permitted as a treatment system in any way that I was aware of in my diligence [in determining whether the extension should be permitted.] Tr. Vol. II at 79. Once Mr. O’Donnell’s testimony entered the record at the behest of Mr. Chbat, the burden shifted to Mr. Sheehey to prove that the applicant had not provided reasonable assurance of water quality. Mr. Sheehey did not offer evidence of any testing of the discharge. Nor did he offer testimony that rebutted Mr. O’Donnell’s opinion. In fact, the testimony of Mr. Wilkinson (Mr.Sheehey's witness) supported Mr. O'Donnell's opinion with regard to water quality. See Tr. Vol. III at 112. In sum, the Department made assumptions that are found to be reasonable based on Mr. O’Donnell’s expertise and experience. Those assumptions were not shown to be unreasonable by Mr. Sheehey. The Department’s conclusions about water quality flow directly from Mr. O’Donnell’s reasonable assumptions. Reasonable assurances have been provided that the project will not violate water quality standards. Public Interest Test Choctawhatchee Bay is not designated as an “outstanding Florida water.” The test that Mr. Chbat must meet therefore is whether the activity proposed by the permit application is “not contrary to the public interest.” § 373.414, Fla. Stat. In making that determination, the Department is directed by the statute to consider and balance seven criteria. See § 373.414(a) 1-7, Fla. Stat. Of the seven, three are at issue once water quality is determined to be of no concern. Two of the three, “[w]hether the activity will be of a temporary or permanent nature,” Section 373.414(1)(a)5., Florida Statutes, and “[t]he current condition and relative value of functions being performed by areas affected by the proposed activity,” Section 373.414(1)(a)7., Florida Statutes, do not require in-depth consideration. With regard to the nature of the project time-wise, the evidence establishes that the culvert extension is intended to be permanent. With regard to current condition, the area affected by the proposed activity is a residential lot, a substantial portion of which is under water following heavy rain. To facilitate the conveyance of stormwater, the lot is served by the Swale. The Swale is not functioning optimally because of lack of maintenance and because of the Ridge. With regard to relative value from the standpoint of water quality, the function being performed by the lot and the Swale is little, at least as established by this record. While it is certainly true that the lot with or without the Swale will filtrate and otherwise treat stormwater runoff from the pond, the difference in the quality of the stormwater conveyed by the culvert extension from that which would enter the Bay without the extension is not significant. See the discussion above of Mr. O’Donnell’s accepted opinions. Of the seven statutory criteria to be weighed and balanced by the Department, the one that is central to this case is found in subparagraph 1., of subsection (1)(a): “[w]hether the [culvert extension] will adversely affect . . . the property of others.” The “property of others” in this case is the property of Mr. Sheehey. The Project’s Effect on the Property of Mr. Sheehey. For the reasons discussed in paragraphs 63-70, above, Mr. Chbat has failed to provide reasonable assurances that the project will not have a detrimental effect on the property of Mr. Sheehey. The extent of the detrimental effect to Mr. Sheehey's property is difficult to determine from this record but it is highly likely based on all the evidence of record that there will be a detrimental effect: additional flooding in heavy rain events.
Recommendation Based on the foregoing, it is recommended that the Department of Environmental Protection deny17/ the Amended Permit for the failure of Mr. Chbat to provide reasonable assurances that the project will not adversely affect Mr. Sheehey's property. DONE AND ENTERED this 14th day of January, 2010, in Tallahassee, Leon County, Florida. S DAVID M. MALONEY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 14th day of January, 2010.
The Issue The issues concern the request by Petitioner for a permit(s) to dredge in a man-made canal and to construct two boat houses and six boat slips.
Findings Of Fact Petitioner owns property in Marion County, Florida, from which he has legal access to a man-made canal that intersects the Oklawaha River. This river is an Outstanding Florida Water body. The canal and river are in Marion County, Florida. In November 3, 1989, Respondent received a permit application from Petitioner. This application sought approval to dredge in the man-made canal which is approximately 800 feet long. That canal is owned by the Canal Authority of Florida. The dredging activity would include removal of material at the mouth of the canal as it intersects the Oklawaha River. The applicant intends to expand by dredging the length in the landward extent of the canal from 60 feet to 120 feet and the width from 50 feet to 170 feet. In the landward extent of the dead-end canal, what is described as the boat basin, the applicant seeks approval for the construction of six boat slips and two boat houses. The relative design of the these activities and the placement of the spoil materials removed in the dredging are shown in the application to include responses to the omissions request. That application is found as the Respondent's Composite Exhibits No. 1. At present the applicant has a 30 foot pontoon boat in the dead-end canal. He has a 17 foot bass boat and his neighbor has a 24 foot pontoon boat that use the canal. With the advent of as many as six boats available for the six slips contemplated by this application, the boats would vary in length from 16 feet to 30 feet. In carrying out the dredging activities Petitioner states that he would use anchored turbidity curtains at the intersection of the canal and the Oklawaha River while dredging activities transpired. The exact location of the proposed project is the south shore of the Oklawaha River in Marion County, Florida, in Section 35, Township 14 South, Range 23 East. On June 1, 1990, Respondent noticed its intent to deny the permit. Following that denial Petitioner timely requested a formal hearing to consider his entitlement to the permit(s). The history of the dead-end canal in question is not clear from the record. Its present condition does suggest that it has existed for a considerable number of years. Its appearance does not reflect that routine maintenance has been performed to preserve its original configuration to include maintaining its original depths throughout its course. At the location where the canal intersects the Oklawaha River, the river runs in an easterly direction for a short stretch. Its flow regime at that point is quite swift. This intersection is in a bend of the river. The high energy flow at that juncture has created an undercut at the mouth of the canal and for some distance on either side. The landward extent of the canal or area of the proposed boat basin is an area which was dredged from uplands. The canal extends in an northerly direction to the river through a wetlands swamp. Spoil material from the original dredging had been placed on the east and west side of the canal. There was sufficient deposition on the west side to allow vehicular traffic. That bank of the canal provides physical access to the river. In the Petitioner's experience, at around the time of the application process the water levels in the river and canal were as low as they had been during his three years of observation. At other times during that three year period the water levels had been approximately two feet higher than the low levels described. It is, however, unclear from the record what the normal high and low ranges of water levels in the river would be at this location. Petitioner has observed that the water levels in the canal during the time in question is three feet in most of the canal except at the mouth as it intersects the river where the water level