Findings Of Fact The Petitioner, James M. Brown, d/b/a Ramrod Development Company, is seeking to develop as residential property, the subject land on Ramrod Key, Monroe County, Florida, adjacent to the Torch Ramrod Channel. The specific filling project which is the subject of this hearing involves Mariposa Road and Angelfish Road which lie within the property described above on Ramrod Key and which appear on a subdivision plat filed in the official records of Monroe County in 1960 and on revisions of that plat, one of which was filed in 1963 and the more recent of which was filed in 1969. Since February 9, 1960, Monroe County has been the owner of that roadway known as Mariposa Road located on Ramrod Key and which is depicted on the subject plat of Ramrod Shores, Marina Section. Since the county became the owner of that roadway in 1960, through the date of the hearing, it has never given authorization or approval for any person, firm or corporation to place fill material or any other matter upon that dedicated roadway (which includes a section of Angelfish Road as well as Mariposa Road). Monroe County, Florida, has given the Department of Environmental Regulation authorization to require removal of fill material placed on any dedicated county roadway in violation of any law or administrative rule of the Department. On January 27, 1977, the Department personnel visited the subject site and determined dredge and fill activities had indeed taken place on a tidal Red Mangrove fringe area on the shore line of Torch Ramrod Channel without an appropriate permit issued by the Department. The Petitioner, James M. Brown, in sworn testimony, in the earlier proceeding here involved (DOAH Case No. 78- 1234), admitted that since 1969 he has, on numerous occasions, placed fill material in the Mariposa and Angelfish Road areas, which are the subject matter of this proceeding. He also admitted doing so without a permit issued by the Department of Environmental Regulation (See testimony of Brown in DOAH Case No. 77-1409, Atwater vs. Department of Environmental Regulation). In the earlier proceeding involving the Petitioner, DOAH Case No. 78- 1234, Mr. Sayward Wing described the placing of fill on the northern end of Mariposa Road by Monroe County, but this area is not the area now in controversy, which is on the southern part of Mariposa Road from its intersection with Angelfish Road south to Old State Road 4A. Witness Wing in that proceeding did not observe the county or its agents or employees place any fill in the subject area of Mariposa or Angelfish Road. The fill placed on Mariposa Road, between Old State Road 4A and the intersection with Angelfish Road, by the Petitioner, contained approximately 96 cubic yards of fill as of January 27, 1977. The fill placed on Angelfish Road from the Mariposa Road intersection westerly approximately 50 feet, contained approximately 178 cubic yards of fill as of that same date. The area west of Mariposa Road where the dredge and fill work was performed is predominantly vegetated by red mangroves (rhizophora mangle). The red mangroves are then superseded by white mangroves (laguncularia racemosa), black mangroves (avicennia germinans), as well as transitional vegetation. The red mangroves are the dominant vegetative species in the area. These species are found in the vegetative index which defines the Department's jurisdiction in Section 17-4.02, Florida Administrative Code. Witnesses Meyer and Kurer observed large numbers of small fish, predominantly gambusia affinis, in the inundated mangrove area lying on the west side of Mariposa Road. A fringe of red mangroves 50 to 80 feet wide vegetates the area east of Mariposa Road, along the Torch Ramrod Channel shoreline. The sandy mud intertidal and shallow subtidal water bottoms in this area are vegetated by benthic algae and sea grasses. The red mangroves are also the dominant species in this area. Benthic algae (halimeda sp., penicillus sp., gracellaria sp.) and sea grasses (thallassia testudinum and halodule wrightii) are also found in the vegetative index contained in Section 17-4.02, Florida Administrative Code, which delineates the Department's jurisdiction over State waters. The sampling and observations conducted by witnesses Kurer and Meyer in this area yielded silver side anchovies, mosquito fish, killifish, lane snapper, toadfish, needlefish, blennies, barracuda, various juvenile fish species, stonecrabs, amphipods, blue crabs, pink shrimp, isopods, nemerteans, polychaetes, tunicates, gastropods, and bivalves. The mangroves described, as well as associated wetland vegetation found in the area, provide filtration of sediments and nutrients contained in stormwater run-off from adjacent upland areas, as well as from tidal flows. This filtering process is essential in maintaining water quality in the adjacent open bay estuarine or marine system. The nutrients in the tidal waters as well as run-off waters are stockpiled in the sediments retained by the mangrove roots and are transformed into vegetative leaf matter by the mangroves as they live and grow. The extensive root system of the mangroves and their associated vegetation also provides stabilization of estuarine shoreline sediments and attenuation of storm-generated tides. Mangrove wetlands provide unique and irreplaceable habitats for a wide variety of marine as well as upland wildlife species. The Petitioner's activities, conducted without the appropriate approval and permit, have resulted in the alteration of the chemical, physical and biological integrity of State waters in the area of Mariposa and Angelfish Roads by the destruction of wetlands which provide food and habitat for wildlife, and which provide a filtrative and assimilative capacity to remove nutrients and other pollutants from the adjacent bay waters. the discharge of fill on to the mangrove areas, in waters of the State, has resulted in harm and injury to the biological community that existed there before the activity was completed. Specifically, as the testimony of Mr. Helbling (a biologist and water quality expert) establishes, the mangrove community to the east of Mariposa Road was shown not to be in a stressed condition in 1977 or at the time of the hearing. Mr. Helbling's testimony also establishes, however, that the mangrove system to the west of Mariposa Road, in effect inland from the filled portion of the road, is now in a stressed condition as manifested by mangrove trees in this area which area dead, or in the process of dying. This stress is caused primarily by the fact that the waters in the mangrove system to the west of Mariposa Road are impounded by the fill and no longer experience tidal flow or exchange daily. Therefore, being impounded, they are becoming more and more saline through the process of evaporation, to the extent that the mangrove trees are being poisoned. The mangrove tree community was not in this stressed condition in 1977 when this witness first observed it, but is at the present time. The primary reason for the imminent loss of this mangrove community is thus due to Mariposa Road being filled to such a level that there is no longer any tidal exchange of water with Torch Ramrod Channel. Witness Kurer established that the proposed plan of restoration set forth in the Department's exhibit two in Case No. 78-1234 and which has been adopted and admitted into evidence herein, would constitute an acceptable resolution of the dispute at bar. Removal of the fill would allow tidal exchange across Mariposa and Angelfish Roads and allow the mangrove system to restore itself and contribute to the protection and enhancement of the productive and valuable marine resource system in the adjacent bay area. Thus, the discharge of fill on to the mangrove areas involved herein which is within waters of the State, has resulted in harm and injury to that biological community which existed there before the activity was commenced and completed. The quality of waters in the Florida Keys is directly related to the degree of shoreline development by activity such as that undertaken by the Petitioner. The greater the degree of shoreline alteration, then the greater the degree of deterioration in water quality and the greater damage to biological productivity. The mangroves, in addition to their valuable filtrative function, also contribute leaf or detrital matter to the surrounding State waters and estuarine system in the form of decayed leaf litter. This organic component forms the basis of the marine food chain and is used directly for food by a variety of marine organisms, including small fish. A variety of important commercial and sports fish species feed directly on the mangrove detritus or on those fish or other forms of marine life which themselves feed on the detrital matter. Consequently, the destruction of the mangroves contributes directly to the deterioration of water quality through the loss of their filtrative function, as well as to the deterioration of an economically and biologically important sports and commercial fishery. Consequently, the restoration plan proposed by the Department is more of a desirable alternative than leaving the fill in place, in that it would restore the mangrove vegetation which provides the filtrative, assimilative functions in removing nutrients and other pollutants, and also provides food and habitat for fish and wildlife. The Petitioner's activities continue to be a source of pollution which was created without an appropriate and valid permit issued by the Department.
Recommendation In consideration of the foregoing Findings of Fact and Conclusions of Law, the candor and demeanor of the witnesses and pleadings and arguments of counsel, it is RECOMMENDED: That the Department of Environmental Regulation enter a Final Order denying the application for an "after the fact" permit. That a Final Order be entered requiring the Petitioner to completely restore the unauthorized fill site to its original contours and elevations and to revegetate the affected area, pursuant to a restoration plan and compliance schedule approved by the Department, which restoration plan and compliance schedule should be supplied to the Department by the Petitioner within 20 days subsequent to the effective date of the Final Order herein; and that the Petitioner be required within 20 days following approval of the said restoration plan to commence the restoration work which shall be accomplished in such a fashion as to prevent further damage to the marine and estuarine environment involved. It is further required that Petitioner complete the said restoration plan and project within 60 days following the approval of the restoration plan by the Department. DONE AND ENTERED this 21st day of September, 1981, in Tallahassee, Leon County, Florida. P. MICHAEL RUFF Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 904/488-9675 Filed with the Clerk of the Division of Administrative Hearings this 21st day of September, 1981. COPIES FURNISHED: David Paul Horan, Esquire 513 Whitehead Street Key West, Florida 33040 H. Ray Allen, Esquire Assistant General Counsel Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32301
The Issue The primary issue in this case is whether the St. Johns River Water Management District (District, or SJRWMD) should issue consumptive use permit (CUP) 95581 to Seminole County (Seminole) authorizing the withdrawal and use of 2,007.5 million gallons a year (mgy) or 5.5 million gallons a day (mgd) of surface water from the St. Johns River for public supply and reclaimed water supply augmentation.
Findings Of Fact Parties Seminole County (Seminole) is north of Orlando, Florida, and contiguous with the St. Johns River. It is located entirely within the District, and the Central Florida Coordination Area (“CFCA”). Seminole owns and operates water, wastewater, and reclaimed water utilities. These include a wastewater treatment facility at Yankee Lake near the St. Johns River just downstream from Lake Monroe, where Seminole proposes to construct surface water withdrawal and related facilities. The District is the regulatory agency charged with issuing permits for the consumptive use of water within a sixteen county area located in East-Central Florida. The City of Jacksonville (Jacksonville) is a Florida municipality located about 140 miles downstream of the proposed Yankee Lake facility. Jacksonville’s standing is based on the filing of a verified pleading pursuant to Section 403.412(5), Florida Statutes.2 St. Johns County (St. Johns) is a Florida political subdivision located approximately 100 miles downstream of the proposed Yankee Lake facility. St. Johns County’s standing also is based on the filing of a verified pleading pursuant to Section 403.412(5), Florida Statutes. St. Johns Riverkeeper, Inc. (Riverkeeper), is a Florida not-for-profit corporation. It alleges Seminole’s proposed withdrawal of water will adversely affect the use and enjoyment of the St. Johns River by a substantial number of its members. At the end of its evidentiary presentation at the final hearing, Riverkeeper requested leave to amend its petition to also allege standing under Section 403.412(6), Florida Statutes. Seminole's Water Utility Systems Seminole serves customers in its Northwest, Northeast, Southwest, and Southeast Potable Water Service Areas, and holds separate groundwater CUPs for each service area. The existing CUPs authorize a total allocation of 21.7 mgd. Seminole has four main wastewater water service areas roughly contiguous with its water service areas. Seminole treats wastewater from the Southeast Service Area at the Iron Bridge Regional Water Reclamation Facility,3 and treats wastewater from the Northwest and Northeast Service Areas at its Yankee Lake Wastewater Treatment Plant (WWTP) and Greenwood Lakes WWTP. Seminole has two reclaimed water service areas, the Northwest-Northeast Service Area, which utilizes treated wastewater supplied by the Yankee Lake and Greenwood Lakes WWTPs, and the Southeast Service Area, which utilizes treated wastewater from the Iron Bridge WWTP. Seminole plans to expand reclaimed water use in the Northwest-Northeast Service Area by installing an $80 million, 5-phase residential reclaimed retrofit program. Seminole has developed an Integrated Water Supply Plan (Seminole's Plan) to address existing and future potable and reclaimed water needs in compliance with the CFCA rules, which limit groundwater withdrawals to the quantity required to meet each user’s 2013 demand and encourage development of AWS sources to meet excess demands.4 Seminole's Plan includes traditional and AWS sources and a conservation program that has been approved by the District. Seminole's traditional water source is groundwater, and Seminole has a pending application to consolidate its existing groundwater CUPs (Consolidated Groundwater CUP). With current allocations of 21.7 mgd expired or soon to expire, the Consolidated Groundwater CUP requests an allocation of 25.6 mgd to meet 2013 demands. The current plan is for surface water withdrawals from St. Johns River at Yankee Lake be Seminole's non-traditional water source. Yankee Lake Project CUP On February 12, 2008, the District issued its Technical Staff Report (“TSR”) for CUP 95581. The TSR recommended a 20-year CUP with a surface water allocation of 0.70 mgd starting in 2009, increasing to 5.5 mgd in 2025-2028. Between 2009 and 2013, the surface water allocation identified in the TSR would be used for reclaimed water augmentation. Starting in 2014, the TSR recommends an allocation of 5.35 mgd, which coincides with the completion of Seminole’s surface water treatment facility and the use of surface water as a potable water source. Condition 6 of the TSR limits the maximum daily withdrawal to 11.59 mgd. The intake structure for the Yankee Lake surface water facility will be located on a manmade canal connected to the St. Johns River, in or just outside the Wekiva River Aquatic Preserve and in Seminole's Yankee Lake Black Bear Wilderness Area. The capacity of the intake structure is 10 mgd, and it has been sized for expansion to 50 mgd to meet potential future demands over the useful life of the facility. The intake structure is designed with an intake velocity much less than 0.5 feet per second, which is the industry standard. The intake structure includes a sheet pile wall, an 8-inch bar screen manatee barrier at the mouth of the canal, a second screen which removes aquatic debris and serves as a second barrier to aquatic life, and a 4-millimeter intake pump screen. Raw water pipelines from the intake structure will run through previously disturbed wetlands within the Wekiva River Aquatic Preserve and the Seminole Black Bear Wilderness Area to new treatment facilities, all of which will be located on land owned by Seminole. The pipelines consist of two 42-inch lines with a total capacity of 50 mgd, which is intended to meet possible future demands during the 50-year useful life of the facilities. It is common to design utility infrastructure to accept larger quantities of water than immediately needed to accommodate possible future expansion. Seminole Water Demand and Need The reasonableness of Seminole's proposed CUP depends in large part on potable water and reclaimed water demand. Potable Water In 2005, Seminole provided water service to a residential population of 101,585. For the most recent five- year period, from 2003-2007, Seminole’s average residential per capita potable water use rate was 153.7 gallons per capita per day (gpcd). The historic per capita use rates in Seminole’s four service areas are below 150 gpcd, with the exception of the Northwest Service Area. The served population in the Northwest Service Area increased from 12,655 in 2001 to 20,745 in 2005, and per capita usage declined from 285 gpcd in 2001 to 213.5 gpcd in 2005. The higher per capita rate in the Northwest Service area is attributable to larger residential lots and lawns and more irrigation than in the other service areas. Additionally, the residents are more affluent and are not as responsive to Seminole’s water conservation rate structure. Seminole is implementing an $80 million reclaimed water retrofit program in order to reduce per capita potable water use in the Northwest Service Area. In order to project future water demands for the life of the proposed CUP, Seminole’s consultant, Dr. Terrence McCue, used the population projections published by the University of Florida Bureau of Economic and Business Research (“BEBR”).5 He used the BEBR 2008 medium population projections, which were the most recent projections available at the time of hearing. Since BEBR data are published on a county-wide basis, Dr. McCue disaggregated the data to Seminole’s service areas by using traffic analysis zones and water utility billing data. This is a recognized methodology used to calculate service area population for the purpose of determining water demand. Using this methodology, Dr. McCue estimated Seminole’s service area population to be 110,860 in 2008 and projected that it would increase to 126,531 in 2013 and to 161,971 in 2027. The District asked its consultant, Richard Doty, to perform an independent water demand projection as a check on Dr. McCue’s work product. Mr. Doty also relied on BEBR projections, but disaggregated the county-wide population projections differently, using a sophisticated GIS model to calculate build-out densities. Mr. Doty estimated Seminole’s service area