Findings Of Fact In April, 1976, Petitioner City of Miami, Florida (hereinafter "City"), filed application with Respondent Department of Environmental Regulation (hereinafter DER), for a construction permit and water quality certification to fill submerged land which it owned in Biscayne Bay adjacent to the City's Bayfront Park. The proposed project, as finally developed, was described by DER as follows: The project would involve the filling of 2.06 acres of submerged land, owned by the City of Miami, in Biscayne Bay. A dock, varying in width from 15 to 45 feet, would be constructed adjacent to the bulkhead to provide temporary berthing space for 5 to 6 boats. Riprap would be placed waterward at the bulkhead and an artificial reef constructed next to the bulkhead/riprap. The stated purpose of the project by Petitioner in its letter of April 2, 1976, transmitting the application, was for the "redevelopment and eastward expansion of the present Bayfront Park." The application enclosed approval of the proposed project by the City Commission of the City of Miami and a biological assessment of the proposed construction by the Department of Natural Resources. (Exhibit 15) The project assessment by the Department of Natural Resources was set forth in a letter to the City, dated April 16, 1975, and was predicted upon an original proposal to fill some 6 acres of submerged land. The agency stated that the sparsely vegetated intertidal zone of the proposed fill area was of limited biological significance, but that filling open-water area would permanently remove it from the Biscayne Bay Aquatic Preserve, and that the cumulative effect of many such fill projects could have massive adverse biological effects on the preserve. It concluded that restoration of productive intertidal communities should be encouraged by the addition of sloping riprap along the face of the existing seawall. The Florida Game and Fresh Water Fish Commission contributed its views to the DER by a letter, dated July 14, 1976. It agreed that the area had limited biological productivity, but that filling it would result in permanent removal of open-water habitat from the preserve and set a precedent for similar projects. It therefore recommended that a permit not be issued. The Director of the Metropolitan Dade County Environmental Resources Management, by letter of July 12, 1978, also provided an evaluation of the application to DER. He and his staff found that the proposed construction represented the least amount of filling necessary to eliminate an existing shoreline configuration which served to trap a variety of floating debris, and would eliminate an aesthetically undesirable condition adjacent to the park by improving water circulation. It also stated that the low biological productivity of the area was due to the lack of a suitable habitat for the establishment of a viable benthic community, and that the proposed riprap and artificial reef should provide such a habitat and thus increase the productivity of the area. He stated that the proposed shoreline treatment would allow greater access to the Bay by the non-boating public and additional access to the park by boaters using the proposed dock area. Accordingly, that agency recommended approval of the permit subject to certain conditions as to the method of construction and the prevention of turbidity during the construction process. A further report of the Director, dated July 25, 1978, stated that an underwater survey of the proposed area showed a low diversity of benthic invertebrates and concluded that filling the area would not destroy a viable productive community, but would cover a sparsely populated, unproductive, barren mud bottom. (Exhibits 4-5, 12-13). The DER staff evaluation of the project, as contained in a report of Doctor Thomas L. Hart, agreed that the sparsely vegetated area which supported only small populations of various marine life would improve by the placement of riprap and an artificial reef by providing a habitat for a variety of invertebrates and protective cover for small fish. This report further found that filling the cove area would not destroy a productive marine community or produce a significant adverse water quality condition if proper techniques were used in the fill operation. Dr. Hart therefore concluded that the project met the requirements for a permit under Chapters 253 and 403, Florida Statutes. However, he concluded that the project would not qualify for an exemption under Section 258.165, Florida Statutes, the Biscayne Bay Aquatic Preserve Act. He found that placement of riprap for seawalls was required under that Act and any benefits derived from the construction of the artificial reef could not be used to justify filling the submerged land. He also stated in his report that elimination of the cove area to prevent the collection of debris was unnecessary since alternative means of removing the unsightly material could be developed. Dr. Hart therefore recommended that the permit application be denied. This recommendation was adopted by the DER in its Intent to Deny and Proposed Order of Denial issued to the City on October 27, 1978, which predicated its proposed denial on the inability of the City to demonstrate compliance with Section 258.165, Florida Statutes. (Exhibits 11, 17). The project will eliminate a