is shallower. As seen in the photographs a great deal of vegetation is present in the water in the canal causing it to be in a marsh like condition. Emergent vegetation exists in certain portions of the canal which indicates a generally permanent shallow water condition. The low water level in the mouth of the canal which has been described is only a few inches deep. The bottom of the canal where it enters the river is more substantial in compaction as compared to the rest of the canal. It is not clear when this compaction occurred, in particular whether it occurred following the original construction of the canal. Navigation is a problem for most boats in the condition of the canal as it was described at the time of hearing. Petitioner describes that he and other fishermen have navigated in the canal when the water levels were high enough to allow that navigation. The canal in its present condition serves as a habitat for wildlife. The wildlife includes blue winged teal, little blue heron, large mouth bass, bream and alligators. In order to mitigate the effects of this project Petitioner has offered to place a recycling water fall in or near the proposed boat basin to allow oxygen to be placed in that basin. This is described in the application documents. Petitioner proposes to landscape the slopes of the basin with boulders and natural vegetation. He proposes to place "no wake" signs along the canal. Notwithstanding the intent to use a turdibity curtain to protect against violations of turdibity standards in the waters in the canal and the adjacent Oklawaha River while dredging, problems of violation of Respondent's turbidity standards are expected to occur. This occurrence is probable given the relatively fast current in the river which precludes the efficient use of turbidity screens or curtains. Dead-end canals such as that envisioned in this project have water quality problems. Enlargement of the dead-end canal does not assist in addressing the problems, even taking into account the intention by Petitioner to recycle water in the proposed boat basin. The water quality standards that are likely to be violated concern dissolved oxygen and BOD (biological oxygen demand). The assurances Petitioner has given about these standards in terms of protections against violations are not reasonable assurances. The addition of six boat slips and the potential for greater use of the canal by boats other than those that presently exist creates an opportunity for other water quality violations. Those possibilities pertain to turbidity problems through the stirring of bottom sediments and a violation of standards for turbidity and nutrients through that process. Oils and greases are associated with the placement of boats in the dead-end canal and a violation of Respondent's water quality standards for oils and greases is possible. During high water events and other flushing events when water from the canal enters the river, the poor quality of that water from the canal will reduce the water quality in the receiving body of water, the Oklawaha River, potentially causing water quality violations in the river. More specifically related to the artificial water fall proposed by Petitioner, such a device is not generally found to be an acceptable solution in addressing any potential water quality problems created by the expansion of the dead-end canal system. In any event, that system of aeration only would address the dissolved oxygen water quality parameter and not other regulatory parameters. The dredging of the canal has adverse affects on the fish and wildlife presently using the waters in the canal through the adverse affect on their habitat. When the water quality is degraded as described it adversely affects public health, safety and welfare for those who use these waters. Petitioner has observed logs jamming in the curve of the river and the accumulation of sand around that area further closing the mouth of the canal. In order to keep the logs free from the canal entrance they have to be moved on a weekly or monthly basis. Petitioner would attempt to save as many trees as possible when dredging in the mouth of the canal. Petitioner intends to sod slopes where dredging occurs and to place berms to keep water from running off into the canal and to prohibit erosion in the area of the boat basin. Petitioner has in mind making it convenient for boats to turn around in the landward end of the dead-end canal and hiding those boats from the sight of persons on the river by keeping them in that area. However, Petitioner acknowledges that when boats negotiate inside the landward extent of the dead- end canal they churn up the bottom sediments and cause problems with water quality. More specifically, Petitioner's right of access to the mouth of the canal is an easement across the property of the Canal Authority of Florida. Petitioner owns the area of the boat basin which is at the far end of the canal. Activities by Petitioner in that portion of the canal about which he does not have ownership rights which violate Respondent's environmental regulations would be adverse to the interest of the Canal Authority of Florida. Petitioner intends to improve the road access along the bank of the canal as it offers access to the river. Two hundred fifty to three hundred feet of the canal length moving away from the river is through a swamp which is marshy with weeded vegetation on its slopes. The rest of the length of the canal is through an uplands. As you move up the slopes in the canal it goes from submerged to transitional to upland species of plants. It is a shallow water system where plants can live inundated or exposed. These are types of plants seen along edges of rivers or lakes where water flows slow. At the mouth of the canal, the compacted substrate has the appearance of what you would find on the edge of a deep creek or river channel. This material is compacted clay or rock with a sand overlay. The area is stabilized. The long term impact of this project is the elimination of vegetation within a marshy system thereby removing habitat for aquatic and semi-aquatic invertebrates and vertebrates and their breeding and feeding areas. In the dead-end canal systems the dissolved oxygen problems are presented by a slow moving regime of water and the suspension of nutrients and materials from the banks of the canal. The bottom materials that are stirred up by boats are transported to the river. Ordinarily canals are too deep to support the form of emergent vegetation found in some portions of the canal. The deeper the canal the more difficult the water problems, and the flushing times take longer. This is especially true with long canals such as the one at issue. This contributes to problems with violation of standards related to DO and BOD. While the canal itself is not an Outstanding Florida Water, the Oklawaha River's ambient water quality is at risk with the dredging activities contemplated by this project.
Recommendation Based upon the consideration of the facts found and conclusions of law reached, it is recommended that a Final Order be entered which denies the permit(s) for dredging and construction of boat slips and docks. RECOMMENDED this 21st day of February, 1991, in Tallahassee, Florida. CHARLES C. ADAMS, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 21st day of February, 1991. APPENDIX TO RECOMMENDED ORDER, CASE NO. 90-5734 Having considered the proposed facts of the Respondent they are subordinate to facts found. COPIES FURNISHED: Carol Browner, Secretary Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, FL 32399-2400 C. W. Pardee, Jr. 2769 Northeast 32nd Place Ocala, FL 32670 Douglas H. MacLaughlin, Esquire State of Florida, Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, FL 32399-2400
The Issue Is Respondent responsible for alterations to a dam over which Petitioner has jurisdiction? Has Respondent performed these alterations without the benefit of a permit issued by Petitioner? Should Respondent be required to make changes to that structure?