population to be 109,202 in 2007 and projected that it would increase to 126,075 in 2013 and to 155,368 in 2027. Although Mr. Doty’s population projections were somewhat lower than Dr. McCue's, they were close enough to essentially corroborate the validity of Dr. McCue's projections. Mr. Doty testified that, while he prefers his projection, Dr. McCue’s population projections are plausible. Jacksonville's expert witness, Nolton Johnson, who did not himself project service area population, could not say that Mr. Doty’s population projections are superior because Dr. McCue used actual water billing data that was more specific to Seminole’s service area. For these reasons, it is reasonable to base projected water demand on either Dr. McCue's or Mr. Doty's population projections. To project service area demand, projected population is multiplied by a use rate. Here, Mr. Doty used the simple method specified in A.H. Section 12.2.2. He basically averaged the historical gross per capita daily (gpcd) water use in each service area for the most recent five-year period (2003-2007). Using the average use rate for those years, he calculated a total potable water demand (for all sources and all kinds of uses) of 24.87 mgd for 2013, 30.67 mgd for 2027, and 30.76 mgd for 2028. In contrast, Dr. McCue averaged the historical per capita residential use rate for 2001 through 2005, instead of 2003 through 2007. Then, he made several adjustments not used by Mr. Doty and not included in A.H. Section 12.2.2. Some of these adjustments had the effect of increasing demand while others decreased demand. First, Dr. McCue's demand estimates included an 8% "unaccounted-for flow factor." There was evidence that this is an accepted industry standard and consistent with other utilities in Central Florida. However, it seems high for Seminole, which may actually over-account for flow. (Seminole is currently attempting to ascertain the accuracy of its flow meters.) Mr. Doty did not incorporate an "unaccounted-for flow factor" in his demand projections because any discrepancy, whether Seminole's flow meters are over-accounting or under- accounting for actual flow, should already be incorporated into the historical use rate Mr. Doty calculated. Second, Dr. McCue multiplied the historical average by a 6% "drought correction factor." Dr. McCue's rationale for the drought correction factor was that it accounted for the increased demand that would occur during drought years (although the historical average already accounted for use rate changes due to the fluctuations in rainfall that occurred during 2001- 2005). Dr. McCue also made adjustments to the historical use rate to reduce projected potable water demand as a result of Seminole's Water Conservation Plan, which meets all District requirements and CUP permitting criteria and has been approved by the District. Seminole's Water Conservation Plan includes Seminole’s ongoing residential irrigation audit program, which from 2007 through 2013 is projected to conserve 0.082 mgd per year, with a total savings of 0.622 mgd. Seminole has had a water conservation rate structure in place since 1985, which discourages high water use by increasing customer billing rates as usage increases. Seminole also has implemented a block billing structure for its reclaimed water customers to conserve that water. Seminole's Water Conservation Plan also includes an augmentation minimization plan, conservation gardens, and a public education program. The total cost of implementing Seminole’s conservation plan will exceed $125 million. The plan is focused on the Northwest Service Area, where per capita water use has declined 25% from 2001 to 2007. If Seminole's objectives are achieved, projected water use within the Northwest Service Area will decline an additional 25%, for a 50% reduction in potable water use within the Northwest Service Area from 2001-2028. Dr. McCue applied a 9% reduction in potable water demand due to implementation of the reclaimed water retrofit program and a 4% reduction to account for other planned conservation measures. Based on Dr. McCue’s projections, Seminole’s residential per capita use rate will fall below 150 gpcd in 2012, and will continue to decline to 134.5 gpcd in 2027 as a result of the proposed conservation, with corresponding reductions in potable water demand. Petitioners contend that Dr. McCue's conservation adjustments were "negotiated" between Seminole and the District, and are too low. The "negotiation" process itself does not negate the reasonableness of the resulting agreed conservation adjustments since it is impossible to predict the results of Seminole's Water Conservation Plan with certainty. The conservation adjustments used by Dr. McCue were reasonable. Riverkeeper expert witness, Dr. John Woolschlager, testified that Seminole could achieve greater reductions (15%) in water use through conservation. He based his opinion on reductions achieved by other utilities, including the City of Tampa and Miami-Dade County. Dr. Woolschlager relied on an EPA report on the City of Tampa, which indicated that Tampa experienced a 26% decline in per capita use from 1989 to 2001. However, he was not aware of how lot sizes, land use patterns, persons per household, or other demographic information for Tampa compare to Seminole, and he did not have enough data to say that Seminole could achieve similar savings from 2008 to 2028. Dr. Woolschlager also did not know whether Seminole had already implemented any of the conservation measures utilized by Tampa from 1989 to 2001. Dr. Woolschlager also relied on a study involving Miami-Dade County. However, he admitted that Miami-Dade County is not similar to Seminole demographically. Dr. Woolschlager also was not aware of Miami-Dade’s total water use during the study period, but was only aware that Miami-Dade had reduced its water consumption by 19.8 mgd. Without knowing Miami-Dade’s total use, it was impossible to calculate the percentage savings that was achieved by Miami-Dade in order to compare it to Seminole. Jacksonville expert witness, Nolton Johnson, opined that greater conservation savings could be achieved through the mandatory implementation of the Florida Water Star Program, a voluntary certification process for builders. While promoted by the District, the Florida Water Star Program is not part of the District’s conservation requirements. It is not appropriate to include a CUP requirement that Seminole make the program mandatory. It is not reasonable from an engineering perspective, or appropriate, to assume savings from 100% compliance with the Florida Water Star Program by new development in Seminole, as Mr. Johnson did for his opinion. In addition, Mr. Johnson based his assumptions regarding the amount of water savings achievable through mandatory implementation of the Florida Water Star Program on a District brochure. However, the brochure assumed an extremely high starting per capita water rate prior to implementation of the program--much higher than Seminole’s existing per capita water use rate, even in the Northwest Service Area. For that reason, Mr. Johnson's assumptions were not applicable to Seminole. In part as a result of his conservation adjustments, Dr. McCue assumed that Seminole would be allocated only 23.71 mgd of groundwater from 2013 on, instead of the 25.6 mgd of groundwater requested in the pending Consolidated Groundwater CUP. While on the one hand criticizing Dr. McCue's assumed conservation savings for being too low, Riverkeeper in particular also criticized Dr. McCue for applying any conservation adjustments to reduce the assumed groundwater allocation in the pending Consolidated Groundwater CUP. Riverkeeper argued essentially: that Seminole was entitled to the groundwater necessary to supply its 2013 projected demand, without any conservation reduction, as requested in the pending Consolidated Groundwater CUP; that Seminole essentially is being unfair to itself by not asserting in this case its entitlement to the full 25.6 mgd of groundwater requested for 2013 in the pending Consolidated Groundwater CUP (which would have the effect of reducing or eliminating its need for any water from the river); and that allowing Seminole to decline to take the maximum groundwater would somehow discourage other applicants from implementing conservation programs. These criticisms are rejected. First, there is no guarantee that the Consolidated Groundwater CUP will authorize the full requested amount, as the District has expressed concern about potential environmental impacts to wetlands and lake MFLs. Second, there is no guarantee that the District will approve the Consolidated Groundwater CUP in time to meet Seminole’s needs. At the time of the final hearing, it was projected that Seminole could begin to face a water deficit in some of its service areas as early as the end of 2008 if the Consolidated Groundwater CUP was not approved soon. Finally, there is no requirement that Seminole use groundwater up to the 2013 demand limit in the CFCA rules. If Seminole is allocated surface water from the St. Johns River in this case because it applied conservation adjustments to its demand calculations, the appropriate amount of groundwater Seminole needs for reasonable-beneficial use will be determined in the pending Consolidated Groundwater CUP application, which also will determine how much "redundancy" is appropriate, if any. Condition 4 of the TSR specifically provides that the combined allocations of surface water under CUP 95581 and groundwater resulting from pending Consolidated Groundwater CUP application may not exceed the total projected demand for all four service areas in any year. With his adjustments, Dr. McCue projected a total potable water demand (for all sources and all kinds of uses) of 23.19 mgd for 2013 and 28.1 mgd for 2027. Based on those assumptions, Dr. McCue projected a requirement for 0.46 mgd of AWS in 2012, none in 2013 and 2014, 0.18 mgd in 2015, with increasing AWS requirements each succeeding year, up to 4.39 mgd in 2027. Seminole also is requesting a maximum day allocation of 11.59 million gallons. Of this amount, 7.59 million gallons are attributable to potable water needs. This maximum day demand for potable water supply use was calculated using a peaking factor of 1.7 based on existing potable water use rates, which is consistent with the District’s applicable rules. See A.H. § 12.2.4. (ii) Reclaimed Water Seminole has undertaken the expansion of its reclaimed water system to existing potable water customers in the Northwest-Northeast Service Area, which receives reclaimed water from the Yankee Lake and the Greenwood Lakes WWTPs. In 2005, about 4 mgd of reclaimed water was produced at these facilities; by 2025, 8.16 mgd will be available for reclaimed use. Upon implementation of the reclaimed water retrofit program, roughly 75% of the reclaimed water produced by these facilities will be reused to meet annual average demand, and about 100% will be used to meet maximum day demands. This complies with the requirement that CUP applicants meet non-potable water demands through the use of lower quality sources, such as reclaimed water, when feasible. See A.H. § 10.3(g). The reclaimed retrofit program is being implemented in 5 phases. Phase I has been completed and was put on-line in 2008. Phase II will be completed in 2010. Phases III, IV, and V are scheduled to be completed in 2015. The reclaimed retrofit program cannot be accelerated, because Seminole must produce sufficient wastewater to meet reclaimed water demands in those areas. Otherwise, greater reclaimed water augmentation than requested in the pending CUP application would be required to meet reclaimed water demand. There was no genuine dispute as to Seminole's need for an mgd on an annual average basis and a four-million gallon maximum daily allocation to augment its reclaimed water system as a result of the reclaimed retrofit program. The relevant issue raised by the objectors is whether there are lower acceptable quality sources of water than the St. Johns River available to augment Seminole's reclaimed water system. See A.H. § 10.3(g). Seminole’s Consideration of AWS Options Before filing the application for the CUP at issue in this case, Seminole evaluated a number of AWS options, including brackish groundwater, seawater desalination, and the St. Johns River. Brackish Groundwater Seminole considered and actually identified brackish groundwater withdrawn from Lower Floridan Aquifer wells as a potential AWS source and applied for a CUP in 2004 to use brackish groundwater wells near its Greenwood Lakes WWTP as a source of water to augment its reclaimed water system. Preliminary modeling of withdrawals of 6.25 mgd from wells near the Greenwood Lakes WWTP and 1 mgd from wells near the Yankee Lake WWTP indicated that there would be adverse impacts to wetlands and other surface waters, including the minimum level established at Lake Sylvan. The Greenwood Lakes WWTP is approximately five miles from Lake Sylvan. The Yankee Lakes WWTP is approximately a mile from Lake Sylvan. The modeled impacts on Lake Sylvan probably were significantly larger than the impacts of smaller brackish groundwater withdrawals, especially if withdrawn only from Greenwood Lakes wells. No pump tests were conducted. Even with limited knowledge, Seminole and the District concluded that the Lower Floridan Aquifer would not be a long- term, stable water supply source in Seminole and that use of brackish groundwater would require Seminole to design and construct a water treatment facility with a short useful life, making brackish groundwater an infeasible AWS option for Seminole. This conclusion was reached because there is little freshwater recharge to the Lower Floridan Aquifer in the area, and withdrawn brackish groundwater likely would be replenished by saltier water from the deeper aquifer, resulting in a degraded water supply. No expert testimony refuted that evaluation. Seawater Desalination The most probable location of a desalination facility to supply Seminole would be near the Atlantic Ocean in Volusia County. This option would require the construction of an extensive pipeline to transport desalinated water to Seminole, and reverse osmosis concentrate would have to be disposed of through an ocean outfall or deep injection well. Seawater desalination would require a complicated, expensive, and energy-intensive treatment process. The capital cost to supply 4.5 mgd to Seminole would be about $183 million, and operation costs would be twice those of the proposed Yankee Lake project, making the desalination option economically infeasible. RIBs Petitioners contended that Seminole should obtain supplemental water for its reclaimed system from its rapid infiltration basins (“RIBs”). RIBs are basins with highly- permeable soil that allow water to percolate into the surficial aquifer for disposal and beneficial recharge. Seminole uses RIBs to dispose of excess reclaimed water during wet weather conditions, when it is not needed to meet reclaimed water demands. When needed to meet reclaimed water demands, reclaimed water will be supplied to reclaimed water customers and will not be discharged to RIBs. Thus, reclaimed water will not be available from the RIBs during those times when augmentation water is needed. For RIBs to be used for reclaimed water augmentation, they would have to be combined with a large reservoir. The evidence was that a 400-acre, 450 million gallon reservoir would have to be constructed to store enough reclaimed water to meet Seminole’s augmentation needs. In addition, a treatment facility would be required to treat the reclaimed water stored in a reservoir prior to distribution to customers. Construction of the reservoir and treatment system would cost $110 million, which is far more than the $41 million required for construction of the reclaimed water augmentation component of the Yankee Lake Project. It would not be economically or technically feasible for Seminole to implement this reclaimed water storage and re- treatment system. Stormwater Petitioners also contend that Seminole could use stormwater to meet its reclaimed water augmentation needs, something that is almost unheard of in Florida. For this idea to work, stormwater would have to be captured and stored in order. This would require construction of a stormwater collection and transmission system extending throughout the Northwest Service Area. It also would require construction of a 450-million gallon reservoir and a treatment facility. The capital cost of a stormwater augmentation option would be $171 million, making it technically and economically infeasible. Tri-Party Agreement In December 1996, Seminole and the Cities of Sanford and Lake Mary entered into a contract known as the Tri-Party Agreement for the potential development of a regional reuse system. On its face, the agreement allows Seminole to obtain up to 2.75 mgd of reclaimed water from Sanford. However, in reality, the Tri-Party Agreement is not a feasible source of reclaimed water. First, the Tri-Party Agreement does not guarantee a specific quantity of reclaimed water that will always be available to Seminole. Second, Sanford's effluent is not required to meet the more stringent water quality standards, in particular for nitrogen, established for the Wekiva River Protection Zone, which Seminole’s Northwest-Northeast Service Area is in. Sanford only has to meet a 12 mg/l standard for nitrogen, while 10 mg/l is required for the Wekiva River Protection Zone. There is no indication that Sanford would be willing to guarantee 10 mg/l, and meeting the Wekiva River Protection Zone standards through blending would be problematic because blending would have to occur before introduction into Seminole's distribution system. Finally, Sanford’s reclaimed water transmission system does not operate at a high enough pressure to provide the required flow to Seminole’s system. For these reasons, despite the fact the Agreement has been in effect for over a decade, Sanford has been unable to provide any reclaimed water to Seminole. Iron Bridge WWTP The Iron Bridge WWTP is owned by the City of Orlando (Orlando). Under a contract with Orlando, Seminole sends wastewater from its Southeast Service Area to the facility and is entitled to receive a like amount of reclaimed water from the facility for reuse, up to a limit of 8.5 mgd. As a result, Seminole does not need augmentation for its reclaimed water reuse system for the Southeast Service Area. In addition to itself using reclaimed water under this contract, Seminole also sends some to the City of Oviedo (Oviedo) and to the University of Central Florida (UCF) under a contract for reuse by them. Riverkeeper in particular contends that Seminole should be required to use reclaimed water from the Iron Bridge WWTP to meet its needs for augmentation of its reclaimed water reuse system in the Northwest Service Area. But this would require the construction of multiple conveyance systems and large storage capacity to move sufficient quantities of reclaimed water from the Iron Bridge WWTP to the Northwest Service Area. In addition, it would create an augmentation deficit in the Southeast Service Area or eliminate amounts of reclaimed water being sent to Oviedo and UCF for reuse. The evidence was that this is not a feasible option for Seminole. St. Johns River Seminole’s ultimate selection of the St. Johns River as an AWS source was