cove created by the construction of Miamarina which is adjacent to the project area. The cove is bounded on its northern side by a 300 foot riprap revetment, on the western side by vertical sheet steel bulkhead fronting Bayfront Park, and on the eastern side by Biscayne Bay. A 1977 study of hydrodynamic factors affecting the area by an expert in oceanography and tide hydraulics showed that the cove was a "dead pocket" that, together with the adjacent riprap, collected floating debris in an eddy from lack of water circulation. He found that the debris, such as paper cups, old tires, and dead animals, and the like, was moved to the cove area by wind and that there was insufficient tidal action to flush it out of the area. He concluded that by redefining the shore to provide a straight line and extension of the outer bulkhead of the Miamarina to where it would meet the existing Bayfront Park bulkhead would provide maximum current velocity to move debris along the new bulkhead and eventually carry it into the Atlantic Ocean. He is of the opinion that any area of fill less than the 2.6 acres created by such a bulkhead would not sufficiently eliminate the existing problem of water circulation. Biological studies of the site by experts in the field show that it is a low area of biological productivity which is primarily attributable to turbidity of the waters and the silt-clay bottom which is anaerobic and receives stagnant material, thus providing degraded water quality and a poor habitat for the growth of plant and animal life. The proposed placement of riprap and the outside artificial reef below the low tide mark will provide places for attachment of marine organisms and an excellent refuge for a greatly increased variety of marine species. The marine organisms presently found in the area are much sparser than those in a normal area of the Bay. They are found mainly in the dredged mud bottom which is not considered to be a natural shoreline area. The collected debris at the site presents a serious maintenance problem for the City and engenders complaints from the public. Although greater than normal efforts are made to keep the area free of such litter, it is a continuing maintenance problem and detracts from the aesthetic value of the park and Biscayne Bay. (Testimony of Michel, Morrisey, Voss, Howard, Exhibits 1-3, 7-10, 14, 16). The proposed project is part of a comprehensive plan to enlarge and restore Bayfront Park to integrate its facilities in the environment, improve the appearance of the area, and increase use of the Bay. It is planned that an amphitheater, restaurant, and promenade will be constructed at the filled site sometime in the future. (Testimony of Ambruster) DER staff personnel who testified at the hearing agreed with the City's experts that the project site is not a natural condition and that conditions there are not conducive to the support of a large benthic population. They also agreed that the proposed construction has the potential for increasing biological productivity of the area. However, they were of the opinion that the project was unnecessary, would result in a loss of a portion of the Bay, and therefore was contrary to the intent of the Biscayne Bay Aquatic Preserve Act. (Testimony of Jones, McWilliams, Hart)
Recommendation That the application of the City of Miami, Florida for the requested permit be approved, subject to standard and customary conditions attached to the issuance of such a permit. DONE AND ORDERED in Tallahassee, Leon County, Florida, this day of 14th day of August, 1979. THOMAS C. OLDHAM Hearing Officer Division of Administrative Hearings 101 Collins Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: Randall E. Denker, Esq. Assistant General Counsel Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, FL 32301 G. Miriam Maer, Esq. Assistant City Attorney City of Miami 174 East Flagleer Street Miami, FL 33131 Jacob Varn, Secretary Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, FL 32301 ================================================================= AGENCY FINAL ORDER ================================================================= STATE OF FLORIDA DEPARTMENT OF ENVIRONMENTAL REGULATION CITY OF MIAMI, FLORIDA, Petitioner, vs. CASE NO. 78-2183 STATE OF FLORIDA, DEPARTMENT OF ENVIRONMENTAL REGULATION, ET AL., Respondent. / BY THE DEPARTMENT:
Findings Of Fact The Applicant/Respondents, Melvin and Mary Thayer have applied to the Department of Environmental Regulation (Department) for a "dredge and fill permit" seeking authorization to remove an existing 32-foot wooden fence and install in its place a chain-link fence, which as originally applied for would not extend more than 32 feet waterward from the 64-foot mean sea level elevation of Alligator Lake as marked by the waterward end of the existing wooden fence. The fence proposed would be five feet high and would possess a gate at its landward end which would permit pedestrian passage in both directions around the near-shore area of the lake. The project site is located approximately 400 feet south of U.S. 441-192 and adjacent to Alligator Lake, lying one mile west from Bay Lake within Section 10, Township 26 South, Range 31 East in Osceola County, Florida. As clarified and amended prior to hearing, the application now requests the permit to authorize, instead, a 