Findings Of Fact One and one-half miles east of Crestview, Florida, which is in Okaloosa County, a dam has been constructed. The dam construction has formed an impoundment area thereby altering the course of a tributary to the Shoal River, an Outstanding Florida Water Body. Respondent contributed to the construction which formed the dam. He did so without benefit of a permit from Petitioner. No other person has obtained a permit from Petitioner for the dam construction. Respondent is a resident of Crestview, Florida. At present the impoundment of water created by the dam is more that 10 feet but less than 25 feet in height from the natural bed of the water course at the down stream tow of the barrier formed by the dam. The work which has been done on the dam by the Respondent is based upon his belief that he is entitled to an easement at the stream crossing. The dam impoundment has no agricultural purpose. John Rittenour claims ownership of the land at the stream crossing and takes issue with Respondent's belief that Respondent has an easement for that crossing. Mr. Rittenour did not authorize Respondent to do the work at the subject site nor was Mr. Rittenour responsible for performing work at the subject site independent of Respondent's activities. There is no dispute concerning Respondent's ownership of property in the vicinity of the stream crossing. Prior to March, 1990, Respondent had made certain changes at the subject site to maintain a vehicular crossing. The pre-March, 1990 changes were to a structure which used a culvert to allow the water in the stream to flow through the crossing. In addition Respondent was trying to create a water impoundment area behind that structure prior to March 1990. The nature of these activities was not such that the Petitioner had a basis for imposing the regulatory requirement that Respondent obtain a permit to conduct the alterations at the subject site. In March, 1990, the dam at the subject site breached. As a consequence, other structures down stream also failed. Those structures belonged to Mr. Rittenour. The breach created conditions unsafe to the public. In April, 1990, following the breach, Respondent reestablished the stream crossing. The work which he did created the present dam height which had been described. The stream crossing provides local residents with access to their homes. There is another route to those homes, but its future availability is in question. On July 30, 1993, Jerry Sheppard, Senior Field Representative for Petitioner, inspected the subject site. The findings that he made at that time are set forth in Petitioner's Exhibit No. 3. That Exhibit roughly describes the structure in question. In particular, it references the fact that the dam height is approximately 10.5 feet as observed through the form of measurement already described. The dam is 13 to 15 feet in depth. It's width is approximately 200 feet. It has horizontal culvert pipes to allow water flow through the dam. One pipe is 18 inches in circumference. The other pipe is 36 inches in circumference. The inspection which Mr. Sheppard made on July 30, 1993, revealed that the changes to the structure following the breach in March, 1990, had increased the water impoundment area as to the landward extent of that water. Mr. Sheppard was concerned with safety problems associated with the dam which he observed on July 30, 1993. He found the overall construction to be of poor quality. There were problems with vertical slopes on the dam faces, trees were observed to be on the slopes and the aggregate material used for construction was sandy in composition. All these conditions contributed to the substandard construction. Mr. Sheppard was also concerned about a change in the surface water volume that was created with the increase in the impoundment area. This could cause greater safety hazards in a future dam breach than had been occasioned by the March 1990 breach. The March experience released a lesser volume of water by comparison to the expected volume of water with a future breach. Lance Laird, P.E., had accompanied Mr. Sheppard on the inspection at the subject site that was conducted on July 30, 1993. Mr. Laird is an expert in agricultural engineering and design of small dams. Mr. Laird is employed by Petitioner and was in its employ in 1993. Mr. Laird's observations concerning the dam that were made on July 30, 1993 are memorialized in a document which Mr. Laird prepared on August 2, 1993. That document is Petitioner's Exhibit No. 5. Pertinent to this case, Mr. Laird notes that the method of establishing the dam height was done by shooting the dam centerline at 50 foot intervals and the elevation of the tow by examining the elevation of the normal ground at station 1+75. Specifically, the dam crest was found to be at a height of 10.48 feet to 11.04 feet. Therefore, it was established that the maximum impounding capacity would be at 11.04 feet of dam height. On September 7, 1993, Mr. Sheppard spoke with the Respondent. Respondent told Mr. Sheppard that the Respondent had an easement across the stream to allow access to property away from the stream. For that reason, Respondent told Mr. Sheppard that Respondent believed he could make alterations or repairs to the structure at the stream crossing that would be acceptable. Respondent also told Mr. Sheppard that the stream crossing structure was there before Respondent purchased property in the area and that Respondent had been responsible for making the repairs which are under consideration in this case. On this occasion Respondent told Mr. Sheppard that there were three or four mobile homes further down the lane from the stream crossing, in addition to one house site located in the area of the stream crossing. Respondent's Exhibit No. 4 is a memorandum concerning the telephone conversation which was conducted between Mr. Sheppard and the Respondent on September 7, 1993. As described in the August 2, 1993 memorandum which reflected the findings on July 30, 1993, the road crossing was over a dam found at the perennial stream which goes under the roadway formed by the dam. As Mr. Laird observed, the effect of the two culverts is to back the water up to within 3 feet of the dam crest. A plywood stop-log is placed over the entrance of the 36 inch pipe that serves as a principal spillway. There is a plywood plug for the inch pipe; however, it was not installed on July 30, 1993. On that date Messrs. Sheppard and Laird noted a washed out area that serves as the emergency spillway that was approximately 20 inches wide. When Mr. Laird made his inspection on July 30, 1993, he was of the opinion that the dam would not meet current engineering standards for construction of an earthen impoundment dam. In particular, he believed that the utilization of horizontal pipes and the history of failure of the structure were indications that the dam did not have the hydraulic capacity to meet the design storms that are anticipated for this area. The location of the 36 inch pipe was such that it was canterlevered out from the road fill by about 5 feet. The side slopes were from steep to vertical on the back slope. The upstream slopes were not found to be as steep. In the August 2, 1993 report Mr. Laird expressed the opinion that the facility/dam needed to be modified to meet hydrological/hydraulic requirements and other construction standards for dams used as access roads. Mr. Laird specifically noted that a further dam breach would have adverse affect on Mr. Rittenour's property, and ponds which were down stream and possibly cause the failure of structures that Mr. Rittenour had put in place, all leading to the possibility of the release of sediments into the Shoal River. On November 3, 1994, Mr. Laird returned to the subject site for further inspection. He rendered a report of that inspection on November 4, 1994. That report is found as Petitioner's Exhibit No. 7. In the course of the November 3, 1994 inspection Mr. Laird observed that the appearance of the dam was similar to that on July 30, 1993. The principal difference was that logs and debris were now present in the inlet and outlet ends of both of the culverts/pipes. Some of the logs were fairly large. One log was estimated to be 12 to 14 inches in diameter and 20 to 25 feet long. This log was at the outfall of the 36 inch pipe. The consequence of this debris in the areas of the two pipes