the culmination of more than a decade of planning and study. The 1994 District Water Supply Needs and Source Assessment found groundwater resources to be limited in Central Florida. The District engaged in the Water 2020 process to identify AWS sources to meet future demands in the region. The Water 2020 evaluation led to the development of the 2000 Surface Water Treatability Study at Lake Monroe on the St. Johns River, near the Yankee Lake site, which found the St. Johns River to be a cost-effective public supply source. In 1999-2000, the District developed the 2000 District Water Supply Plan, which identified the St. Johns River as a potential AWS source for Central Florida. The 2000 District Water Supply Plan was updated in 2004 to specifically identify the St. Johns River near Lake Monroe as a potential water source. The 2005 District Water Supply Plan re-confirmed the St. Johns River near Lake Monroe as a specific AWS project. Updates to the 2005 District Water Supply Plan also identified the Yankee Lake Site as the proposed location of the St. Johns River near the Lake Monroe Project. Starting in 2006, the District began implementation of an action plan for development of AWS sources consistent with the CFCA rules. The CFCA planning process also resulted in the identification of the proposed Yankee Lake Facility as an appropriate AWS source to meet Seminole’s post-2013 demands. In evaluating the St. Johns River as an AWS source, Seminole considered existing withdrawals from the St. Johns River. The Cities of Melbourne and Cocoa have used the St. Johns River for potable supply for several decades, and both are permitted to withdraw quantities greater than the 4.5 mgd requested by Seminole for potable use. In addition, the Cities of Deland, Winter Springs, and Sanford each have been permitted to use the St. Johns River as a reclaimed water augmentation source. These existing permitted uses have proved to be safe and reliable and created a reasonable expectation the river can be used for potable supply and reclaimed water augmentation. In addition to the planning and regulatory efforts described above, the District also established MFLs at various locations along the St. Johns River. In particular, the District established MFLs at State Road (SR) 44, which is 10 miles downstream of the Yankee Lake Site. In developing this MFL, the District determined that 155 mgd could be withdrawn from the St. Johns River upstream of SR 44. Since the requested 5.5 mgd is less than 4% of this quantity, the MFL determinations provide assurance that the river is a reliable AWS source. The capital costs of a 4.5 mgd surface water facility at Yankee Lake on the St. Johns River would be $78 million. The operation cost for a surface water facility at Yankee Lake would be much less than a seawater desalination facility, which would require twice as much energy as the surface water source. Capability and Environmental Concerns General The St. Johns River runs from south to north, starting at its headwaters in Indian River, Osceola, and Okeechobee Counties and emptying into the Atlantic Ocean in Duval County. The District has adopted 6 MFLs along the St. Johns River, and there are numerous United States Geologic Survey gauging stations which provide a long-term record of stage and flow. The St. Johns River Watershed is about 8,900 square miles. The St. Johns has a very gradual elevation decline from its headwater to its mouth. Rainfall, surface runoff, springs, seepage from the aquifer, and ocean tides affect the flow of the River. These characteristics result in relatively slow flow, slow reaction to rainfall, and reverse flows from the tidal influences. Seminole evaluated the historic relationships between rainfall and stage and flow in the St. Johns River over time. Because rainfall is the primary source of water for the St. Johns River, there is a close relationship between rainfall and river flow and stage. The stage and flow of the St. Johns River has fluctuated over time. These fluctuations are attributable to the Atlantic Multidecadal Oscillation, which is a long-term natural rainfall frequency cycle. Increases and decreases in flow and stage of the St. Johns River are explained by changes in rainfall. The evidence does not demonstrate manmade impacts to river stage or flow. The major tributaries of the St. Johns River are the Wekiva and Ocklawaha Rivers. The evidence does not indicate detectable impacts to the flow in the main stem of the St. Johns River due to changes in flow in these major tributaries. MFLs MFLs are defined as limits beyond which further withdrawals would be significantly harmful to the water resources or ecology of the area. MFLs are established based on: the collection of ecological data to identify the most constraining water resource features; the development of hydrologic models to simulate the effects of water withdrawals; the preparation of reports; scientific peer review; and the adoption of standards by the District through formal rulemaking. See § 373.042, Fla. Stat. MFLs are used by the District to assess cumulative impacts on a water body. The MFLs determinations at SR 44 near Deland measure from withdrawals in existence prior to 1999. Existing permitted withdrawals on the St. Johns River upstream of the SR 44 MFL, plus Seminole’s proposed 5.5 mgd withdrawal, total 37.9 mgd. Of this total, 22 mgd was not being withdrawn from the St. Johns River prior to 1999. Seminole used a conservative 25 mgd of new withdrawals to evaluate potential cumulative impacts. A total of 57 mgd of withdrawals from the entire St. Johns River was used to evaluate cumulative impacts associated with Seminole’s proposed withdrawals. This amount reflects the total permitted quantity of water which was not being withdrawn prior to 1999. The District is required to establish recovery strategies when an MFL has been violated and prevention strategies when an MFL will be violated within the next 20 years. None of the MFLs on the St. Johns River require recovery or prevention strategies. Impact of Yankee Lake Withdrawal Flow and Stage The historic flow records do not indicate that the existing withdrawals have had a detectable impact on flow or stage. Since these withdrawals are significantly greater than Seminole’s proposed withdrawal, it is reasonable to conclude that Seminole’s proposed withdrawal also would have an undetectable impact on the St. Johns River. The historic relationship between rainfall and flow can also be used to evaluate whether historic withdrawals have had any impact on flow in the St. Johns River. A double-mass analysis of rainfall and flow on the St. Johns River does not indicate any change in the relationship between rainfall and flow over time, even as the quantity of withdrawals has increased. The evidence was that the proposed withdrawal of 5.5 mgd would not cause a measurable change in either the flow or stage of the St. Johns River on an individual basis or cumulatively with other withdrawals from the River. Salinity Seminole and the District used sophisticated hydrodynamic models to predict the impact of the proposed withdrawal, individually and cumulatively with other withdrawals on the St. Johns. The models were well-calibrated to observed data, including water level, velocity, salinity, and discharge. Pointing to differences between observed and modeled salinities, primarily at the Dames Point Bridge (relatively near the mouth of the river), Riverkeeper's modeling expert, Dr. Mark Luther, expressed concern that the models did not properly account for estuarine or overturning circulation and therefore did not accurately predict salinity changes. Dr. Peter Sucsy, who developed the models, recognized the importance of estuarine overturning circulation. However, with the exception of the Dames Point station, statistical analysis showed a very good fit between simulated and observed data. At the Dames Point Station, the differences between simulated and observed salinities are larger (1.6 parts per thousand). But that location is close enough to the mouth of the river that it often measures marine water and a narrow range in salinities. Taking this into consideration, the model matches the observed data reasonably well. Dr. Sucsy's models are sufficiently accurate to provide reasonable assurance with respect to harm to the estuary system from water withdrawals. Dr. Luther also testified that it would have been more appropriate to examine salinity changes for each layer of the hydrodynamic models, rather than using vertically-averaged salinity values. But Seminole's expert, Mr. Ivan Chou, determined that there was no perceptible difference in the salinity impacts derived from vertically-averaged salinity versus salinity values at specific model layers for the proposed 5.5 mgd and cumulative 57 mgd withdrawals. As a result, it was proper to use vertically-averaged salinities when evaluating the impact of Seminole’s proposed withdrawal. Using the hydrodynamic models, Mr. Chou compared salinity values at 60 points along the St. Johns River from the mouth of the river to Buffalo Bluff, which is 90 river miles upstream, for a pre-1999 baseline scenario, a 5.5 mgd individual withdrawal scenario, a cumulative withdrawal scenario of 25 mgd, a cumulative withdrawal scenario of 57 mgd, and the minimum flow scenario of 155 mgd. The baseline modeling scenario reflects the natural fluctuations in salinity that occur as a result of tidal influence and seasonal changes in rainfall. The natural fluctuation in salinity on a daily basis can be 7 to 8 parts per thousand (ppt), while the seasonal change can be as high as 20 ppt. When the simulated 5.5 mgd, 25 mgd, and 57 mgd withdrawals are plotted against the baseline salinity levels, whether for maximum or minimum daily or 5-year salinities, the differences are undetectable. (For the 155 mgd withdrawal scenario, there is a slightly increased salinity level, but the change is still a fraction of a ppt.) The same results occur when examining average salinities or dry season salinities (May and June). In the 57 mgd withdrawal scenario, the largest increase in average salinity under annual conditions is only 0.135 ppt, and under dry season conditions is only 0.170 ppt. Even in the 155 mgd scenario, the largest predicted increase in average salinity at any point on the St. Johns River is just 0.365 ppt. The withdrawal scenarios have minimal impact on the location of isohalines--a line representing a specific salinity level in the river. Under natural conditions, there are large daily and seasonal changes in the location of a particular isohaline due to tidal effects. For example, the 15 ppt isohaline moves 8.1 miles on the average day. In comparison, the withdrawal of 5.5 mgd would cause the 15 ppt isohaline to move by just 0.02 miles, a withdrawal of 25 mgd would cause the 15 ppt isohaline to move 0.07 miles, and a withdrawal of 57 mgd would cause the 15 ppt isohaline to move 0.59 miles during the dry season. The salinity modeling demonstrates that the impact of Seminole’s proposed 5.5 mgd withdrawal is so small as to be indiscernible with the field instruments used to measure salinity in the St. Johns River. The cumulative withdrawal scenarios of 25 mgd and 57 mgd are similarly minimal and would not be measurable using conventional instrumentation. Nutrients The most prominent manifestation of nutrient imbalance in the St. Johns River is the increase in algal biomass, which can result in algal blooms. In the St. Johns River, algal biomass begins to accumulate in April, and the potential for algal blooms continues through September. Seminole will not make any nutrient discharges to the St. Johns River as part of its proposed use of water. Instead, the proposed withdrawals will remove nutrients from the River. It was determined there would not be a significant hydrodynamic impact from any of the three withdrawal scenarios. A 5.5 mgd withdrawal results in just a 0.17% decrease in flow, a 25 mgd withdrawal results in a 0.8% decrease in flow, and a 57 mgd withdrawal results in a 1.8% decrease in flow. From 1995-2007, the average total nitrogen level in the vicinity of the Yankee Lake site was 1.51 mg/l, while the average total phosphorus concentration was 0.09 mg/l. For 2003- 2007, the average total nitrogen concentration was 1.29 mg/l, while the average total phosphorus concentration was 0.09 mg/l. For the 5.5 mgd withdrawal scenario, the quantity of water removed would result in a 0.13% reduction in nitrogen loading and 0.14% reduction in phosphorus loading compared to the 1995- 2007 levels, and a 0.11% reduction in nitrogen loading and 0.14% reduction in phosphorus loading compared to 2003-2007 levels. A comparison of flow and load reduction for the 5.5 mgd withdrawal shows no impact on water quality. The same relationship holds true for cumulative withdrawals of 25 mgd or 57 mgd. Withdrawals of water from the River can increase residence time, which in turn has the potential to increase biomass in the water body. Seminole and the District used another version of Dr. Sucsy's hydrodynamic model to simulate water age and evaluate the effect of 5.5 mgd and 55.4 mgd withdrawals on residence time in the Lower St. Johns River. Compared to the baseline condition of 1996-2005, a withdrawal of 5.5 mgd is projected to cause a slight increase in the duration of algal blooms at Racy Point and Lake George. Under baseline conditions, an algal bloom with a duration of 60 days is expected to occur once every other year, an algal bloom with a duration of 71 days is expected to occur once every three years, and an algal bloom with a duration of 115 days is expected to occur once every 20 years. When Seminole’s proposed 5.5 mgd withdrawal is applied to these baseline values, the duration of an algal bloom increases by less than one hour once every other year up to 3.2 hours once every 20 years. When the cumulative 55.4 mgd scenario is applied, the duration of an algal bloom increases by 22.6 hours once every other year up to 71 hours once every 20 years. It is possible to offset the elevated algal biomass resulting from the slight increase in residence time from surface water withdrawals by further reducing nutrient loading to the river. Seminole and the District propose to achieve this nutrient reduction through reductions in discharges from the Iron Bridge WWTP. The Iron Bridge facility currently discharges treated wastewater to the Little Econlockhatchee River (the Little Econ), a tributary of the St. Johns River. However, Seminole and the other Iron Bridge participants plan to eliminate the discharge of wastewater to the Little Econ through increased reclaimed water use. The cessation of discharges to the Little Econ from the Iron Bridge facility will more than offset the impacts of increased retention time caused by the Yankee Lake withdrawal. The load reduction achieved through elimination of the Little Econ discharges is 3.3 times greater than the load reduction that would have to be achieved in order to offset the increased residence time. Even at 11.59 mgd, the maximum permitted daily withdrawal from the Yankee Lake intake facility, the Iron Bridge offset would still be 1.7 times greater than the amount needed to offset increased residence time. The District and Seminole have agreed to an additional permit condition that would prohibit Seminole from withdrawing water from the St. Johns River on any day following a day when discharges have occurred to the Little Econ from April 1 to September 15. This additional condition provides reasonable assurance that the proposed CUP will not cause or contribute to an increase in nutrients in the River. It is not uncommon for the District to require permittees to work with other entities to make reclaimed water changes a condition for CUP issuance. Such a permit condition appears in a recent CUP issued to the Orlando Utilities Commission. Riverkeeper in particular contends that these permit conditions are not enforceable without the agreement of the other entities involved in Iron Bridge, namely those who would relinquish a right to discharge to the Little Econ. But the condition clearly is enforceable against Seminole. Ecological Evaluation The evidence provided reasonable assurance that there will be no discernable changes to key ecological parameters as a result of the Yankee Lake withdrawal, individually or cumulatively with other surface water withdrawals from the River system. Ongoing withdrawals on the Peace and Alafia Rivers having a much greater impact on the flow of water in those rivers than the proposed Yankee Lake withdrawal, individually or cumulatively, have not caused significant changes in vegetation, benthic invertebrates, fish population, phytoplankton population, or other indicators. The evidence was that there was no appreciable change in population of the American shad, a common species in the St. Johns River, between the 1970s and 2000s. No appreciable change in the biodiversity of fish species is expected as a result of the proposed Yankee Lake withdrawal, individually or cumulatively. Submerged aquatic vegetation (SAV) provides a static habitat and a food source for aquatic species. The most common SAV in the St. Johns River is Vallisneria americana, or tape grass, which occurs in freshwater and oligohaline habitats. Its ideal salinity level is 1 ppt or less, but it can tolerate salinities up to 8 or 9 ppt. Between 1999 and 2001, an extended drought resulted in a fairly sizable decline in Vallisneria in the Lower St. Johns River due to higher salinities. Data from 2003-2004 indicate that Vallisneria had expanded and re-colonized areas with salinities up to 5 ppt. Since changes in salinity as a result of Seminole’s proposed withdrawal, on an individual or cumulative basis, will be small, it is not expected that there will be a significant impact on Vallisneria, or the aquatic life that depends on it. Riverkeeper witness Robin Lewis testified that existing withdrawals have reduced flows in the St. Johns River, which has impacted the ability of SAV to recover from higher salinities that occur during droughts. However, the graph he relied on to show a declining trend in flows in the St. Johns River only reflected data recorded through 2002; the most recent flow data indicates there has been an increase in flows, with the highest flow on record at SR 44 occurring in August 2008. The evidence provided reasonable assurance that there will be no impact to macroinvertebrates as a result of Seminole’s proposed withdrawal. Macroinvertebrates tolerate wide salinity ranges, and there would be no meaningful change in the distribution of macroinvertebrates due to Seminole’s proposed withdrawal. Impingement and Entrainment The intake structure for the proposed Yankee Lake facility is designed to prevent impingement and entrainment by minimizing the velocity of water entering the structure and by using a series of screens to prevent entry into the structure. The intake structure is in an area where the intake velocity would be equal to or less than the velocity of the river, making the intake structure area an unattractive place for fish to spawn. While fish and other mobile aquatic life would not be expected to be impinged or entrained, it is expected that some immobile aquatic life forms, such as certain fish eggs, will become entrained. Jacksonville’s consultant Terry Cheek estimated that 35,000 American shad eggs could be entrained by Seminole’s