26-foot fence extending that distance waterward from the 64-foot mean sea level elevation. The Department has permitting jurisdiction under Chapters 253 and 403, Florida Statutes as well as Chapter 17-4, Florida Administrative Code. There is no dispute that the Department has jurisdiction of the permitting of the subject fence inasmuch as the fence would be constructed waterward of the 64-foot mean sea level elevation or the "high pool" level of Alligator Lake in Class III waters of the state. Additionally, the area of the project waterward of the 64- foot mean sea level elevation lies on sovereign lands of the State of Florida under the jurisdiction of the Department of Natural Resources. That Department, as yet, has not issued a permit for use of sovereign land for the intended purpose as envisioned by Section 253.77, Florida Statutes. Ed Edmunson was tendered by both Respondents as an expert witness and was accepted as to his expertise in biological assessment of dredge and fill construction projects. It was thus established that the construction and installation of the fence and removal of the existing fence would cause no Class III water quality violations. Additionally, it was established that no navigational impediment would result from the fence as presently proposed which only involves a 26-foot fence extending from the 64-foot mean sea level elevation waterward in a perpendicular direction from the shore and near-shore of Alligator Lake. Parenthetically it should be noted that the original proposal involved extending the fence 32-feet waterward and then installing a right angle section parallel to the shoreline for an indeterminate distance. The right angle portion of the fence has been deleted from the permit application and the portion perpendicular to the shoreline has been amended from 32 feet down to 26 feet from the 64-foot mean sea level elevation. In that connection, it was established by witness Walter, accepted as an expert in the field of engineering, that on January 7, 1985, the water line of Alligator Lake was at 62.4 feet mean sea level elevation and the end of the existing 32-foot wooden fence was 16 feet from the then existing waterline of the lake. If the water in the lake was at the 64 feet mean sea level elevation or "high pool" stage, which has occurred on the average of once every three years, the water at the end of the fence would still be only .9 feet in depth at the waterward extreme end of the proposed 26-foot fence. Indeed, it was established with- out contradiction by the Applicant, Melvin Thayer, that in the 17 or 18 years he has observed the project site, that only "seven or eight inches of water is the most depth he has seen at the end of the fence." Thus, the fence as proposed to be installed, will pose no impediment or hazard to the navigation of fishing boats, skiing boats or other craft, and, in that regard, a dock in close proximity to the site of the proposed fence extends approximately 90 feet waterward at the present time. In view of the Petitioner's other objection to the fence concerning their feared loss of access to walk around the near-shore area of the lake to visit friends and the like, the permit applicants have agreed to install a gate for public access anywhere specified by the Department along the extent of the proposed fence. The testimony of Petitioner's witnesses, including a representative of the Game and Fresh Water Fish Commission, consists largely of objections to the precedent of permitting a private fence to be constructed in the waters of the state and on state water bodies, but no impediment to navigation has been established especially since the neighboring dock and numerous other docks around the shoreline of the lake extend waterward much farther than will the proposed fence. No degradation to water quality has been established to result from the proposed project. The fence has not been shown to be contrary to the public interest since it will not interfere with wildlife habitat or natural resources, nor impede navigation in any way, and was shown not to impede any public use of the lake or the near-shore area of the lake, in view of the access gate to be provided in the fence. In short, reasonable assurances have been provided that all permitting criteria within the Department's jurisdiction at issue in this proceeding will be complied with, although a permit from the Department of Natural Resources authorizing use of the state lands involved has not been issued as yet.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record and the pleadings and arguments of the parties, it is, therefore RECOMMENDED: That the application of Melvin and Mary Thayer for authority to remove an existing fence and to install a fence extending 26 feet waterward of the 64-foot mean sea level elevation of Alligator Lake with an attendant public access gate installed therein be GRANTED upon satisfaction of the above-stated condition. DONE and ENTERED this 15th day of January, 1986 in Tallahassee, 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 15th day of January, 1986. COPIES FURNISHED: Virginia M. Hoover, MSM Consultant 5366 East Space Coast Parkway St. Cloud, Florida 32769 Norman J. Smith, Esquire Post Office Drawer 1549 Kissimmee, Florida 32741 B. J. Owens, Esquire Assistant General Counsel Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32301 Victoria Tschinkel, Secretary Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32301