was to restrict the hydraulic capacity of the system. This was made more significant because the horizontal pipes had inherent limitations on their hydraulic capacity. Under the circumstances it was imperative that the debris be removed. On this visit Mr. Laird also noted that the pipes were uncoated and rusting, thus limiting their life span. On this visit Mr. Laird noted that the emergency spillway had now become filled with sediments that had eroded from the road leading down the hillside to the dam site. Mr. Laird expressed a concern about the method of construction and the material used in that construction and the susceptibility of those fill materials to erode. In particular, Mr. Laird observed that the material was sandy and for that reason susceptible to erosion. Finally, Mr. Laird noted upon this visit that the sizing of the culverts had not been proven to be adequate when considering their intended function in the dam. On November 15, 1993, Messrs. Morgan, Laird, Sheppard and Mitchell May met with the Respondent and his attorney at the subject site. The outcome of that meeting is memorialized in the memorandum from Mr. Morgan dated November 16, 1993, a copy of which is Petitioner's Exhibit No. 2 admitted into evidence. In the November 15, 1993 meeting, Respondent and his attorney were told about the various concerns which the Petitioner had about this dam consistent with the prior observations made by Petitioner's staff as described in this recommended order. Discussions were held concerning the means of correcting the problems. At this time Respondent indicated that he had been informed, by someone who was not identified, that the alternate route for residents in the area to gain access to their homes was being closed and that the stream crossing would then form the only means of ingress and egress to those properties. Respondent explained that he had spent $3,000 in improving the dam. Further he made mention that he had originally sold 12.5 acres of property around the impoundment created by the dam and no longer had any interest in the property. Although no resolution was reached concerning the proper disposition of the problem created by the dam, Mr. Morgan noted in his November 16, 1993 memorandum that this safety hazard that had resulted from the impoundment of water at the dam site by virtue of the deficiencies in the dam construction must be corrected if the crossing was to be used as the sole access route into the residences which have been described. On November 19, 1993, Mr. Laird prepared a memorandum in response to the request by Respondent's counsel through correspondence dated November 8, 1993, concerning the method of establishing Petitioner's jurisdiction over the dam pursuant to the dam height. The November 19, 1993 memorandum coincides with prior observations about the method to be employed in establishing that jurisdiction which are set forth in this recommended order. A copy of the memorandum is Petitioner's Exhibit No. 6. Petitioner's Exhibit No. 6 has a rough sketch and other calculations in support of the determination of the dam height. Concerning Mr. Laird's testimony at hearing, he reiterated that the establishment of the dam height was through a measurement of the down stream site in which the elevation difference between the impounded water and down stream elevation at the stream bed were critical factors in determining the potential hazard should there be a further breach of the dam. As established by Mr. Laird, proper methods of dam construction must be carried out in accordance with accepted engineering practices. In trying to determine acceptable engineering practices Mr. Laird relies on his experience as a professional engineer and expert in the design of small dams together a number of publications, to include publications from the Soil Conservation Services on design of dams, the U.S. Corps of Engineers and the Bureau of Land Reclamation. As Mr. Laird described at hearing, the dam design is deficient in that it is not made of suitable materials. Those materials are sandy. This allows water to migrate through the dam and to saturate the dam, thereby making the dam more prone to failure. The slopes on the back side of the dame are so steep that they cannot be maintained. The dam is eroding and two gullies have formed extending up to the crest of the dam. There is a third pipe in the dam face which is 18 inches in diameter and it is rusting. This pipe was there before the dam breach in March, 1990. It was left in place when repairs were made following that breach. Its existence could increase the flow of water in the event of a failure of the dam or if this third pipe collapsed it could form a void in the dam face. The principal spillway for the present dam is created by the use of the newer pipes that were placed horizontally. The placement of those two pipes creates limited capacity for flow-through and their rusty condition creates limitations on the effective life of those pipes. Those pipes could not be relied upon to handle storm events. In anticipation of a storm event, the pipes are placed so high on the dam face that they could not be used to evacuate water to meet the contingency of an upcoming storm or flood event. This arrangement unlike a head gate or control device below the water surface, which would allow the evacuation of water to meet the upcoming contingency of a storm or flood event, is without utility. The placement of the present pipes at the dam site is so high that they cannot be relied upon to dewater in anticipation of such a contingency. As has been verified by observations of these pipes, horizontal pipes are prone to be clogged by debris. An appropriate spillway would have a means of protecting the spillway against clogging. The emergency spillway is inadequate in that it continues to be filled in from erosion of the hill above the emergency spillway. On the dam surface, trees, weeds and other debris make it difficult for someone to perform an inspection of the dam condition, which is a necessary activity. Those same materials can penetrate the dam surface and cause erosion or in some instances if a tree were to fall and break the surface of the dam could cause further erosion. In summary, the dam does not meet generally accepted engineering standards for design nor comply with the requirements of safety for small dams as established by the opinion of Mr. Laird. The dam poses a safety hazard to people using the dam to cross the stream and for the down stream landowners should the dam breach as it did in March 1990. Mr. Rittenour would not be opposed to having a stream crossing at the subject site to allow access to nearby properties. He is opposed to a dam at the site with its associated impoundment. Under the circumstances the appropriate means of addressing the problem of the dam would be to remove the dam and its associated impoundment of water and replace that structure with a crossing which would allow vehicular traffic. This disposition is consistent with the order for corrective action. This would involve the safe removal of water behind the present dam structure and reduce the risk of sudden release of an increased volume of water from a future breach when contrasted to the 1990 breach. In this solution the spillway pipes would be lowered to an elevation at the natural level of the stream, thus the impoundment would be ended with the new structure which would allow vehicular traffic to cross the stream. A one to two foot fill would need to be placed over the pipes to maintain the crossing as a roadway. This would lower the crest of the structure to an elevation just above the stream bed. During the course of any construction, sediment barriers would need to be placed downstream and in areas where the construction was ongoing to prevent problems with sedimentation. Grass would need to be placed on any disturbed areas and on the slopes of the new structure. Alternatively, the entire structure could be removed with proper controls being placed to protect against sedimentation and erosion in the area in question. Maintenance of the structure as a dam with its associated impoundment is not contemplated by this administrative action and would only be appropriate in the event that the dispute over the ownership of this site is resolved by informal settlement between Respondent and Mr. Rittenour or through litigation.