proposed withdrawal each year. However, an American shad female typically carries about 470,000 eggs and spawns repeatedly during a season, meaning a single female can produce more than a million eggs in a season. Meanwhile, the average number of female shad removed from the St. Johns River due to recreational fishing is about 1,130 individuals, meaning that fishing removes about 530 million eggs from the St. Johns River every year. Even if the egg density were two orders of magnitude greater than Mr. Cheek assumed, entrainment would remove far fewer eggs from the St. Johns River than recreational fishing. Public Interest The evidence provided reasonable assurance that the issuance of Seminole’s CUP is in the public interest. It will provide a source of needed potable water other than stressed fresh groundwater. It will allow Seminole to maximize reuse of reclaimed water, which will also reduce its need for fresh groundwater. There is reasonable assurance that environmental harm from the issuance of Seminole’s CUP will not be significant and has been reduced to an acceptable amount. St. Johns County in particular contends that, despite all the evidence of reasonable assurance provided, not enough consideration has been given to the impact of Seminole’s CUP project on the Wekiva River Aquatic Preserve and Seminole's Black Bear Wilderness Area. However, additional consideration of those kinds of impacts will be considered in further required permitting for the project. The evidence in this case provided reasonable assurance that the proposed water withdrawal will not significantly harm those natural resources and that harm to those resources has been reduced to an acceptable amount. The Petitioners contend that issuance of Seminole’s CUP should be delayed until after the District completes its two-year AWS Study of the entire St. Johns River basin, including the Oklawaha. The greater weight of evidence indicates that such a delay is unwarranted and would impose additional unnecessary costs on Seminole. Starting in 2006, Seminole implemented an increased rate structure to finance a $156 million bond issue for its water and wastewater capital improvement program, including the Yankee Lake Project. Seminole has also received a $7.5 million grant from the District to finance the project. Seminole has already incurred approximately $4.3 million in engineering design services. If the project were delayed one year, it would incur about $4.5 million of additional costs. If the Yankee Lake Project were delayed more than a year, Seminole would incur additional cost of $15.4 million, including the expenditures to date and the loss of the $7.5 million in grant money. Given the extra costs that would be incurred by Seminole and its residents as a result of any delay in implementation of the Yankee Lake Project, deferring Seminole’s CUP until after completion of the larger AWS study would not be in the public interest. Petitioners' Standing Riverkeeper bases its standing in part on allegations that Seminole’s proposed use will impact the use and enjoyment of the St. Johns River by a substantial number of Riverkeeper’s members. A substantial number of Riverkeeper's members use and enjoy the River for recreation, boating, fishing, watching wildlife, and similar activities. However, it was not proven that Seminole's proposed CUP will affect their use or enjoyment of air, water, or natural resources of the River. Riverkeeper also bases its standing in part on Section 403.412(6), Florida Statutes, which allows not-for- profit corporations to establish standing if they have 25 members residing in the county where the proposed activity is to take place. Riverkeeper introduced evidence that, by the time of the final hearing, it had more than 25 members residing in Seminole County. Some of these Seminole residents did not join Riverkeeper until shortly before the final hearing. Seminole did not object to testimony regarding the new Seminole members of Riverkeeper, and it was given an opportunity to depose the witness during the hearing but declined to do so. (Seminole's objection to admission of an updated membership list into evidence was overruled.) At the conclusion of Riverkeeper's case on the second-to-last day of the final hearing, Riverkeeper made an ore tenus motion to amend its petition to allege standing based on Section 403.412(6), Florida Statutes, and ruling was reserved. See Conclusion of Law 141, infra, for the ruling. Jacksonville and St. Johns County base their standing on Section 403.412(5), Florida Statutes, which allows local governments to establish standing by filing a verified pleading alleging that the permitted activity will have the effect of impairing, polluting, or otherwise injuring the air, water, or other natural resources of the state. Jacksonville and St. Johns County filed the verified petitions required by Section 403.412(5), Florida Statutes. In addition, the evidence proved that Seminole’s proposed CUP will impair, pollute, or otherwise injure the air, water, or other natural resources of the state to some extent, even if not enough to require denial of the CUP application, especially before the agreement between the District and Seminole to add a condition to the CUP.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the District enter a final order granting Seminole's pending CUP 95581 with the conditions specified in the TSR and the additional condition proposed by the District and Seminole regarding nutrient impacts. Jurisdiction is retained for up to 30 days after the District's entry of its final order to rule on Seminole's motions for attorney's fees and costs under Sections 57.105(4) and 120.595(1), Florida Statutes, by a separate final order if Seminole invokes the exercise of that jurisdiction within the 30-day time period. DONE AND ENTERED this 12th day of January, 2009, in Tallahassee, Leon County, Florida. S J. LAWRENCE JOHNSTON 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 12th day of January, 2009.
Findings Of Fact Petitioner, Robert Brown, is the co-owner of Lot 13 and the northern half of Lot 14, Block 7, Lake Addition to Boynton in Boynton Beach, Palm Beach County, Florida. The property consists of a parcel approximately 150 by 150 feet and is located along the western edge of the Intra-coastal Waterway at N.E. 8th Ave. and N.E. 7th Street in Boynton Beach. At all times pertinent to the issues herein, Petitioner was the owner of this property which is vegetated along the Eastern half with mature mangrove trees which extend back from the water's edge approximately one half the depth of the lot. These mangroves include red, black, and white species and the larger are approximately between 18 and 22 years old. The majority of the trees, however, are younger than that. The Western half of the property is sparsely vegetated and in the heavily vegetated half, there is an open area approximately 30 by 30 feet which appears to have been cleared and on which there are no mature mangrove trees. On July 19, 1984, Petitioner filed an application for a permit to construct a 1625 square foot house on pilings together with a 164 by 4 foot boardwalk extending in a west to east direction from the westernmost edge of the mangrove community to the waterside of the proposed dwelling giving access thereto. The eastern half of the property in question appears to be lower in elevation than the western half and experiences some tidal inundation during periods of high tide. Though there is a riprap deposit along the eastern edge of the property and two berms extending along the landward side of the riprap, water from the Intra-coastal Waterway periodically flows through the riprap, over the berms, and onto Petitioner's property. This water is afforded access onto the property also, by a northwest running ditch located south of the southern boundary of the property which ditch is connected to the waterway. It intersects with another ditch which runs due north to an intersection with an east-west depression, also connected to the Waterway, running along the northern boundary of the property. Mangroves of some size are found in and on the edges of this ditch. Petitioner's construction proposal, involving the driving of supporting pilings for the dwelling, is a dredge and fill activity as defined by the Department of Environmental Regulation's (DER), experts and requires the issue of a dredge and fill permit. There is a conflict between the Petitioner's evidence regarding the physical location of his proposed dwelling and boardwalk and that of the agency personnel who, with benefit of a survey, determined that the larger clearing referenced by the Petitioner does not lie on his property and that the indicated cleared cut through the mangrove community to the waterway on Petitioner's property for the walkway does not lie on Petitioner's property but instead is approximately 30 feet south of the southern boundary. Having reviewed the application submitted by Petitioner, DER requested additional information regarding construction techniques and plans. These have not, to this date submitted in a tangible form the information requested. Petitioner's attorney provided some of the information requested orally to DER at some time in the past, giving some assurances that the disruption of water quality during construction would be kept at a minimum and would be only temporary. However, since DER did not have available to it the additional information it requested so as to appropriately evaluate the true proposal by Petitioner and the effect of any modifications, based on the failure of Petitioner to provide adequate assurances that water quality standards would not be violated and that the project was not contrary to public interest as is required of him by Section 403.918, Florida Statutes, on January 23, 1985, the Department issued an intent to deny the permit. As a part of this intent to deny, the agency suggested that the project be relocated to the upland one-half of the Petitioner's property. Construction there would not have involved any mangrove disturbance and would have been consistent with the agency's standards and policies. Historically the property owned by Mr. Brown did not border the open body of water which now constitutes Lake Worth or the Intra-coastal Waterway. As far back as 1872, the property was dry and supported no mangrove growth. Mangroves existing currently on the property have developed there since the construction of the Intra-coastal Waterway and its joinder with Lake Worth and the installation of the inlets which connect this water body with the Atlantic Ocean. On the property directly north of Petitioner's boundary sits a house built on fill approximately one and a half feet above the gradient of Mr. Brown's lot. Immediately south of his property is a condominium building also located on fill bordering the Intra-coastal Waterway. Evaluation of photographs of the area reveals that both pieces appear to have been identical in make-up to that owned by Petitioner in both topography and vegetation prior to being filled for construction. In fact, this parcel lies in a rapidly developing commercial and residential area. Petitioner also presented the testimony of two long time residents of the area who indicate that prior to the widening of the Intra-coastal Waterway, Petitioner's property did not border the open water of Lake Worth or the waterway. Back in the 1940's and before, the property was not covered with mangrove trees and was, in fact, used as farmland by Mr. Pinder, one of these two witnesses, who grew bell peppers and squash there. Mr. Pinder was hired by Palm Beach County during the 1940's and 1950's to dig mosquito control ditches on the property and Petitioner contends that it was these ditches which developed the connection with the Intra-coastal Waterway and thereby created a jurisdictional wetland. The weight of the evidence, however, indicates that though ditches were dug for mosquito control as described by Mr. Pinder and even before, it was not these ditches which changed the character of the property to jurisdictional wetland. Review of the maps submitted by Mr. Brown shows to a very limited degree some reference to ditches on or near the property in question but neither this evidence nor the testimony of both long-time residents is sufficiently clear and convincing to establish to the satisfaction of the Hearing Officer that the character of Mr. Brown's property was so radically changed by the digging of these ditches as to become jurisdictional because of them. Turning to the question of the impact of the proposed construction on the mangrove system, the evidence presented by the agency and to a lesser degree by Petitioner himself shows that there would be some adverse impact on the mangrove system through the direct destruction of some existing trees and saplings, the trimming of some of the overhanging mangrove canopy, and the subsequent shading of immature mangroves by the construction of the dwelling and the boardwalk. The evidence available indicates that the construction of the dwelling itself cannot be contained within the existing clearing and for the construction of the boardwalk, an additional cut and shading will be required. Mangroves play an important part in the water quality and biological considerations of Section 403.918 Florida Statutes. The deterioration of fallen mangrove vegetation constitutes an important part in the food chain of fish and small invertebrates. Existing trees and roots provide habitat for various birds, invertebrates, mammals, and reptiles and the water quality considerations relating to the filtering of run-off water from uplands and the assimilation of pollutants in the passing water is significant. DER was and is concerned that the proposed project does not provide reasonable or adequate assurances that water quality standards will not be violated. Turbidity, transparency, and dissolved oxygen standards may well be violated during the construction phase and the agency's concerns have not been addressed or lessened by Petitioner's unformed proposals for modification. The fourth standard, that involving biological integrity, will be a continuing and ongoing consideration due to the fact that the shading created by the house and boardwalk will be constant. After full consideration of the application and those limited matters submitted in response to the agency's expression of concern, the agency has concluded that the project will adversely impact the conservation of fish and wildlife and their habitats in the area; will adversely affect fishing and recreational values and marine productivity; will adversely effect current and relative values of functions performed in the area; and will be of a permanent nature. The agency has not, however, quantified these negative effects or demonstrated that they will be of any significant magnitude. It is difficult to conceive that in an area already violated by the encroachment of civilization as demonstrated by the unrestrained fill both to the north and to the south of Petitioner's property, that the preservation of a relatively miniscule enclave, on highly valuable waterfront property, will have any substantial beneficial effect on the overall biological, ecological, or water quality considerations of the Intra-coastal Waterway, Lake Worth, or the Atlantic Ocean. The construction disruption will be minimal and for a limited period of time. The effects of shading will be of a longer duration but would appear to be miniscule in comparison to the surrounding area. DER and its subordinate associate, the Palm Beach County Health Department, both recommend that the application be denied because of Petitioner's failure to provide reasonable assurances that the project will not violate water quality standards and will not be contrary to the public interest. The cumulative impact concerns of both DER and the Health Department are valid in theory but inappropriate here. Evidence that the recent mangrove destruction in this area has been been extensive cannot be debated. No doubt it has been. The fact remains, however, that this property is in a highly desirable location. The area has not been preserved by the State in its program for the accumulation and preservation of wetlands under a state umbrella and is of such a small size that the cumulative impact to be felt from the limited destruction of mangroves here would be minimal. There is some evidence to indicate that a permit was issued to a previous owner of this property allowing the destruction of mangrove seedlings in the western section of the community and this action has not been undertaken. This permit has not expired and is transferable to Petitioner.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED that the Department of Environmental Regulation issue permit number 5008992206 to the Petitioner, Robert 8rown for the construction of the house and walkway as proposed, under the provision of adequate and firm reasonable safeguards to minimize water quality disruption during construction by Petitioner. RECOMMENDED this 11th day of February, 1987, at Tallahassee, Florida. ARNOLD H. POLLOCK, 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 llth day of February, 1987. COPIES FURNISHED: Dale Twachtmann, Secretary Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, FL 32301 Terrell K. Arline, Esquire 325-C Clematis Street West Palm Beach, FL 33401 Karen A. Brodeen, Esquire Douglas MacLaughlin, Esquire Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, FL 32301 APPENDIX 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 to this case. By the Petitioner 1 Incorporated in Finding of Fact 1. 2. Incorporated in Findings of Fact 2 & 3. 3 & 4. Incorporated in Finding of Fact 4. Incorporated in Finding of Fact 4. Incorporated in Finding of Fact 10. 7 & 8. Incorporated in Findings of Fact 9 & 11 Incorporated in Finding of Fact 11. Incorporated in Findings of Fact 3 6 13. Accepted and incorporated in Findings of Fact 7 & 8. Accepted and incorporated in Findings of Fact 7 & 8. Not a Finding of Fact but a comment on the evidence. By the Respondent Incorporated in Finding of Fact 1. Incorporated in Finding of Fact 3. 3 & 4. Incorporated in Findings of Fact 2 & 4. 5. Incorporated in Finding of Fact 5. 6. Incorporated in Findings of Fact 3 & 6. 7. Incorporated in Finding of Fact 6. 8. Incorporated in Finding of Fact 7. 9 & 10. Incorporated in Finding of Fact 8. 11 Incorporated in Finding of Fact 13. 12. Incorporated in Finding of Fact 14. 13. Incorporated in Finding of Fact 15. 14-16. Incorporated in Finding of Fact 16. 17. Incorporated in Finding of Fact 15. 18. Incorporated in Finding of Fact 17. 19 & 20. Incorporated in Finding of Fact 11. 21-24 Incorporated in Findings of Fact 11 & 12. 25. Incorporated in Findings of Fact 17 & 18. ================================================================= AGENCY FINAL ORDER ================================================================= STATE OF FLORIDA DEPARTMENT OF ENVIRONMENTAL REGULATION ROBERT BROWN, Petitioner, DOAH CASE NO. 85-0517 OGC FILE NO. 85-0122 vs. STATE OF FLORIDA, DEPARTMENT OF ENVIRONMENTAL REGULATION Respondent. /
The Issue The issues to be decided in this case are whether Respondents are liable for the violations charged in the NOV, whether Respondents should pay the penalties assessed in the NOV, and whether Respondents should be required to take the corrective actions demanded in the NOV.