The Issue The issue to be determined in this case is whether proposed Florida Administrative Code Rule 40E-10.041(3)(d) of the South Florida Water Management District (“the District”) is an invalid exercise of delegated legislative authority.
Findings Of Fact The Conservancy is a non-profit Florida corporation with its offices in Naples, Florida. It has 6,200 members residing in Southwest Florida. The mission of the Conservancy is to protect the environment and natural resources of Southwest Florida. The Caloosahatchee River is an important focus of the Conservancy’s organizational activities and objectives. A substantial number of the members of the Conservancy use the Caloosahatchee River for drinking water, boating, fishing, wildlife observation, and scientific research. The proposed rules create a prospective reservation of water in the not-yet-operational Caloosahatchee River (C-43) West Basin Reservoir “for fish and wildlife.” The Conservancy’s interests would be substantially affected by the proposed reservation. The District is a regional water management agency created, granted powers, and assigned duties under chapter 373, Florida Statutes (2013). It is headquartered in West Palm Beach, Florida. Proposed rule 40E-10.041(3) states: (3) Caloosahatchee River (C-43) West Basin Storage Reservoir: All surface water contained within and released, via operation, from the Caloosahatchee River (C-43) West Basin Storage Reservoir is reserved from allocation. The water reserved under this paragraph will be available for fish and wildlife upon a formal determination of the Governing Board, pursuant to state and federal law, that the Caloosahatchee River (C-43) West Basin Storage Reservoir is operational. The reservation contained within this subsection and the criteria contained in section 3.11.4 of the Applicant’s Handbook for Water Use Permit Applications within the South Florida Water Management District, incorporated by reference in Rule 40E-2.091, F.A.C., shall be revised in light of changed conditions or new information prior to the approval described in paragraph (3)(b) above. Pursuant to subsection 373.223(4), F.S., presently existing legal uses for the duration of a permit existing on [RULE ADOPTION DATE] are not contrary to the public interest. The Conservancy challenges only paragraph (3)(d), contending that it modifies or contravenes the implementing statute, section 373.223(4).
Findings Of Fact The Parties. Respondent, Citrus Recreational Marina, Inc. (hereinafter referred to as "Marina"), is a corporation. Marina is the applicant for the permit which is at issue in this proceeding. Respondent, the Florida Department of Environmental Protection (hereinafter referred to as the "Department"), is an agency of the State of Florida with the responsibility for, among other things, wetland resource permitting. The Department also has responsibility, pursuant to an agreement with the Southwest Florida Water Management District (hereinafter referred to as the "Water Management District"), for Management and Storage of Surface Water permitting within the jurisdictional boundaries of the Water Management District. Petitioner, Save the Manatee Club, Inc. (hereinafter referred to as "Save the Manatee"), is a non-profit, Florida corporation. The stated purpose of Save the Manatee includes protection of the manatee and its habitat through the promotion of public awareness, research and lobbying efforts. Petitioner, Friends of the Greenway (hereinafter referred to as "Friends"), is an organization which promotes responsible environmental policy in Citrus County. Save the Manatee and Friends are "citizens" of the State of Florida. They filed a verified petition for hearing in this matter. They alleged in the petition that the proposed facility will injure, harm, or otherwise pollute the state's natural resources. Members of Petitioners observe, study and enjoy manatee in Citrus County, including waters that would be impacted by the proposed facility. Marina's Permit Applications, the Department's Notice of Intent to Issue and the Petitioners' Challenge. On March 28, 1995, Marina applied to the Department for a permit for Management and Storage of Surface Water. On March 10, 1993, Marina applied to the Department for a wetland resources (dredge and fill) permit. The permits sought by Marina are associated with Marina's plan to construct a marina facility. The marina is to be constructed within an existing dolomite mine pit (hereinafter referred to as the "Mine Pit"). On or about February 6, 1996, the Department entered a notice of intent to issue the permit sought by Marina. A copy of the draft permit, permit number 092278259 and MS092681199, was attached to the notice of intent to issue. On or about March 13, 1996, Petitioners filed a Petition for Formal Administrative Hearing challenging the Department's proposed decision to issue the draft permit. Marina's Proposed Facility. Marina's proposed facility is to be located in Citrus County, Florida. Citrus County is located on the west coast of Florida, north of Tampa, Florida, and south of the mouth of the Suwannee River on the Gulf of Mexico. As part of the proposed facility, Marina proposed to construct 