Recommendation Based upon consideration of the facts found and the conclusions of law reached, it is, RECOMMENDED: That a final order be entered which declares the dam and impoundment to be a public nuisance created by Respondent and informs the Respondent of the necessity to obtain a permit before removing the dam and impoundment and reestablishing the roadway at stream bed level. DONE and ENTERED this 12th day of December, 1994, in Tallahassee, Florida. CHARLES C. ADAMS Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 12th day of December, 1994. APPENDIX Petitioner's proposed facts are subordinate to the facts found in the recommended order. COPIES FURNISHED: Gary J. Anton, Esquire Stowell, Anton and Kraemer Post Office Box 11059 Tallahassee, FL 32302 H. S. Harrell 3153 Alpin Road Crestview, FL 32536 Douglas Barr, Executive Director Northwest Water Management District Route One, Box 3100 Havana, FL 32333
Findings Of Fact On July 19, 1991, the Petitioner, Cahill Pines and Palm Property Owners Association, Inc. (Cahill), filed a permit application with the Department of Environmental Resources, predecessor to the Respondent, Department of Environmental Protection (Department), for a permit to remove two earthen plugs in the Cahill canal system, located in Big Pine Key, Monroe County, Florida. The plugs were to be removed to a depth of -5.5 feet N.G.V.D. Kenneth Echternacht, a hydrologist employed by the Department, had performed a hydrographic review of the proposed project and reduced his findings to writing in a memorandum dated June 25, 1993. Mr. Echternacht recommended that the project not be permitted. On August 20, 1993, the Department issued a notice of its intent to deny Cahill's application to remove the plugs. The notice included six proposed changes to the project which would make the project permittable. Cahill requested an administrative hearing on the Department's intent to deny the permit. On March 3 and 4, 1994, an administrative hearing was held on the issue of whether a permit should be issued. The hearing officer entered a recommended order on May 9, 1994, recommending that a final order be entered denying the permit. The Department issued a final order on June 8, 1994, adopting the recommended order of the hearing officer and denying the permit. See Cahill Pines and Palm Property Owners Association v. Department of Environmental Protection, 16 F.A.L.R. 2569 (DER June 8, 1994). In the final order the Department found that the following findings of Mr. Echternacht were "scientifically sound and credible conclusions": The estimated flushing for the presently open portion of the waterway was calculated to be 14.5 days. The flushing for the open section exceeds the 4 day flushing criterion by approx- imately 3.6 times. Clearly, the open portion poses a potential problem to the maintenance of acceptable water quality. For the presently closed sections of the waterway, the calculated flushing time was found to be 38.6 days. Again, this system would pose a significant potential for contamination to adjacent open waters if opened for use. The waters behind the barrier that presently appear to pose no problem would clearly become a repository for contaminants associated with boat usage. Because of the exceptionally long flushing time, contaminants would build up over time. Below standard water quality throughout the waterway would be expected and, associated with this, below standard water would be exported into adjacent clean water on each ebbing tide. The final order also found the following facts: 13. Neither the water in the open canals nor the water in the closed canals is presently of substandard quality. * * * Petitioner's plug removal project will also spur development in the Cahill subdivision and lead to an increase in boat traffic in the Cahill canal system, as well as in the adjacent waters of Pine Channel. Such activity will result in the discharge of additional contaminants in these waterways. As Echternacht stated in his June 25, 1993, memorandum that he sent to O'Connell, '[b]ecause of the [canal system's] exceptionally long flushing time, [these] contaminants would build up over time' and result in a significant degradation of the water quality of not only the Cahill canals, but also of Pine Channel, into which Cahill canals flow. This degradation of water quality will have an adverse effect on marine productivity and the conservation of fish and wildlife that now inhabit these waterways. Consequently, in the long run, the removal of the plugs will negatively impact fishing opportunities in the area. On the other hand, the project will have a beneficial effect on navigation and recreational boating and related activities. It will have no impact on historical and archaeological resources. On April 10, 1995, Cahill submitted a permit application to the Department to remove portions of the two canal plugs. Cahill proposed to leave an island in the center of each plug. The islands would be stabilized with riprap, and mangrove seedlings would be planted in the riprap. By letter dated April 21, 1995, the Department returned the April 10 permit application to Cahill along with the $500.00 processing fee. The Department advised Cahill that the application was not substantially different from the 1991 permit application which was denied by final order. The Department further advised that Cahill could resubmit the application and application fee if it wanted the permit to be processed but the Department would deny the application on the basis of res judicata. On May 17, 1995, Cahill submitted a revised permit application along with the processing fee. A circulation culvert had been added to the project. Ken Echternacht performed a hydrographic review of the proposed project. In a memorandum dated May 25, 1995, Mr. Echternacht recommended that the permit be denied for the following reasons: The proposed 24-inch culvert connection would not be expected to be visible hydraulically. A 24-inch diameter culvert, length 181 ft would be expected to have a friction factor several orders of magnitude greater than the adjacent canals. As such, water would not be expected to pass through the connector unless there were a sizeable head to drive the flow. No studies and/or supporting documentation have been provided to support the design in terms of the documenting the amplitude and repeatability of the flow driving force. Cutting holes through embankments do not necessarily result in flushing relief. As stated in 1, above, any and all proposed design modifications to the proposed waterway must be accompanied by adequate design justifi- cation based on hydrographic modeling supported by site specific data support. The culvert design proposed does not meet the above require- ment. The proposal is nothing new. In the hearing, ideas such as the above were suggested. However, as was stated in the hearing any and all such proposals must be supported by proper engineering study. On July 7, 1995, the Department issued a Notice of Permit Denial, denying the May, 1995 permit application on the basis of res judicata, stating that the May 1995 permit was not substantially different from the 1991 permit application which had been denied and that no studies had been submitted by Cahill that would support that the use of the islands and culvert would increase the flushing rate to the four day flushing criterion established in the hearing on the 1991 permit application. At the final hearing counsel for Cahill stated for the record that the use of the islands and the culvert would not increase the flushing rate to four days.