Findings Of Fact The Department is the state agency with powers and duties related to the regulation of construction activities in wetlands and surface waters, including filling in wetlands. Respondents are individuals who own real property on Bayshore Road in North Fort Myers, Florida. Some confusion exists in the record about the street number for the property. It is alternately described as 11590, 11620, 11650, and 11850. This is partly due to the fact that the property consists of at least two recorded parcels. The actual location of the filled area is not disputed, nor is it disputed that Respondents own the property where the fill was placed. The property is adjacent to the Caloosahatchee River. It contains freshwater marsh wetlands dominated by Leather Fern. The Department conducted a site inspection of Respondents’ property and determined that Respondents had filled 0.96 acres of wetlands. The Department produced evidence that it incurred costs of $1,824.50 in this case. The corrective actions ordered in the NOV, which are designed to restore the wetlands that were filled, are reasonable.
Findings Of Fact On June 27, 1979, Respondent Department of Environmental Regulation's St. Johns River District office received an application from Petitioner John W. McPhail, Deland, Florida, for a permit to conduct dredge and fill activities on his property at Lake Johnson, DeLeon Springs, Florida. The application reflected that Petitioner desired to dredge 100 cubic yards of material Waterward of the lake mean high Water line and 100 cubic yards landward of the mean high water line, and then fill an adjacent cove area on his Property with the 200 cubic yards of material. (Respondent's Exhibit 1) Lake Johnson is a small privately owned lake about fifteen acres in area. There are two distinct "lobes" of the lake which are joined by a narrow band of water. Each of these lobes is approximately seven acres in area. Some four or five houses, including, Petitioner's, are located around the lake. In the early Seventies, Petitioner dredged part of his shoreline and, in the process, too much material was inadvertently removed from the present cove area and placed in the middle of the property, which left a hump of land in the middle. The shoreline now is irregular with steep ungraded banks, and the cove area is somewhat stagnant. Petitioner wishes to restore the property by dredging the "hump" created by prior filling, and return the material to its Original location by filling the cove area. This will produce an even, sloped shoreline extending some 200 feet and improve the appearance of the lakefront. It will also reduce present maintenance Problems. (Testimony of Petitioner, Vause, Petitioner's Exhibits 1-3) A field biologist in Respondent's District Dredge and Fill Permitting Section conducted an on-site inspection on August 28, 1979, and rendered a report of the inspection on October 2, 1979. He found that the dominant plant community along the banks of the shoreline consisted primarily of upland weeds and grasses such as broomsedge and bahaia grass. Additionally, primrose willow was found in that location. The vegetation along the shoreline includes maidencane and a small amount of bullrush while the open water area is predominately vegetated with water lilies. Primrose willow is a species of vegetation found in the transitional zone of a submerged land, and bullrush, maidencane, and water lily are also fresh water species of vegetation found in submerged lands, as defined in Chapter 17-4, Florida Administrative &ode. The water depth in the lake is approximately eight feet and the depth the water at the steep banks of the Petitioner's property is approximately three feet. Wetlands vegetation of the above types are conducive to the improvement of water quality by increasing dissolved oxygen levels after removal of polluting nutrients from the water. The removal of a significant amount of such vegetation may have a measurable adverse effect on water quality. Although Lake Johnson, a Class III body of water, presently has excellent Water quality, the vegetation along the shoreline has been removed to a degree of about ten to fifteen percent. The removal of fifteen to twenty percent or more of a shoreline in such a lake normally produces a measurable adverse effect on water quality. The dredging of material along a shoreline can produce short-term turbidity of the water. (Testimony of Vause, Respondent's Exhibits 2-3) Respondent's inspector found that although filling the cove would remove some beneficial aquatic and land vegetation, would most likely reestablish if proper sloping was maintained on the shoreline. He also noted in his report that the proposed project would restore approximately one-half acre of open water to the lake. He therefore interposed no objection to the filling aspect of the project, but believed that dredging should not be undertaken waterward of the ordinary high water line, and that the shoreline should be merely contoured without dredging. By letter of October 4, 1979, Respondent's district manager advised Petitioner of its intent to deny his application for permit for the reason that the proposed work would eliminate approximately .5 acres of wetland community and thereby degrade water quality in the areas of BOD, turbidity, and dissolved oxygen. (Testimony of Vause, Respondent's Exhibits 2-4)
Recommendation That Petitioner be issued the requested permit, subject to standard conditions. DONE and ENTERED this 13th day of February, 1980, in Tallahassee, Florida. THOMAS C. OLDHAM Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: Segundo J. Fernandez Assistant General Counsel Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32301 John W. McPhail Route 1, Box 692H Deland, Florida 32720 ================================================================= AGENCY FINAL ORDER ================================================================= BEFORE THE STATE OF FLORIDA DEPARTMENT OF ENVIRONMENTAL REGULATION JOHN W. MCPHAIL, Petitioner, vs. CASE NO. 79-2174 STATE OF FLORIDA, DEPARTMENT OF ENVIRONMENTAL REGULATION Respondent. /
The Issue The issue to be determined in this case is whether the Respondents, Florida Department of Transportation (“FDOT”) and Palm Beach County (also referred to as “the Applicants”), are entitled to the issuance of an Environmental Resource Permit (“ERP”) to construct an extension of State Road 7 (“SR 7”) and its associated surface water management system in Palm Beach County.
Findings Of Fact The Parties The City is a municipality incorporated under Florida law. The District is a regional agency with the authority to regulate the construction, operation, and maintenance of any surface water management system pursuant to chapter 373, Part IV, Florida Statutes, and Florida Administrative Code Titles 40E and 62. FDOT is an agency of the state of Florida charged with the establishment, maintenance, and regulation of public transportation. It is a co-applicant for the ERP permit. Palm Beach County is a political subdivision of the State of Florida, and is a co-applicant for the ERP permit. Background State Road 7 Extension The ERP was issued by the District for an 8.5-mile extension of SR 7 between Okeechobee Boulevard and Northlake Boulevard in Palm Beach County. The purpose of the proposed roadway is to relieve traffic now moving through rural residential areas and two large residential developments known as The Acreage and Jupiter Farms. The proposed roadway would also improve hurricane evacuation by providing additional capacity and connectivity, and reduce emergency response time in the rural residential areas. The proposed roadway alignment was selected by FDOT after a multiyear corridor study under a National Environmental Protection Policy Act process. Four corridors were considered using federal selection criteria that addressed social, environmental, property, physical, and financial impacts. There are two segments of the proposed roadway covered by the ERP. The southern segment would add two more lanes to the existing two-lanes of SR 7 from Okeechobee Boulevard North to 60th Street North, just south of the M-Canal. This segment is 4.4 miles long. The southern segment is not at issue in this case. The northern segment would extend four lanes of SR 7 east from 60th Street North about one mile, and then north 3.1 miles to Northlake Boulevard. This is the roadway segment challenged by Petitioner. Hereafter, all references to “the Project” are to the northern segment. The Project includes a raised roadway, median, sidewalks, bike lanes, and stormwater swales. It also includes a bridge over the M-Canal and a bridge over a water control outfall. The Project would be constructed in an existing right- of-way (“ROW”). FDOT owns a ROW that is approximately 200 feet wide. The County owns an adjacent 120-foot-wide ROW, so that the total width of the Project ROW is 320 feet. Running north/south within the ROW is a dirt service road, a ditch, and a fence. Much of the vegetation in the ROW is dominated by invasive and exotic plant species, including Melaleuca, Carolina Willow, Brazilian Pepper, and Australian Pine. The Ibis Development West of the Project ROW is the 1,958-acre Ibis Golf and Country Club residential development (“Ibis”). In 1989, an ERP was issued for Ibis’ surface water management system (“the Ibis system”). The Ibis system includes almost 300 acres of interconnected lakes that provide water management and water quality treatment for Ibis. The 1989 permit required the Ibis system to be sized to receive and treat runoff from a segment of Northlake Boulevard and from an existing two-lane road off of Northlake Boulevard that serves the commercial area of Ibis, which is directly north of the Ibis residential area. The Ibis system was also required to receive and provide water treatment and storage for the stormwater runoff from 46.8 acres of the ROW for SR 7. The parties introduced evidence about modifications to the 1989 permit, which the City contends reduced the treatment capabilities of the system. It is found from the preponderance of the evidence that the original system and its modifications continued to meet design requirements to store and treat future runoff from 46.8 acres of the SR 7 ROW.1/ When the water in the Ibis lakes reaches elevation 17.5 feet NGVD (National Geodetic Vertical Datum), pumps at two pump stations at the south end of Ibis begin pumping water over a berm into Ibis Preserve, a 366-acre natural area directly south of Ibis. Water is retained in Ibis Preserve unles it exceeds an elevation of 18.5 feet, when it then passes over an outfall structure into the Grassy Waters Everglades Preserve (“Grassy Waters”) to the east. Ibis Preserve provides additional water quality treatment for the water pumped from Ibis, but this additional treatment was not part of the calculation of water quality management for Ibis. The Ibis system was required to meet District permitting criteria before discharge to Ibis Preserve. The North Palm Beach County Improvement District (“Improvement District”) owns and has operational and maintenance responsibility for the Ibis system. It also owned and managed Ibis Preserve, but transferred ownership and management of Ibis Preserve to the City in 2004. Grassy Waters/Water Catchment Area To the east of the Project is the City-owned “Water Catchment Area,” which covers about 14,700 acres or 23 square miles. The Water Catchment Area is owned by the City and is part of its public drinking water supply system. Water in the Water Catchment Area flows to Lake Mangonia where it is withdrawn, treated, and then delivered to residents and businesses in the City, the Town of Palm Beach, and the Town of South Palm Beach. There is a statement in the Project application that Grassy Waters refers only to the open water marsh within the Water Catchment Area. The Water Catchment Area includes other habitat types besides open marsh. Most of the information in the record indicates that Grassy Waters and the Water Catchment Area have the same boundaries. Therefore, in this Recommended Order, Grassy Waters and the Water Catchment Area are treated as being two names for the same area. Grassy Waters was once connected to the Everglades and large portions of it have the same characteristics, being an open water marsh with an extended hydroperiod. It is oligotrophic, meaning it is low in nutrients and has an ecosystem adapted to low nutrient conditions. It was undisputed that most areas of Grassy Waters are of high or even pristine environmental quality. Grassy Waters has periphyton, an assemblage of algae that only survive in phosphorous levels of less than 10 parts per billion (“ppb”). Periphyton is the base of the food chain in the open water marsh area of Grassy Waters and is consumed by apple snails and many invertebrates and fish. Grassy Waters has a visitor and nature center and provides recreational opportunities, such as canoeing, hiking, and bird watching. There appeared to be disagreement about whether the Project ROW is located in Grassy Waters or adjacent to it. The ROW is not within Grassy Waters, it is adjacent. However, the wetlands and other surface waters within the ROW are hydrologically connected to Grassy Waters. In the western part of Grassy Waters, which ends at the Project ROW, there are hammock islands and hydric pine flatwoods. The City contends these areas and the rest of the ROW were historically open water marsh, but were changed by human activities. The more persuasive evidence is that this western area was not all open marsh, historically. It was an area of natural transition from open water marsh to other habitat types. Ibis Impacts to Grassy Waters The parties disputed whether the Ibis system is a “failed system.” This is not a technical or defined term. The relevant issue is whether the Ibis system is operating in conformance with the requirements of its permit. The City contends the Ibis lakes are eutrophic and that sediment accumulation in the lakes is releasing phosphorus back into the water, which ends up in Grassy Waters. However, the City’s expert witness, Dr. Harper, admitted that the phosphorus concentration being discharged from the Ibis system, about 40 ppb, is typical for surface water management systems serving large residential developments, although that concentration is at the high end of the range. The phosphorus concentration is closer to 30 ppb in discharges from Ibis Preserve into Grassy Waters, showing that Ibis Preserve provides additional treatment to the waters coming out of Ibis. The characterization of the nutrient loading from the Ibis system as “typical” did not address the additional nutrients in the drainage that the Ibis system is required to accept from the SR 7 ROW. The record does not show that the nutrient concentrations from the Ibis system would still be typical if all of the ROW drainage were added without pre-treatment, as was contemplated by the 1989 Ibis permit. Because Grassy Waters is an oligotrophic ecosystem, it can be adversely affected by phosphorus levels above 10 ppb. When phosphorus is introduced into an oligotrophic system in concentrations over 10 ppb, the system begins to change to denser wetland vegetation, which can include invasive and nuisance species, such as cattail. There is denser vegetation and cattails in Grassy Waters near the Ibis Preserve outfall. There is also more phosphorus in sediments near the outfall. These effects decrease with distance from the outfall, but some effects were detected as far as a half mile from the outfall. The City’s expert witness, Dr. Gaiser, testified that periphyton is dissolved by high nutrient levels and replaced by weedy algae. She found adverse effects on periphyton near the outfall. Dr. Gaiser also found microcystis near the outfall. Microcystis is a toxic algae caused by high elevations of phosphorous. Microcystis comprised over 10 percent of the cell density of the algal community near the outfall. The District’s witness, Mr. Waterhouse, conceded that there is a problem with nuisance vegetation at the discharge point into Grassy Waters. He said the District was not aware of the problem before information was developed for this case. No evidence was presented about what consideration the District gave in 1989, when Ibis was permitted, to the potential adverse impacts of discharging phosphorus into the oligotrophic ecosystem of Grassy Waters. Based on the evidence that a phosphorus concentration of 30 ppb is expected for this kind of surface water management system, it must be concluded that the Ibis system was not designed to prevent harm to oligotrophic receiving waters. Respondents presented evidence to show that phosphorus loadings from the M-Canal could be the cause of the adverse impacts found near the Ibis Preserve outfall. The M-Canal was constructed by the City for the primary purpose of delivering water from Lake Okeechobee, via connection to the L-8 Canal, to the Water Catchment Area for public water supply. For most of its length, the M-Canal runs through Grassy Waters. The City generally maintains the water level in the M-Canal below the elevation of Grassy Waters so water in the canal