256 wet slips (122 of which may be covered) on six floating docks, a boat ramp, a boat lift bay, a 63-boat dry storage facility, a convenience store with fueling and sewage pump-out facilities, a clubhouse, a stormwater facility and a parking area. The proposed facilities will also include a potable water system. The water system will provide drinking water to the clubhouse, bait stand, fueling facility, boat storage area and the marina docks. The proposed facilities will also include an on-site wastewater treatment facility. The treatment facility will consists of an aerobic system with on-site effluent disposal through drainfield lines into the soil. No sewage treatment percolation ponds will be included on the proposed site. The stormwater system for the proposed site will be separate from the wastewater treatment facility. The stormwater system will include the collection and treatment of stormwater in on-site basins prior to discharge into the Mine Pit. The system will be designed to retain the entire rainfall from a 100-year storm combined with wet detention and on-line systems involving percolation. All these systems have been designed to meet the design standards required by Chapter 40D-4, Florida Administrative Code. The post development runoff discharge rate for the proposed site is projected to be less than the current rate of runoff discharge on the proposed site. The proposed facility will not cause any increased flood risks on-site or off-site. No part of the surface water management system will be located within 100 feet of any public supply well. The fish cleaning stations included for the proposed facility will be located over land. Waste associated with fish cleaning will be collected for disposal. Wastewater from the stations will be directed into the wastewater treatment system for the proposed facility. Wastewater from boats at the proposed facility will directed to the wastewater treatment facility through two pumpout stations located near the proposed fueling facility. Solid waste from the proposed facility and boats utilizing it will be disposed of in trash receptacles located throughout the proposed site. They will ultimately be picked up by a solid waste hauler for disposal. Erosion around the Mine Pit will be controlled through the placement of 2,200 feet of rip rap, vegetation planting and other erosion control techniques. The Mine Pit where the proposed marina is to be constructed is located on the south side of the Cross Florida Greenway Waterway (hereinafter referred to as the "Greenway Waterway") (formerly known as the "Cross Florida Barge Canal"), approximately one half mile east of where U.S. Highway 19 crosses the Greenway Waterway. The proposed site is approximately 4.75 miles from where the Greenway Waterway empties into the Gulf of Mexico. The Mine Pit is U-shaped, approximately 31.4 acres in size, and has an average depth of -20 feet, with pockets of -33 feet in depth. Marina proposed to fill the Mine Pit to 13.0 feet NGVD, place 2,285 linear feet of rip rap, and dredge 4.75 acres of the Mine Pit to -13.0 feet NGVD. The waters of the northwestern corner of the Mine Pit are separated from the waters of the Greenway Waterway by a plug of land approximately 100 to 150 feet wide. Marina proposed to remove the plug to create an entrance from the marina to the Greenway Waterway. The removal of the plug will result in a lowering of the level of water in the Mine Pit by approximately 3 to 5 feet to sea level, the level of the water in the Greenway Waterway. Marina also proposed to excavate a flushing canal channel between the Greenway Waterway and the northeast corner of the Mine Pit. The boundary of the property on which the Mine Pit is located is approximately 100 feet from the Mine Pit at its closest location. The Mine Pit was excavated from lime rock and Ona fine sands; Pits and Udorthents (both manmade) soil types exist throughout the project site. Weedy vegetation dominates the historically disturbed upland area surrounding the Mine Pit. Saltbush (Baccharis halimfolia), marsh elder (Iva frutescens), dog fennel (Eupatorium spp.), marsh fleabane (Pluches spp.), and waxmyrtle (Myrica cerifera) exist along the Greenway Waterway. Southern red cedars (Juniperius silcicola) are scattered throughout the area. Cattails (Typha spp.) have invaded the edges of the Mine Pit. Ownership of the Proposed Site Property. Marina has no ownership interest in the property where the Mine Pit is located. Nor has Marina ever held such an interest. The proposed facility site is held in three undivided interests. At the time the permit applications were filed by Marina, Marina had an option contract to purchase the proposed site. At the time of the final hearing of this matter, the option contract was no longer in force. Marina had also been authorized in writing prior to filing the permit applications to act as agent for the owners of the site for purposes of seeking environmental permitting. It was stipulated at the time of the final hearing that two of the three undivided interest owners had authorized Marina to act as their agent for purposes of obtaining the permits at issue in this proceeding. At the time of the final hearing, the third undivided interest owner did not authorize Marina to act as its agent for any purpose. Marina is agreeable to a new