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered denying Cahill Pines and Palms Property Owners Association, Inc.'s application for a permit to remove two plugs separating the open and closed canal sections of the Cahill canal system, placing an island in the center of each plug, and adding a 24 inch culvert connection. DONE AND ENTERED this 31st day of July, 1996, in Tallahassee, Leon County, Florida. SUSAN B. KIRKLAND Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 31st day of July, 1996. APPENDIX TO RECOMMENDED ORDER, CASE NO. 95-4377 To comply with the requirements of Section 120.59(2), Florida Statutes (1995), the following rulings are made on the parties' proposed findings of fact: Petitioner's Proposed Findings of Fact. Paragraphs 1-7: Accepted in substance but not necessary to be incorporated in the recommended order. Paragraph 8: The evidence presented showed that there is a dispute of whether the waters are now of substandard quality. For the purposes of this hearing, it is not necessary to determine whether the water quality is presently substandard. Based on the assumption that the water quality is not substandard, Petitioner has failed to show that the change in the design of the project is sufficient to warrant the rejection of the applicability of the doctrine of res judicata. Petitioner has failed to show that the addition of islands and a culvert will eliminate the potential for future contamination of the waters. The second sentence is accepted in substance but not necessary to be incorporated in the recommended order. Paragraphs 9-11: Accepted in substance but not necessary to be incorporated in the recommended order. Paragraphs 12-15: Accepted in substance to the extent that for the purposes of this hearing the water quality is assumed not to be substandard. Paragraph 16: Rejected as unnecessary. Paragraphs 17-27: Rejected as subordinate to the finding that for the purposes of this hearing the present water quality is assumed not to be substandard. Paragraphs 28-30: Accepted in substance. Paragraph 31: Accepted in substance to the extent that the changes in the design will not increase the flushing rate to four days. Paragraphs 32-33: Accepted to the extent that they were findings in the final order on the 1991 application. Paragraphs 34-35: Accepted to the extent that the slow flushing rate is one of the criteria to be considered. The increase of development and boat traffic are also contributors to the potential of contamination building up. Petitioner has not demonstrated that the use of islands and a culvert will eliminate the potential for contamination. Respondent's Proposed Findings of Fact. Paragraphs 1-10: Accepted in substance. Paragraphs 11-14: Rejected as unnecessary. Paragraph 15: Accepted in substance. Paragraph 16: Accepted in substance as corrected. Paragraph 17: Accepted. Paragraphs 18-21: Accepted in substance. Paragraph 22: Accepted. Paragraph 23: Rejected as unnecessary. COPIES FURNISHED: David Paul Horan, Esquire Horan, Horan and Esquinaldo 608 Whitehead Street Key West, Florida 33040-6549 Christine C. Stretesky, Esquire John L. Chaves, Esquire Department of Environmental Protection 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 Kenneth J. Plante, General Counsel Department of Environmental Protection 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 Virginia B. Wetherell, Secretary Department of Environmental Protection 3900 Commonwealth Boulevard, Douglas Building Tallahassee, Florida 32399-3000
The Issue The 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 At all times pertinent to the issues herein, the Department was the state agency responsible for the regulation and issuance of dredge and fill permits for waters of the state. Hunt is a real property development company which owns the property in issue located contiguous to Sarasota Bay on the east and an artificial canal, dredged many years ago, located to the south. The property in issue includes submerged lands. Petitioners, Manasota and Manatee are environmental interest associations whose standing as parties hereto was stipulated to by Hunt and the Department. The Rosens are owners of a piece of land at the bayward end of the property located to the south of the artificial canal to the south of the property in issue. On September 2, 1988, Hunt applied to the Department for a dredge and fill permit to construct a dock system four feet wide and approximately one thousand feet in length along the northern edge of the artificial canal. Four access walkways would extend from the existing berm to the north out to the proposed dock. The request also sought permission to trim mangroves to facilitate construction of and provide access to the dock; to place 22 cubic yards of fill to stabilize an existing private road; and to relocate the existing access channel by dredging approximately 700 cubic yards of material. Petitioners do not object to the placement of the 22 cubic yards of fill. During the review process, the Department identified several deficiencies in the proposal which it required be modified before a permit could be issued. Hunt agreed to comply with all of the Department's modifying requirements. As a result, in its amended form the proposal calls for the dock to be reduced in size from 5,080 square feet to approximately 3,800 square feet; access points to be reduced from four to three; the installation of a flushing system consisting of a 30 inch culvert between the west end of the canal and the mangrove swamp to the north to enhance the water quality in the artificial canal; the submittal of historical information to demonstrate the existence of a historic canal which would support maintenance dredging; and the submittal of a mitigation proposal for the seagrasses which would be destroyed by the dredging of a new channel and for the mangroves to be trimmed to facilitate the dock construction. The revised application also sought permission to construct a previously approved (different permit) boardwalk, the mitigation for which has been completed and is apparently successful. This mitigation is located in the northern boundary of the Hunt property. The wetlands area adjacent to Hunt's north property line is a Class II, Outstanding Florida Water, (OFW). The property in issue is located contiguous to Sarasota Bay, a Class II water body designated as an OFW). This portion of the bay is not approved for shellfish harvesting. Sometime between 1951 and 1957, a channel was dredged from the Intracoastal Waterway running generally north and south in the bay, west across approximately 400 feet of bay bottom into what was then a mangrove forest on the east side of Longboat Key. The