will not flow into Grassy Waters. However, on some occasions, water flows from the M-Canal into Grassy Waters. High phosphorus concentrations have been recorded in the M-Canal; as high as 300 ppb. Nuisance vegetation is growing in the area where the M-Canal connects to the Water Catchment Area. The preponderance of the evidence establishes that the adverse impacts described by the City’s experts in the area of the Ibis Preserve outfall are caused primarily by discharges from Ibis Preserve. There are three other developments adjacent to Grassy Waters that occasionally discharge to Grassy Waters. These discharges are likely to contain some nutrients, but the amount of nutrients and their effects, if any, on Grassy Waters were not described in the record. The Water Catchment Area is a Class I waterbody because it is used for public water supply. The water quality standard for phosphorus and other nutrients in a Class I waterbody is set forth in Florida Administrative Code Rule 62-302.530(48)(b): In no case shall nutrient concentrations of a body of water be altered so as to cause an imbalance in natural populations of aquatic flora or fauna. Grassy Waters was designated by the Department of Environmental Protection (“DEP”) as a stream. Rule 62-302.531(2)(c) states that the narrative criterion “shall be interpreted as being achieved in a stream segment where information on chlorophyll a levels, algal mats or blooms, nuisance macrophyte growth, and changes in algal species composition indicates there are no imbalances in flora or fauna.” The City presented some evidence regarding nuisance macrophyte growth and changes in algal species composition in Grassy Waters near the Ibis Preserve outfall. Little evidence was presented regarding the practice of DEP or the District in the application of the narrative nutrient standard, but the preponderance of the evidence indicates the agency practice is to consider a stream segment as a whole to determine whether it exhibits an imbalance in natural populations of aquatic flora and fauna.2/ During the course of this proceeding, the District issued administrative complaints against the Improvement District and the City, which include Orders for Corrective Action. The complaints were issued pursuant to section 373.119, Florida Statutes, which authorizes such action when a water management district believes that a violation of any provision of chapter 373 or district rule has occurred. However, at the final hearing, the District was reluctant to say the Improvement District had violated any law or permit condition. The Improvement District did not challenge the enforcement action against it and, therefore, the District’s enforcement order became final. The Improvement District is required to address the accumulation of sediment in the Ibis Lakes, develop a nutrient source control plan, eliminate and reduce the use of herbicides containing copper sulfate, and reassess pumping schedules. There is no target nutrient limit specified in the District’s Orders for Corrective Action. The District’s enforcement action against the City seeks to require the City to increase secondary treatment and retention in Ibis Preserve, provide a plan to remove the exotic/invasive vegetation at the outfall, provide a vegetation monitoring plan, and develop source control measures for residential developments that discharge into Grassy Waters. The City challenged the enforcement action and it remains pending. Snail Kites The Everglades snail kite gets its name from its primary food, the apple snail. In the Everglades, snail kites also feed on an exotic island snail, which occurs there in about equal numbers as apple snails. There was no evidence presented that there are exotic island snails in Grassy Waters. Snail kite habitat is dependent on conditions conducive to apple snails, which are the open marsh and oligotrophic conditions where periphyton flourish. If a sufficient number of apple snails are present, snail kites will find suitable nesting nearby. Dense wetland vegetation is not good forage for snail kites because, even if apple snails are present, the apple snails will be difficult or impossible for the snail kites to see. Dr. Welch, who was the state snail kite conservation coordinator at the Florida Fish and Wildlife Conservation Commission and wrote the snail kite management plan for Florida, testified for the District, where he is now employed as a senior scientist. He said field surveys of snail kite nests in Grassy Waters indicate their numbers are relatively low compared to other areas where snail kites are found. There were only ten successful nests (eggs laid) observed from 2000 to 2016. The City’s Everglades expert, Dr. Lodge, speculated that the low nest counts could be due to difficulty in seeing the nests, but he was not familiar with the survey techniques used and, therefore, his opinion that the numbers could be materially underestimated is not credited. Snail kites nest throughout the Water Catchment Area, but primarily in the open marsh areas of the central and eastern portions of the Water Catchment Area. Over 90 percent of snail kite nests are more than a mile from the Project ROW. Dr. Lodge said there are four snail kite nests within 800 feet of the Project, but he was not more specific about their locations. Most nests are closer to Northlake Boulevard, State Road 710, and the Florida Turnpike. The major factor that adversely affects successful nesting by snail kites and production of offspring is predation, usually by raccoons and rat snakes. “Cold snaps” and drought are also factors. Impacts of The Proposed Project Water Quantity Impacts Water storage for the Project, which was going to be handled in the Ibis system under the 1989 Ibis permit, would be provided in the roadside swales. The Project is designed to retain water volumes greater than typically required for roadways. Stormwater would not flow out of the Project into the Ibis system except in unusually large storm events, in excess of six inches of rainfall. The City did not dispute the Project’s compliance with the applicable water quantity criteria in the District rules. Water Quality Impacts To address the City’s concerns about adverse impacts caused by the Ibis system, the Applicants expanded the roadside swales by ten feet and raised the outfall elevation by 0.05 feet. With these modifications, the Project would provide water quality treatment for its stormwater and no longer rely on the Ibis system for treatment. The swales would provide treatment in excess of the treatment required by District rules. Respondents contend that, when the treatment provided by the Ibis system is added, the total treatment provided for the Project stormwater is more than twice as much as required by District rules. The City, on the other hand, claims that no additional water quality treatment can be provided by the Ibis system because the Ibis Lakes are eutrophic. The preponderance of the evidence supports a finding that Project runoff to the Ibis system would receive additional water quality treatment in the Ibis system and in Ibis Preserve before flowing to Grassy Waters. The effect of the Project’s on-site treatment of its stormwater is that the amount of nutrients that would otherwise flow into the Ibis system from SR 7 would be reduced. Therefore, the effect of the Project is to reduce the nutrient load that the Improvement District was permitted to discharge to Ibis Preserve and Grassy Waters. The City did not dispute the Applicants’ evidence that the Project exceeds the District’s design criteria for water quality. The City focused instead on its contention that, despite its compliance with water quality design criteria, the Project would result in additional nutrient loading to Grassy Waters, which would cause additional adverse impacts to its flora and fauna. The Applicants and the City performed nutrient loading analyses even though such analyses are only required by the District when the receiving waters have been designated by the Department as “impaired” by nutrients or in the case of certain other specially designated waters. Grassy Waters does not have any of these special designations. The Applicants’ nutrient loading analysis concluded that the post-development loading of phosphorus and nitrogen from the Ibis system would be less than the pre-development condition, so there would be a net decrease in nutrients discharged into Grassy Waters. Petitioner’s expert witness, Dr. Harper, believes the Project would increase nutrient loading to Grassy Waters, even if stormwater from the Project did not carry additional nutrients, because the increased volume of water moving through the Ibis system would entrain more nutrients from sediments in the Ibis lakes. Dr. Harper believes the Project would also cause nutrient loading via groundwater seepage through the roadway swales into Grassy Waters. The preponderance of the evidence does not support his opinion that groundwater seepage would cause additional nutrient loading.3/ Dr. Harper believes another source of nutrient loading from the Project would be from surface flow down the roadway embankments. On the eastern embankment, this flow would enter the mitigation area 150 feet from Grassy Waters. Dr. Harper’s estimated total loading from all sources is not persuasive. The estimate gives a false sense of precision. It is based on a number of variable assumptions, some of which are not widely known or in use by experts in the field. In addition, Dr. Harper’s opinion did not appear to appropriately account for the modifications to the Project’s storage capacity. Dr. Harper’s estimated loading was not translated into physical effects in Grassy Waters. The Applicants’ estimate of total nutrient loading also gives a false sense of precision, but it is based on a well-known and widely used methodology. The City failed to prove that the Project would result in more nutrient loading to Grassy Waters than is currently contributed by the ROW. Because the Project would not rely on the Ibis system for stormwater treatment, the Project would reduce the loading that the Improvement District was permitted to discharge to Grassy Waters. To address potential vehicular spills into Grassy Waters, FDOT produced a Spill Response Plan. The swales would capture and contain any material spilled on the roadway or swale. The curb and gutter, a guardrail, gravity wall, and fence also provide protection against spills. The bridge over the M-Canal would use a 54-inch traffic barrier, which is higher than FDOT specifications for the design speed for the bridge. The City did not present evidence to show that the protective measures proposed by the Applicants are less than what is usually considered adequate under similar circumstances, or fails to meet a relevant safety standard. Wetland Impacts Direct Impacts The Project would directly impact 52.37 acres of wetlands and 7.86 acres of surface waters. The impacted wetlands are fresh water marsh, mixed shrubs, and hydric pine flatwoods. The surface waters affected consist of vegetated ditches and un- vegetated channels or canals. The impacted wetlands include 11.77 acres of freshwater marsh. The impacted surface waters are ditches. Most of these wetlands are disturbed and their functional values have been reduced. Secondary Impacts District rules require an applicant to account for the secondary impacts caused by a project that could adversely affect the functions of adjacent wetlands or other surface waters. The Applicant’s Handbook defines secondary impacts to include impacts on wetland functions, water quality, and endangered species, including impacts on areas needed by endangered species for foraging. Part of the Applicants’ assessment of secondary impacts of the Project was made by reviewing the effects of the Acreage Reliever Road on Pond Cypress Preserve, a 1,737-acre conservation area managed by the County that is immediately south of the proposed Project. The County has been monitoring the effect of the Acreage Reliever Road on hydrology, vegetation, and species compensation ever since the road was built. The County found no adverse secondary impacts caused by the road. The species that use the wetlands near the road, including wading birds, appear to be unaffected by the road. The scoring of secondary impacts for the Projects, using the Uniform Mitigation Assessment Methodology (“UMAM”), was conservative, meaning that assumptions were made at the high side of the potential range of impacts. This resulted in more mitigation being required. The Applicants claim the Project would “maintain a 300-foot buffer between the project’s construction boundary and [Grassy Waters].” This appears to be a misstatement. The Applicants’ combined ROW is only 320 feet wide. Going east from the limits of construction, it is 160 feet to Grassy Waters. The Project’s buffer is 160 feet wide. The District accounted for secondary impacts to wetland dependent species, including snail kites, from noise and lights that might discourage use of the area. The Project would provide a tree buffer that will reduce noise and light impacts to Grassy Waters. The roadway lighting plan is also intended to reduce light penetration into Grassy Waters. Most of the threatened and endangered bird species are tolerant of roadways for foraging and roosting, but not for nesting. Section 10.2.7 requires the Applicants to provide reasonable assurances that any future phase of a project or project-related activities will not result in adverse impacts to the functions of wetlands or water quality violations. The Applicants satisfied this requirement by releasing of FDOT ROW north and south of the Project. Cumulative Impacts An applicant must provide reasonable assurance that a regulated activity will not cause unacceptable cumulative impacts upon wetlands and other surface waters within the same drainage basin as the regulated activity for which a permit is sought. Some of the proposed mitigation for the Project is out- of-basin. If an applicant proposes to mitigate impacts in another drainage basin, District rules require consideration of factors such as “connectivity of waters, hydrology, habitat range of affected species, and water quality” to determine whether there are unacceptable cumulative impacts. The Project is located in the eastern Palm Beach County Basin, which has approximately 21,000 acres of wetlands. About 89 percent of the wetlands in the basin are publicly-owned conservation lands, which means their wetland functions will continue into the future. The cumulative impact analysis was conservative, meaning that the actual impacts are likely to be fewer. Petitioner contends that Respondents’ cumulative impact analysis did not account for the unique nature of the Grassy Waters ecosystem as the only remaining low nutrient oligotrophic wetland in the region. The preponderance of the evidence shows that the historical wetland types in the Project area were not all like the open marsh found in the central and eastern portion of Grassy Waters. Respondents accounted for the loss of open water marsh that would be caused by the Project. On-Site Mitigation There would be 52.4 acres of on-site mitigation within a 160-foot-wide strip of land along the eastern limits of proposed construction. This area of the ROW would be managed by removing or treating the exotic vegetation, such as Brazilian Pepper and Maleleuca. Removing the exotic vegetation seed source would prevent further spread of these nuisance species into Grassy Waters. Where native habitats have been altered with ditches and berms, the land would be graded to create a slope from the limits of construction eastward to the edge of the ROW. The eastern elevation would be similar to the adjacent marsh or hydric pine areas of Grassy Waters. Then, native vegetation would be planted. The habitats enhanced, restored, or created would include freshwater marsh, hydric pine flatwoods and mixed forested wetlands, including cypress. The planting of mixed, forested species would provide sound and light buffering for snail kites and other species in Grassy Waters. Two wildlife passages would be created underneath the Project with fencing designed to direct wildlife to use the wildlife passages. Slats would be placed in the roadway fencing to prevent small animals from going through the fence and onto the roadway. The on-site mitigation was scored using UMAM and determined to result in functional gain. The UMAM analysis was conservative, meaning that the actual functional gain is likely to be greater. The City did not contest the UMAM scoring. Off-site Mitigation FDOT is applying mitigation credits from 210 acres at the Pine Glades Natural Area (“Pine Glades”) to offset impacts to 15.7 acres of herbaceous marsh and 26.78 acres of forested wetland impacts. Pine Glades is a regional off-site mitigation area located in the Loxahatchee River Basin and is owned and operated by Palm Beach County. Pine Glades consists of a mix of wet prairie, depression marshes, hydric pine flatwoods, and mesic flatwoods. The restoration work in Pine Glades has already been completed. Pines Glades implements a detailed management plan that provides