condition being added to the draft permit by the Department requiring Marina to submit documentation to the Department before any development of the proposed facility is commenced proving that Marina has acquired interests in the proposed site necessary for it to carry out the permit conditions. It is the Water Management District's policy in implementing Rule 40D- 4.301(g), Florida Administrative Code, which requires applicants to provide reasonable assurances concerning their proposed projects, is to require the land owner to be the permittee. The Greenway Waterway and the Surrounding Area. The Greenway Waterway consists of natural and man-made waters formerly intended to be used as the Cross Florida Barge Canal. The waters of the Greenway Waterway are classified as "Class III" waters. The Cross Florida Barge Canal was deauthorized on January 22, 1991. In its place was created the Cross Florida Greenways State Recreation and Conservation Area. The State of Florida owns the majority of the lands within the Cross Florida Greenways State Recreation and Conservation Area. The state can, therefore, control development along the Greenway Waterway. A portion of the Greenway Waterway was constructed as part of the Cross Florida Barge Canal by digging a canal from a spillway at Lake Rousseau, east-northeast of the proposed site, to the Gulf of Mexico. This portion of the canal (hereinafter referred to as the "Greenway Canal"), is straight and was designed for a depth of 12 feet. The actual depth of the Greenway Canal varies and, in some locations, is 18 feet deep. The Greenway Canal is also approximately 250 feet wide. The Greenway Canal intersects the Withlacoochee River, which is located to the east of the proposed facility. Prior to the construction of the Greenway Canal, the Withlacoochee River ran from a spillway at Lake Rousseau to the Gulf of Mexico. After construction of the Greenway Canal, the portion of the Withlacoochee River which connects with the Gulf of Mexico was, and still is, separated from the Greenway Canal by an earthen berm. The western portion of the Withlacoochee River (hereinafter referred to as the "Upper Withlacoochee"), continues to run from Lake Rousseau for approximately 1.3 miles to the Greenway Canal and then runs to the Gulf of Mexico through the Greenway Canal. The depth of the Upper Withlacoochee varies from river bottom which is exposed at low tide to areas of approximately 20 feet. The depth of water, the speed at which water flows and the amount of aquatic vegetation in the Upper Withlacoochee varies depending on the amount of water released from Lake Rousseau through the spillway. For the past year, the rate of flow in the Upper Withlacoochee has been relatively high. There are currently two public boat ramps, but no marinas, located on the Greenway Canal. One of those boat ramps is in disrepair and the evidence failed to prove that it is in use. There are no marinas on the Upper Withlacoochee or the Greenway Canal. There is a Florida Marine Patrol station located on the Greenway Canal approximately one-half mile east of U.S. Highway 19. Whether the presence of the station will have any impact on the enforcement of speed limits in the Greenway Canal is purely speculative. Approximately 2 miles west of the proposed facility is an existing active mining operation owned by Independent Aggregates. Barges transport mine product along the Greenway Canal from the mine to the Gulf of Mexico. Another organization, known as "Holnam", has been permitted by the Department to construct a barge-loading facility opposite the Independent Aggregates' barge facility and mine. It is unlikely, however, that Holnam will actually begin operating barges on the Greenway Canal. A speed limit of 25 miles per hour has been imposed by the Department throughout the Greenway Canal. The speed limit was imposed to protect West India Manatee that utilize the Greenway Canal. The Upper Withlacoochee has been designated an idle-speed zone by local ordinance. Crab traps are located along the banks of the Greenway Canal for approximately four miles into the Greenway Canal from the Gulf of Mexico. Traps are generally anchored to the bottom by lines and are spaced approximately 100 feet apart, 20 to 15 feet from the bank. A channel extends for approximately 12 to 15 miles into the Gulf of Mexico from the mouth of the Greenway Canal. The channel is marked. There are obstructions and shallow water outside this channel. Prudent boaters will continue in the channel for approximately four to nine miles before turning north or south into the Gulf of Mexico. Operators of smaller boats and those with knowledge of the area are able, however, to navigate north or south closer to shore. Impact on the Conservation of Fish and Wildlife, Including Endangered or Threatened Species, or Their Habitat. The West India Manatee is an endangered species, which means that it is in danger of extinction. Approximately 3000 manatees are found in Florida waters. Approximately half are located on the east coast and half on the west coast of Florida. There is little interchange between the two groups. The State of Florida is attempting to restore the manatee population to a size which will help to insure its survival as a species. In order for the manatee population to survive, human development and interaction