westernmost 1400 foot extension of that channel into the forest is the artificial canal in issue which receives untreated storm water runoff from Jungle Queen Way, the roadway to the south of the canal. The canal is a Class III water and is not an OFW. Approximately 1,225 feet of the southern shoreline of that canal is seawalled, with approximately 35% of the southern shoreline having mature mangrove trees along it. The entire northern shoreline is vegetated by mature mangrove trees. There is no seawall on the northern shore. The canal varies in depth from less than one foot at points to a maximum of 7 1/2 feet at other points. As a result of shoaling at the canal juncture with the bay, a sand spit has formed, and at low tide, water depth is minimal but allows the passage of shallow draft vessels if their motors are raised. The original channel has silted in to a great degree and has become vegetated by approximately 1,350 square feet of various shoal grasses. It is home to several species of water animal including crown conch, lightning whelk, venus sunray clams, jingle shell, banded tulip snail and common nassa snail as well as supporting a diverse and abundant group of bottom dwelling organisms. The grass beds are fish habitats as well as nursery and feeding grounds and fish species present include some important to commercial and sport fishing. Though the remains of the original channel are often indistinct and difficult to define, the Department, in its analysis of the application for permit, determined from a review of the documentary evidence presented , and it is also found here, that a historic channel exists as described, and is navigable at least fifty percent of the time. As such, the Department concluded that that channel qualified for the maintenance dredge exemption. The Department also concluded that a minimum amount of dredging would be required to clear the historic channel sufficiently to allow boats to utilize it during a full range of tidal conditions. The seagrass beds currently existing in the historic channel would be substantially damaged by a maintenance dredging in the area. Though the Department has no authority to require mitigation for this impact should Hunt exercised its right to maintenance dredge, as an alternative, Hunt proposed to dredge a hook shaped channel curving to the north around that portion of the historic channel which penetrates the grass beds. This alternative site is also located in Class II waters and an Outstanding Florida Water. Dredging at the alternative site would displace much the same amount of material, (approximately 700 cubic yards), and the resultant channel would be approximately the same length, width, and depth overall. The alternative site will cross an area which contains a shoal grass, Cuban Shoalweed, but utilization of this site will have a substantially lesser impact to the overall seagrass population than would dredging of the historic channel. If Hunt chooses to utilize the alternative route, it would have to comply with the Department's mitigation requirements which include transplanting the displaced grass from the alternative channel to another location. The conditions for the mitigation were developed by Department personnel in conjunction with the Department of Natural Resources whose personnel have agreed to participate in the transplantation. Hunt has agreed to undertake additional mitigation planting regardless of whether the transplant is successful. The Department has determined that Hunt's total mitigation program is sufficient to offset the adverse impacts of the proposed dredging. Any sea grasses in the area of the channel will be protected by the installation of signs indicating their location. Speed will be limited by the installation of "No Wake" zone signs, and, in addition, the natural dog-leg in the channel should minimize the impact to adjacent shorelines and reduce the potential for shoaling or erosion. The Department gathered water quality data for the area from 1988. This is consistent with the current statutory and rule criteria which permits the use of data existing in the year prior to application. To supplement this, however, the Department also required that Hunt submit water quality data for the actual project site as a part of the application process. From this input, existing ambient water quality standards were established. To insure that these existing ambient water quality standards within the OFW are maintained during construction, the Department has established a mixing zone and has indicated a requirement for the use of double turbidity curtains. Additional safeguards include limiting dredging to periods of low tide. The Department has concluded that these prosthetic activities will most likely result in maintenance of the water quality standards required for Class II and OFW. Any diminishment of those standards would be of limited duration. The Department was also satisfied that the project would not adversely impact in this area after construction was completed and the facility in operation. In support of this position, the Department relied on evidence tending to show that the design of a culvert proposed for incorporation into the project should significantly improve flushing of the water within the canal. Pollutant loading to the system should be reduced as a result of the biological filtration of the mangrove community which will absorb many of the excess nutrients currently in the canal water, and the removal of suspended solids. Expert evidence on the subject indicates that flushing time, currently estimated at 9 days, will be reduced to less than 4 days. Polluting activities, such as fueling facilities, live-aboards, and major repair and maintenance of boats in the canal will be prohibited. Any pollutants not removed by the natural filtration process described above will, therefore, remain in the canal water for less time than before. If vessels are docked in the canal, the minimal amount of resulting oil and grease pollution should not be sufficient to degrade water quality in either the canal or the bay to a point below acceptable established standards. In fact, such impact should be both non-detectable and non-measurable.. Hunt's plan calls for the removal of approximately 20 of the approximately 2,400 mangrove trees and the trimming of approximately 230 additional ones. Though this trimming, as a part of an exempt activity, is also exempt, and as a result, mitigation in not required, Hunt indicates its intention to plant 3 trees for every tree removed or trimmed, and this proposal, considered acceptable to the Department, has been incorporated as one of the permit conditions. The new mangrove area to be planted in mitigation should be fully established within 3 years of planting and will provide the same beneficial function as the replaced trees. Hunt's mitigation planting for the previously mentioned boardwalk project has been successful. To protect the manatee population as much as possible, the Department has also included conditions to the permit requiring the posting of manatee awareness signs along the canal and channel and the installation of