regional ecological value. Robbins testified that Pine Glades has similar habitats to Grassy Waters. Pine Glades has periphyton, apple snails, snail kites, wood storks, and sand hill cranes. Pine Glades has some areas with oligotrophic conditions. Additional off-site mitigation to offset 52 acres of wetland impacts caused by the Project would be provided at the DuPuis Reserve (“DuPuis”). DuPuis is a regional off-site mitigation area located between the L-8 Canal and the C-44 Canal in western Palm Beach and Martin Counties, and is owned and operated by the District. DuPuis would provide mitigation with 34.71 acres of herbaceous wetlands and 43.8 acres of forested wetlands. DuPuis is appropriate to offset the impacts associated with the Project because it provides similar habitats with similar values of functions for similar wildlife. DuPuis implements a detailed management plan that provides regional ecological value. The City argues that there is little similarity between the Grassy Waters ecosystem and Pine Glades or DuPuis, so the mitigation there cannot offset the unique assemblage of plants and animals that would be lost in Grassy Waters. It is unnecessary for Pine Glades and DuPuis to be dominated by open water marshes like Grassy Waters. It is only necessary that they have some of these areas to offset Project impacts to open water marsh. Proposed snail kite mitigation would provide 52.5 more acres of snail kite habitat than would be directly impacted by the Project. The mitigation for snail kites will be located in FDOT ROW adjacent to the Project, south of the M-Canal, and north of Northlake Blvd. Erwin expressed concern about fragmentation of the ecosystems that would be caused by the Project. The areas that would be affected by the Project have already been fragmented by berms, ditches, and fences. Grassy Waters is surrounded by berms, a canal, and highways. The Project would cause fragmentation, like all roads. However, the fragmentation was reduced where practicable, and the City did not show that the roadway would cause the loss of any significant “greenway” now used by wildlife. Snail Kite Impacts Section 10.2.2(a) requires an applicant to provide reasonable assurances that a proposed activity would not impact wetlands and other surface waters so as to reduce the abundance and diversity of listed species. Snail kites, wood storks, sandhill cranes, white ibises, and little blue herons are listed species that have been observed within the Project corridor. As explained in the Conclusions of Law, the UMAM process is designed to mitigate for wetland functional losses, not snail kite functional losses. However, the potential impact to any listed species warrants close attention to the issue of whether function-for-function wetland mitigation would be provided. There will be 11.5 acres of direct impacts to snail kite habitat within the footprint of the Project area. Dr. Welch believes secondary impacts to wetland functions associated with snail kites could extend 800 feet east of the ROW. Mitigation for snail kites would be located in the Rangeline corridor south of the M-Canal and north of Northlake Boulevard. Dr. Welch estimated there were about 64 acres of snail kite habitat in the Rangeline corridor similar to the 11.5 acres of habitat located in the Project footprint. Dr. Welch conceded that he has no evidence that snail kites currently use the Rangeline, but he believes the habitat is suitable and is appropriate mitigation. Petitioner claims there are studies of “similar birds” indicating that snail kites avoid highways due to noise. However, the studies were not of similar birds. More weight is given to Dr. Welch’s testimony that snail kites are not particularly sensitive to roadway noise. Dr. Welch stated that Pine Glades would likely have value for snail kites because it is near the Hungryland Wildlife Management Area, which has the same number of successful snail kite nests as Grassy Waters. The City contends that Pine Glades is too far away from Grassy Waters to mitigate Project impacts to snail kites. However, snail kites range long distances to forage; several hundred miles in a few days. Satellite telemetry of snail kites shows snail kites from Grassy Waters are using Pine Glades for feeding. Dr. Welch reviewed snail kite nesting data to determine whether roads deterred nesting and found that snail kites frequently nested within 500 feet of major roadways. Dr. Welch refuted the idea that Grassy Waters provided snail kite refuge during drought conditions, because Grassy Waters is also subject to drought conditions that adversely affect snail kites. There are conditions in the permit to limit potential impacts to snail kites during construction of the Project. If snail kite nesting is observed within 1,640 feet of construction, all Project construction must cease. Thereafter, monitoring of the nest and notification of the U.S. Fish and Wildlife Service is required. Construction cannot resume until that nest has been considered finished. FDOT would place a conservation easement over 82.6 acres in the FDOT ROW between Okeechobee Boulevard and the M-Canal, south of the Project area that is the subject of this proceeding. The conservation easement would maintain connectivity between the Pond Cypress Natural Area and Grassy Waters and ensure that no future southern extension of the roadway will be constructed. A conservation easement would be placed on the FDOT ROW between Northlake Boulevard and SR 710, an area of approximately 43.5 acres. Preserving this area protects a hydrologic connection between Loxahatchee Slough Natural Area and Grassy Waters. It also ensures no future northern extension of the roadway. A conservation easement would be placed on a portion of the FDOT ROW between SR 710 and Jupiter Farms, an area of 44.5 acres. This section of ROW is in the Loxahatchee Slough and the release of the ROW would be a direct benefit to Loxahatchee Slough. The preservation of these areas would benefit fishing and recreational values in the Pond Cypress Natural Area, Grassy Waters, and the Loxahatchee Slough Natural Area. These conservation areas did not receive UMAM credits to reduce the wetland acreage needed to offset wetland functional losses, but they were included in the mitigation credit for benefits to snail kites and other wildlife. Summary The preponderance of the evidence established that the proposed mitigation offsets the impacts to wetlands and other surface waters that would be caused by the Project and exceeds the requirements of District rules. Practicable Design Modifications District rules require an applicant to consider alternatives that would avoid or reduce wetland impacts. The City claims the Applicants failed to comply with this rule because FDOT selected a roadway corridor that was expected to have greater environmental impacts than some of the other three corridors that were being considered. As explained in the Conclusions of Law, this argument is misplaced. The District’s review of the Applicants’ measures to avoid or minimize wetland impacts was appropriately confined to Corridor 3, the corridor selected by FDOT where the Project is proposed. The Applicants reduced and eliminated impacts of the Project in several ways. For example, the footprint of the road was narrowed from six lanes to four lanes, wildlife underpasses were provided, retaining walls were used to narrow stormwater features, the median was reduced in size, and the design speed limit was reduced for the bridge at the M-Canal crossing. Under two circumstances, District rules allow an applicant to avoid the requirement to implement practicable design modifications to reduce or eliminate wetland impacts, which are referred to as the “opt-out” provisions. Section 10.2.1.2, Volume I, of the Applicant’s Handbook (“A.H.”) provides: The ecological value of the functions provided by the area of wetland or other surface water to be adversely affected is low, based on a site specific analysis using the factors in section 10.2.2.3, below, and the proposed mitigation will provide greater long term ecological value than the area of wetland or other surface water to be adversely affected, or The applicant proposes mitigation that implements all or part of a plan that provides regional ecological value and that provides greater long term ecological value than the area of wetland or other surface water to be adversely affected. The District determined that the Applicants meet both tests. The preponderance of the evidence supports the District’s determination. The ecological value of the functions provided by the affected wetlands and surface is low and the proposed mitigation would provide greater long-term ecological value than the area being impacted. Pine Glades and DuPuis are part of a plan to restore the ecological value of Northern Palm Beach County and create an “ocean to lake” system of preserves and natural areas.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the South Florida Water Management District enter a final order approving Permit Number 50-05422-P on the terms and conditions set forth in the amended Staff Report, and the complete application for the Permit. DONE AND ENTERED this 31st day of March, 2017, in Tallahassee, Leon County, Florida. S BRAM D. E. CANTER 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 31st day of March, 2017.
The Issue Has the applicant, Grove Isle, Ltd. provided reasonable assurances and affirmatively demonstrated that its proposed marina is clearly in the public interest and will not lower the existing ambient water quality of Biscayne Bay, a designated outstanding Florida water?
Findings Of Fact On March 13, 1978 an application was made to DER for a water quality control permit to construct a wet-slip marina on the west side of Grove Isle, formerly known as Fair Isle and Sailboat Key. The original plan for the marina, which was initially objected to by the Department of Environmental Regulation, was modified to protect a bed of seagrasses extending about 30 feet wide in a band along the west side of the island. While the plans were being modified and consultations with other government permitting agencies were in progress, the application was "deactivated" from September 27, 1978 until March 30, 1979. As a result of its investigation and review, DER on October 23, 1979, issued a letter of intent to grant the permit to Grove Isle, Inc. The permit if granted, would allow the applicant to construct six concrete fixed piers, five "T" shaped, one "L" shaped, with a boat docking capacity of 90 pleasure boats. The piers will extend a maximum of 165 feet offshore from an existing concrete bulkhead. The width of the piers will be 8 feet from the bulkhead to a point 41 feet offshore, and then increased to a width of 10 feet. A sewage pump-out facility is also proposed. Attached to that letter of intent were the following conditions: Adequate control shall be taken during the construction so that turbidity levels outside a 50 foot radius of the work area do not exceed 50 J.C.U's, as per Section 24-11, of the Metropolitan Dade County Code. During construction, turbidity samples shall be collected at a mid-depth twice daily at a point 50 feet up stream and at a point 50 feet down stream from the work area. The contractor shall arrange to have turbidity sample results reported to him within one hour of collection. Turbidity monitoring reports shall be submitted weekly to DER and to the Metropolitan Dade County Environmental Resources Management (MDCERM) If turbidity exceeds 50 J.C.U's beyond a 50 foot radius of the work area, turbidity curtains shall be placed around the work area and MDCERM notified immediately. Turbidity samples shall be collected according to condition two above, no later than one hour after the installation of the turbidity curtain. It turbidity levels do not drop below 50 J.C.U's within one hour of installation of the curtain all construction shall be halted. Construction shall not be resumed until the contractor has received authorization from MDCERM. No live-a-board vessels (permanent or transient) shall be docked at this facility unless direct sewage pump-out connections are provided at each live-a-board slip. A permanent pump-out station shall be installed and maintained for further removal of sewage and waste from the vessels using this facility. Compliance with this requirement will entail the applicant's contacting the Plan Review Section of MDCERM for details concerning connection to an approved disposal system. Boat traffic in the shallow 30 foot wide dense seagrass area which parallels the shoreline shall be restricted by the placement of wood piles on 6 foot centers along the entire shoreline facing the marina. The channel from this marina to deeper water in Biscayne Bay shall be marked to prevent boats from straying into adjacent shallow areas. This will prevent habitat destruction. A chemical monitoring program shall be established to determine the effect of this marina on the water quality of this section of Biscayne Bay. Surface and mid-depth samples shall be collected at three points in the project area and at one background station. Parameters shall include, but not be limited to dissolved oxygen, pH, salinity, temperature, total coliform and fecal coliform and fecal streptococci bacteria, oil and grease, biochemical oxygen demand, and turbidity. Background samples shall be collected prior to construction and quarterly for a minimum of one year after 90 percent occupancy of the marina. In addition to the chemical monitoring program, a benthic community monitoring program is to be established. Samples of the benthic seagrass community within and adjacent to the project area are to be collected prior to construction and quarterly for a minimum of one year after 90 percent occupancy of the marina. Should either monitoring program detect dissimilar changes at its monitoring and control stations, DER and MDCERM shall be notified of the results. The monitoring programs shall be reviewed and approved by DER and MDCERM prior to implementation. Monitoring reports shall be submitted to DER and MDCERM and the United States Corps of Engineers on regular basis. Warning signs shall be posted in the marina area to advise marina users that manatees frequent the area and caution should be taken to avoid collisions with them. With the foregoing conditions imposed, the Department concluded that no significant immediate or long term negative biological impact is anticipated and state water quality standards should not be violated as a result of the proposed construction. Grove Isle, Inc., has agreed to comply with all the conditions established by the DER letter of intent to grant the permit. Grove Isle is a spoil bank in Biscayne Bay located approximately 700 feet east of the Florida mainland. It is linked to the mainland by a two-lane concrete bridge. The island is currently under development for a 510 unit condominium community with associated facilities such as a restaurant, hotel, and the proposed marina. The island is surrounded by a concrete bulkhead constructed many years ago. No changes in the bulkhead line are proposed. Grove Isle, Inc., proposes constructing the marina on concrete piles driven into the Bay bottom from a shallow draft barge. During construction there would be some turbidity caused from the disruption of the Bay sediment. This can however be adequately controlled by the use of turbidity curtains during construction. The construction will not require any dredging or filling. In the immediate marina site the most significant biota are a 30 foot wide bed of seagrasses. There are no other important biota because at one time the area was extensively dredged to create the island. There are no oyster or clam beds nearby. While lobsters may have once frequented the area, they too are no longer present. The water depth in the area ranges from 1 foot near the island bulkhead to 12 feet offshore to the west of the island. This particular seagrass bed consist primarily of turtle grass (thalassia, testudinum) with some Cuban Shoal Weed (Halodule, Wrightii). Protection for these grasses will be provided by a buffer zone between the island and the boat slips. The grassy zone will be bordered by a row of dolphin piles to exclude boat traffic. Because the grass requires sunlight for photosynthesis and therefore life, the six piers will have grated walkways where they pass over the grass. This will allow sunlight to reach below. In addition to the small grass bed on the west of the island there are extensive beds to the northeast, east and south of the island that extend several hundred yards from the island in water depths of three to ten feet. If boat traffic in the vicinity is markedly increased due to the existence of the marina, it is conceivable that the number of propeller scars in these shallow beds could increase. At the present time the beds are already traversed by boats, some of which are owned by Petitioner's members. There are already for example, approximately 50 crafts which operate from the nearby mainland or from Pelican Canal directly to the north of the island. Propeller scars take up to fifteen years to heal yet the number of scars in the Grove Isle area is insignificant and even a tripling of them from an additional 90 boats would still be de minimus. Potential damage to the seagrasses on the north side of the island will be minimized by the planned installation of navigation markers by Grove Isle. These markers will channel boats into water of a navigable depth and lessen the number of groundings and near groundings which cause the scarring. There is evidence that pleasure boats by their very existence and operation in the water are potential pollution sources. For instance, various maintenance chemicals such as anti-fouling bottom paint and wood cleaner have the ability, if used in sufficient quantity, to harm marine life. The fueling of engines and sewage discharge from boats are additional pollution sources. There was however, no showing that the location of up to 90 pleasure and sport fishing craft at the proposed marina site would in any way cause a degradation of water quality below the acceptable standards for Class III waters. At the present time, the marina site has adequate flushing to disburse those pollutants which may be generated by the marina operations. While a hydrographic survey was not requested by DER or provided by Grove Isle at the time the permit application was made, the testimony of Dr. Echternacht at the time of the Hearing provided adequate assurances respecting the hydrographic characteristics of the proposed site. The proposed marina will have no fueling or maintenance facilities. No live-a-board craft will be allowed at the marina. Both Mr. Wm. Cleare Filer and David A. Doheny live close to Grove Isle. Mr. Doheny's residence is on the mainland facing the proposed marina site and Mr. Filer's house is on Pelican Canal. They use the waters of Biscayne Bay around Grove Isle for recreation. If the quality of the water in the proposed marina site were lessened their substantial interest would be affected. Biscayne Bay is classified as a Class III water and is in the Biscayne Bay Aquatic Preserve. Careful considerations has been given to each of the proposed findings of fact submitted by the parties. To the extent that they are not contained in this Order, they are rejected as being either not supported by competent evidence or as immaterial and irrelevant to the issues determined here.