with manatees must be managed. Manatee habitat needs to be preserved from development. Two of the most significant challenges to the survival of the manatee are the number of manatees killed by boats and the increasing number of boats in Florida waters. Collisions with boats is the greatest known cause of manatee deaths (approximately 25 percent). Manatee change locations frequently searching for food, drinking water, resting areas, potential mates and birthing areas. They also return to preferred habitat features. Manatee are attracted to areas that are calm and quiet for birthing areas. Shallow water, accessible from deeper water, is essential for birthing. After giving birth, the mother and calf generally remain in the area for some period of time, sometimes as long as months, until the calf is able to survive elsewhere. They will leave an area, however, if disturbed. Boat traffic, even at slow speeds, can cause disruption to mothers and young calves. Boat traffic can separate a mother and calf. There are approximately 300 manatee in the waters of northwestern Florida (from Tampa Bay to the Suwannee River), which includes the area of the proposed facility and Citrus County. This population has been increasing in recent years. Manatee in the waters of northwestern Florida require a stable source of warm water during the winter. During the winter ambient temperatures drop below the level at which the manatees' metabolism will sustain them. As a result of the need for warmer waters, most of the manatee in northwestern Florida spend the winter in Citrus County. Kings Bay, Crystal River and Homosassa all provide warm water locations for manatee. These sites are located to the south of the proposed facility. Kings Bay is the most important winter manatee habitat on the west coast of Florida. During the rest of the year, when waters are warmer, manatee leave their warm water, winter habitats to forage and investigate other habitat. Manatee that winter in the warm water sites in Citrus County generally migrate to the north. They travel to, and past, the mouth of the Greenway Canal, returning by the same general routes in the winter. Manatee also linger at the mouth of the Greenway Canal at the Gulf of Mexico because that area offers a combination of a relatively deep-water channel with adjacent shallow water and aquatic vegetation. Manatee use the waters of the Greenway Canal and the Upper Withlacoochee. The Greenway Canal is not, however, considered particularly good habitat for manatee. It has relatively deep water, steep banks, little fresh water and little vegetation of interest to manatee. In 1991 Citrus County adopted a Manatee Protection Plan as part of its comprehensive growth management plan. The Manatee Protection Plan does not identify the Greenway Canal as essential manatee habitat. The Manatee Protection Plan was adopted with the assistance of the Department. The Plan was based upon a compilation of manatee studies, marina inventory studies, and a comprehensive view of the county's waterway systems at the time the Plan was adopted. "Essential manatee habitat" is defined in the Manatee Protection Plan as "any land or water area constituting elements necessary to the survival and recovery of the manatee population from endangered status". Whether an area is "essential manatee habitat" is to be considered under the Plan as "a criteria for determining areas where dock facilities should be limited." The definition of "essential manatee habitat" for purposes of the Plan is different from the standard to be applied in by the Department in this case. The definition in the Plan is similar to the federal criteria considered and found to be different from that applicable to Department permitting cases in Metropolitan Dade County v. Coscan Florida, Inc., 609 So.2d 644, 651 (Fla. 3d DCA 1992). The Manatee Protection Plan contemplates that a master plan will be undertaken to establish the capacity of the Greenway Canal for boat and marina facilities. That master plan has not been developed. The fact that the master plan has not been formally undertaken, however, is of little consequence. The Department, due to the State's ownership of the land surrounding the Greenway Canal, has been able to consider possible uses of the Greenway Canal for boating and marinas without a formal master plan. The Manatee Protection Plan does not support a finding that the proposed facility will not have an adverse impact on the manatee. Although the waters of the Greenway Canal do not constitute good manatee habitat, the Upper Withlacoochee is considered good habitat, depending on the amount of water being released from the spillway at Lake Rousseau. Manatee have used the Upper Withlacoochee for feeding, resting and birthing. The Upper Withlacoochee has limited human activity, light boat traffic, sources of fresh water, a warm-water spring and aquatic vegetation. The Upper Withlacoochee has been used for birthing. Infant mortalities reported in the area suggest that the Upper Withlacoochee is used as a preferred birthing area. The rate of mortality suggests a higher rate of successful births. Aerial survey and mortality data also suggests that the Upper Withlacoochee and the Greenway Canal are utilized throughout the year by manatee. Greatest use is seasonal. Aerial survey data underestimates