a permanent informational display at the facility. These measures, though no guarantee of compliance by individual boaters, are currently the most effective safeguards short of prohibition of boat activity. The Department has concluded, and it is so found, that, considering the proposed project against the statutory criteria relating to dredge and fill permitting of this nature, the project, as conditioned, is in the public interest and would have no cumulative impact on the environment in the area. When the 36 special conditions attached to the permit by the Department are complied with, the effect on fish and wildlife resources in the area should be beneficial. As a result of the mitigation activities, both mangrove and seagrass populations should be increased and the shoreline enhanced. Water quality in the canal should be significantly improved above existing conditions, and the abandonment of the historic maintenance dredging operation, with its associated impacts, is clearly in the public interest. The incorporation of a permit condition precluding any subsequent maintenance dredging in the historic channel upon completion of the relocation is a safeguard clearly in the public interest. The evidence also indicates, supporting Departmental findings to that effect, that the project will not adversely affect the public health, safety, welfare or property of others; nor will it adversely affect the conservation of fish and wildlife, endangered, threatened or other. It will not adversely affect navigation or flow of water or cause harmful erosion or shoaling. It will not adversely affect fishing or recreational values or marine productivity in the area; nor will it endanger significant historical or archaeological resources which exist currently in the area.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED that a Final Order be entered in this case granting a Dredge and Fill permit to Hunt Building Corporation consistent with the terms and conditions outlined in the Department's Intent to Issue, dated March 29, 1990, under file NO. 41-1542543. RECOMMENDED this 3rd day of January, 1991, in Tallahassee, Florida. ARNOLD H. POLLOCK, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 3rd day of January, 1991. APPENDIX TO RECOMMENDED ORDER IN CASES NO. 90-2350 & 90-2736 The following constitutes my specific rulings pursuant to S 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties to this case. FOR PETITIONERS, MANASOTA AND MANATEE: 1. Accepted. 2(a) - (e). Accepted and incorporated herein. Accepted and incorporated herein. Accepted. & 6. Accepted and incorporated herein. Accepted. - 12. Accepted and incorporated herein. Rejected as contrary to the evidence. Accepted. - 17. Accepted and incorporated herein. Accepted. - 22. Not appropriate Findings of Fact. Should be in Conclusions of Law. 23. - 26. Rejected. 27. - 30. Accepted and incorporated herein. 31. - 33. Accepted. Accepted except for last clause. Not a Finding of Fact but a comment on the state of the evidence. Rejected. Not proven. Not a proper Finding of Fact and not supported by authority. Accepted and incorporated herein except that the canal is a Class III water body. Accepted and incorporated herein. Not a Finding of Fact but a Conclusion of Law. Rejected. Accepted. Accepted but not determinative of any issue of fact or law. Ultimate Fact. Rejected. FOR RESPONDENT HUNT Accepted and incorporated herein. & 3. Accepted and incorporated herein. 4. & 5. Accepted and incorporated herein. 6. & 7. Accepted and incorporated herein. 8. - 10. Accepted and incorporated herein. 11. & 12. Accepted and incorporated herein. 13. Repetitive information. 14-1 & 2. Accepted and incorporated herein. Accepted. Accepted and incorporated herein. Accepted and incorporated herein. Accepted and incorporated herein. Accepted and incorporated herein. Accepted and incorporated herein. & 22. Accepted and incorporated herein. Accepted and incorporated herein. - 28. Accepted and incorporated herein. FOR RESPONDENT DEPARTMENT: 1. - 5. Accepted and incorporated herein. 6. - 8. Accepted and incorporated herein. Accepted. Accepted and incorporated herein. Accepted and incorporated herein. Accepted and incorporated herein. Accepted and incorporated herein. Accepted. - 18. Accepted and incorporated herein. Accepted and incorporated herein. Accepted and incorporated herein. & 22. Accepted and incorporated herein. 23. & 24. Accepted. Accepted and incorporated herein. - 31. Accepted and incorporated herein. 32. Accepted and incorporated herein. COPIES FURNISHED: Martin Rosen 672 Jungle Queen Way Longboat Key, Florida 34228 Thomas W. Reese, Esquire 123 Eighth Street North St. Petersburg, Florida 33701 Patricia Petruff, Esquire John V. Quinlan, Esquire Dye & Scott, P.A. P.O. Box 9480 Bradenton, Florida 33506 Cecile I. Ross, Esquire Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32399-2400 Dale H. Twachtmann Secretary Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32399-2400 Daniel H. Thompson General Counsel DER 2600 Blair Stone Road Tallahassee, Florida 32399-2400
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings of fact are made:
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Trustees of the Internal Improvement Trust Fund enter a final order granting Petitioners to maintenance dredge a navigation channel over sovereign submerged lands as more fully described in Petitioners' Exhibit 8 (DER Permit/Certification No. 081510235). DONE and RECOMMENDED this 8th day of October, 1992, at Tallahassee, Florida. WILLIAM R. CAVE, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings this 8th day of October, 1992. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 92-0534 The following constitutes my specific rulings, pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties in this case. Rulings on Proposed Findings of Fact Submitted by the Petitioner Proposed Findings of Fact 1 through 72 are adopted in substance as modified in Findings of Fact 1 through 72. Rulings on Proposed Findings of Fact Submitted by the Respondent Proposed Findings of Fact 1, 2, 3, and 4 are adopted in substance as modified in Findings of Fact 10, 1, 19, and 20, respectively. Proposed Findings of Fact 5, 6, 7, 10, and 12 are rejected as not being supported by competent substantial evidence in the record. Proposed Findings of Fact 8 and 9 are adopted in substance as modified in Finding of Fact 36. Proposed Findings of Fact 11, 13, 14, 15, 16, 17, and 19 are adopted in substance as modified in Findings of Fact 21, 25, 9, 9, 4, 4, and 11, respectively. Proposed Finding of Fact 8 is not relevant, but see Finding of Fact 42. Proposed Finding of Fact 20 is not relevant since the SWIM Plan has not been adopted. COPIES FURNISHED: Joseph W. Landers, Jr., Esquire John T. LaVia, III, Esquire Post Office Box 271 Tallahassee, Florida 32302 M. B. Adelson, IV, Esquire Edwin Steinmeyer, Esquire Department of Natural Resources Douglas Building 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 Kenneth Plante General Counsel Board of Trustees of the Internal Improvement Trust Fund 3900 Commonwealth Boulevard Mail Station #10 Tallahassee, Florida 32399-3000