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That a Final Order be entered by the State of Florida, Department of Environmental Regulation, determining that the requested water quality control permit and certification be issued subject to the conditions contained in the Notice of Intent to Issue Permit and that the Relief requested by the Petitioners be denied and their Petitions be dismissed. DONE and ENTERED this 22nd day of February, 1980, in Tallahassee, Florida. MICHAEL P. DODSON Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: David A. Doheny, Esquire 1111 South Bayshore Drive Miami, Florida 33131 Wm. Cleare Filer 3095 Northwest 7th Street Miami, Florida 33125 Joel Jaffer 2479 Southwest 13th Street Miami, Florida 33145 Randall E. Denker, Esquire Assistant General Counsel Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32301 Larry S. Stewart, Esquire Frates, Floyd, Pearson, Stewart, Richmond & Greer One Biscayne Tower 25th Floor Miami, Florida 33131 ================================================================= AGENCY FINAL ORDER ================================================================= STATE OF FLORIDA DEPARTMENT OF ENVIRONMENTAL REGULATION BAYSHORE HOMEOWNERS ASSOCIATION, INC., et al., Petitioner, vs. CASE NO. 79-2186 79-2324 STATE OF FLORIDA, 79-2354 DEPARTMENT OF ENVIRONMENTAL REGULATION, and GROVE ISLE, LIMITED, Respondent. /
Findings Of Fact The Petitioner is the owner of five acres of undeveloped real property in Henderson Creek Basin, Naples, Collier County, Florida. The property is dominated at the tree canopy level by medium-sized cypress. The mid-story plant association is made up of a varying mix of wax myrtle, dahoon holly, seedling cypress, and a lesser amount of slash pine. Hypercium, stillingia, poverty grass, and xyris are the major components of the ground cover. In the vicinity of the proposed homesite, the ordinary mean water depth averages 2-4 inches, as indicated by the water marks on the stems of cypress, stillingia, and cypress knees. Based upon the dominant vegetation, the project site is within the jurisdiction of the Respondent for the regulatory purposes set forth by law. The Petitioner intends to build a house on the property for his personal use. In order to construct the residence, the Petitioner applied to the Respondent for a dredge an fill permit. In the application,, the Petitioner seeks a permit which would allow him to place 1,200 cubic yards of sand fill over a .17 acre area of the submerged land. The proposed location for the housepad, septic tank and drainfield is the center of the five acre parcel. This is the predominant area in which the Petitioner seeks to place the fill. A large portion of this part of the property is low and consists of wetlands. The project, as it is designed in the permit application, does not provide the Respondent with reasonable assurance that the applicable water quality standards for the geographical area will continue to be met. In fact, the proposal demonstrates that a violation of the standards will occur. The Petitioner recently cleared 14,340 square feet of the wetlands in the proposed homesite area. The cypress trees which ware removed acted as a pollution filtration system and aided in the cleansing of the standing waters on site. These waters eventually percolate down to the aquifer to become an important source of fresh water for the state. Without the trees, the water will lose an important aid in the natural purification process. In addition to the adverse impact on water quality, the project will interrupt the natural water flow and filtration which has historically occurred when the water located in the low wetland area on the property has overflowed and eventually run into Henderson Creek. The Respondent is required to consider this natural condition in its determination as to whether or not a permit should be issued. The Respondent has indicated that certain changes should be made to the project in order to make it eligible to receive a permit. The Respondent suggested that the Petitioner relocate the fill area for the house pad eighty- five feet to the west of the proposed site. The septic tank and drainfield should be moved one hundred and ten feet to the west. The drive should be reduced to a single lane which leads directly to the housepad. In addition, three culverts should be placed under the drive. The purpose of these modifications would be to minimize the impact of the project on the wetland site. The movement of the project away from the cypress area would minimize the damage to water quality that would occur if the septic system were placed in the wetlands. If the design for the lane and driveway were modified, the harm to the natural sheet flow of the water through the area on its route to the creek would be greatly reduced. Another suggested modification was to remove exotic vegetation which has been planted or which has begun to dominate in some areas because of the clearing of the property which took place before and after the Petitioner purchased the property. The Respondent also seeks a construction plan from the Petitioner which demonstrates that the fill areas will be adequately stabilized and that turbidity will be controlled during construction. The final modification suggested by the Respondent was for the Petitioner to place a deed restriction on the property which would protect the planting areas and the remainder of the wetlands on the site. The Petitioner's expert, Gary L. Beardsley, has recommended that the proposed circular entrance driveway be eliminated and that a single and straightened lane be substituted its place. He further recommended that one 12" diameter culvert should be installed under the lane near the housepad in order to facilitate or equalize any sheet flow on the downstream side. This recommendation is made to substitute for the agency's proposal that three culverts be placed under the straightened lane. In addition, the Petitioner's expert recommended that the septic drainfield be moved 30 feet westward to reduce the fill slope requirements by abutting the house and septic fill pads. The Petitioner should also be required to replant 5,265 square feet of wetland area that he cleared on site with the approval of the Collier Natural Resource Management Department, but without the approval of the Respondent. The Petitioner has not agreed to any of the proposed modifications, including those proposed by his own expert. The Respondent's request for a deed restriction is not necessary to the agency's regulatory function. There was no reason for the request presented at hearing by the agency.
The Issue The issue in this proceeding is whether four agency memoranda describing policy on mitigation for dredge and fill projects are unpromulgated rules and were relied on by the agency in violation of Section 120.535(1), F.S. During the hearing, and afterwards in writing, Petitioner sought leave to amend its pleadings to incorporate other policies allegedly relied on by the agency in the process of the dredge and fill application review. That request was denied in an order entered on August 23, 1993. Those policies are addressed in the recommended order in DOAH #93-3367.
Findings Of Fact Petitioner, SIP Properties Limited Partnership (SIP) is the record owner of the parcel at issue, approximately thirty-five (35) acres located in the southwest area of Orlando, Orange County, Florida. SIP proposes to prepare the site for commercial and office use by developing the site into separate parcels or lots with proposed uses such as restaurant or fast food establishments, offices and retail stores. Development of the site requires the construction of compensating storage ponds that will act as retention/detention ponds and filling the site. The proposed improvements will result in the filling of 7.47 acres and dredging of 0.42 acres of wetlands claimed to be jurisdictional by DEP. Based on statements made to SIP by staff regarding department "mitigation policies" applicable to SIP's dredge and fill permit application, SIP believed that department policy memoranda were applied during permit review. SIP attached these various memoranda regarding mitigation to its Petition for Administrative Determination of Violation of Rulemaking Requirement dated May 27, 1993, and identified these memoranda as nonrule policies utilized by the department. The department retains on file and makes available for use by its staff the identified memoranda. However, in this case the department did not rely on or apply the mitigation guidelines contained in the memoranda in SIP's Petition. Instead, it applied Part III of Chapter 17-3120, F.A.C. In Part III of Chapter 17-312, F.A.C., the agency has adopted rules addressing the mitigation issues contained in the memoranda in SIP's Petition. For example, the agency has adopted guidelines in rule 17-312.340(2), F.A.C., for applying ratios when mitigation involves creation of state waters, as in this case. The department presently relies on these rules when reviewing mitigation plans, and does not rely on the policy memos referenced in the petition. Determining the mitigation needed to successfully offset impacts from a project is difficult and depends on many factors, including hydrology, soils, planting methods, and monitoring plans. Determining what is needed to reasonably assure successful mitigation must be done on a case by case basis. Not enough is known about the subject to apply any particular set of directions and expect success. DEP is presently in the process of developing rules to further address most aspects of mitigation.
Recommendation Based on the foregoing, it is, hereby, RECOMMENDED: That the Department of Environmental Protection issue its Final Order granting SIP's dredge and fill permit #48-2086169, with the mitigation proposed by the applicant, and establishing an expiration date and monitoring and evaluation plan for determining success of the mitigation as provided in rules 17-312.320 and 17-312.350, F.A.C. DONE AND RECOMMENDED this 11th day of January, 1994, in Tallahassee, Leon County, Florida. MARY CLARK 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 11th day of January, 1994. APPENDIX The following constitute specific rulings on the findings of fact proposed by the parties. Petitioner's Proposed Findings 1.-3. Adopted in paragraph 2. 4.-6. Adopted in paragraph 7. 7.-8. Rejected as unnecessary. 9. Adopted in paragraph 8. 10.-11. Adopted in substance in paragraph 9. 12. Adopted in substance in paragraph 10. 13.-16. Rejected as unnecessary Adopted in paragraphs 11 and 12. Rejected as unnecessary. 19.-21. Adopted in substance in paragraph 13. 22.-23. Adopted in substance in paragraph 14. 24.-25. Adopted in paragraph 15. Adopted in paragraph 16. Rejected as contrary to the weight of evidence. Adopted in paragraph 16. Substantially rejected as contrary to the greater weight of evidence. Adopted in part in paragraph 17, otherwise rejected as immaterial. Rejected as immaterial. Adopted in paragraph 18. Rejected as immaterial. The agency witnesses established that the vegetation along the canal evidences the physical connection and there is evidence that water flows from the site into the canal. Rejected as unsubstantiated by reliable competent evidence. Adopted in substance in paragraph 22. 36.-40. Rejected as unsupported by reliable competent evidence. Rejected as immaterial. Rejected as unsupported by the weight of evidence. Rejected as unnecessary, and as to characterization of merely "relic" wetlands, unsupported by the weight of evidence. Rejected (the conclusion of jurisdictional limit) as unsupported by the greater weight of evidence. 45.-53. Rejected as immaterial or unnecessary. 54.-56. Adopted in paragraphs 33 and 34. 57. Adopted, as to the limited function, in paragraphs 22 and 23. 58. Adopted in paragraph 26. 59.-60. Adopted in paragraph 23. 61. Rejected, as to the absolute conclusion of "no function", as contrary to the greater weight of evidence. 62. Adopted in paragraph 25. 63.-64. Adopted in paragraph 26. Rejected as unnecessary. Adopted in paragraph 30. Adopted in paragraph 34. Adopted in substance in paragraph 31. Adopted in substance in paragraphs 30 and 34. Adopted in paragraph 31. 71.-73. Adopted in paragraph 33. 74.-77. Rejected as unnecessary. 78.-79. Adopted in paragraph 31. 80.-81. Adopted in paragraph 35. Rejected as unnecessary. Adopted in paragraph 33. 84.-90. Rejected as unnecessary. Respondent's Proposed Findings Adopted in paragraph 15. 2.-3. Adopted in paragraph 16. 4.-5. Adopted in paragraph 17. Adopted in paragraph 15. Adopted in paragraph 17. Adopted in paragraph 16. Rejected as unnecessary and as to "binding" effect, unsupported by the weight of evidence. Adopted in paragraph 19. 11.-15. Adopted in substance in paragraph 21. 16. Rejected as contrary to the weight of evidence and inconsistent with proposed findings #18 with regard to the constant level in the canal. 17.-18. Adopted in substance in paragraphs 21 and 23. 19.-21. Adopted in paragraphs 19 and 20. 22.-26. Adopted in summary in paragraph 21. Adopted in paragraph 27. Adopted in substance in paragraphs 1 and 2. Adopted in paragraph 2. Adopted in part in paragraph 16. That the forests are "healthy and viable" is rejected as unsupported by the weight of evidence. Adopted in substance in paragraph 17. Adopted in part in paragraph 25; otherwise rejected as contrary to the weight of evidence. 33.-34. Adopted in part in paragraph 27; otherwise rejected as contrary to the weight of evidence. 35.-37. Rejected as contrary to the weight of evidence. 38.-43. Rejected as unnecessary. 44. Rejected as contrary to the weight of evidence. The stormwater management plan and mitigation will restore the stormwater treatment functions. 45.-47. Adopted in substance in paragraph 30. Rejected as substantially contrary to the greater weight of evidence (as to the negative impact). Adopted in part, as to water quality problems generally, but rejected as to the ultimate conclusion, as contrary to the greater weight of evidence. Rejected as unnecessary. 51.-52. Adopted in summary in paragraph 31. 53.-54. Rejected as cumulative and unnecessary. 55. Rejected as contrary to the greater weight of evidence. COPIES FURNISHED: Virginia B. Wetherell, Secretary Department of Environmental Protection Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32399-2400 Kenneth Plante, General Counsel Department of Environmental Protection Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32399-2400 Ronald M. Schirtzer, Esquire Martha H. Formella, Esquire R. Duke Woodson, Esquire FOLEY & LARDNER 111 North Orange Avenue, Suite 1800 Orlando, Florida 32801 Douglas H. MacLaughlin, Esquire John L. Chaves, Esquire Rosanne G. Capeless, Certified Legal Intern Department of Environmental Protection Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32399-2400