the number of manatee utilizing the Upper Withlacoochee and the Greenway Canal due to the lack of water clarity and due to the meandering course of, and vegetation along, the Upper Withlacoochee. Manatee mortality data concerning the Greenway Canal and the Upper Withlachoochee provides some indication of the fact that the number of manatee that travel through the Greenway Canal and the Upper Withlacoochee is not insignificant. While there was considerable evidence presented concerning whether the number of manatee that utilize the Greenway Canal and the Upper Withlacoochee is accurate or has been underestimated, based upon aerial survey data and manatee mortality comparisons, the critical fact proved by the evidence in this case is that a significant number of manatee do use the Upper Withlacoochee as habitat, including for birthing. The evidence also proved that, in order for manatee to use the Upper Withlacoochee, it is necessary that they travel the length of the Greenway Canal. Another critical fact proved by the evidence is to this matter is that manatee traveling to and from the Upper Withlacoochee must travel the Greenway Canal from the Gulf of Mexico past the proposed facility. The evidence was also unrefuted that increased boat traffic from the proposed facility will have the potential to adversely impact the manatee. That adverse impact will take the form of physical injury due to collisions and stress on manatee from increased human activity. The activity could reduce the use of the Upper Withlacoochee as habitat. What remains to be determined is whether the conditions of the draft permit will provide adequate assurances that the impact will not be contrary to the public interest. The Department's Bureau of Protected Species Management determined that, without the conditions to be added to the draft permit it suggested, the following impacts could be expected as a result of approval of the proposed facility: The probability of manatee/boat collisions increases with increasing boat traffic where boaters and manatees regularly inhabit the same waterways. While the current level of barge/vessel traffic does not appear to be a problem, increasing the amount of recrea- tional and commercial vessel traffic to the proposed levels in this narrow waterway is expected to adversely impact the endangered manatee. Barge trips may become more frequent, and barges traveling down the center of the canal drives manatees toward the edges of the canal. This increases the risk of manatee/recreational boat collisions, and increases the risk of these recreational boats driving manatees underneath, ahead of or behind traveling barges. The probability of lethal and sublethal propeller strikes increases. Also, there is not sufficient space for manatees between the canal bottom and the bottom of a fully loaded barge, with only one foot clearance as typical for loaded barges. The probability of a manatee being crushed will increase, and this impact is difficult to offset with conservation measures other than not allowing the activity. Page 2, Petitioners exhibit 7 and CRMI exhibit 10. The evidence in this case supports the foregoing conclusions. The increased boat traffic from the proposed facility, even if limited to sailboats and even if power boats are allowed at lower speed limits than currently in force in the Greenway Canal, may cause impacts with manatees due to the increased traffic and the use of the Greenway Canal by barges and recreational boats. It is possible that manatees, confronted by oncoming recreational boats and barges, may be forced into the path of barges and be crushed. Barges used by Independent Aggregates are approximately 72 feet wide and 250 feet long and are pulled or pushed by tugboats. The probability of this conflict taking place will be greater if barge use of the Greenway Canal is increased as proposed by Independent Aggregates. The greatest threat to the manatee of the proposed facility is the threat of death or injury as a result of cuts or blunt trauma from collisions of boats with manatees. This threat is primarily associated, however, with faster moving, power boats. Therefore, the extent of possible adverse impact on the manatee will be determined largely by the speed limit imposed in the Greenway Canal. To mitigate against the possible adverse impact on manatee, the Department has included certain conditions in the draft permit. Those conditions are found in Condition 6 of the draft permit and were recommended by the Department's Bureau of Protected Species Management. As a result of the Bureau of Protected Species Management's review of the proposed facility, it was recommended that the proposed facility not be approved if all of the conditions suggested by it were not included in the draft permit. All of the conditions recommended, except one, were included in the draft permit. The condition not included was one that provided that a violation of manatee speed zones would be grounds for revocation of the lease of any slip or dock space at the proposed facility. The lease revocation condition recommended by the Bureau of Protected Species Management was not included in the permit due to concern by the Department as to whether the condition could be legally imposed. The language of the memorandum of review of the proposed facility from the Bureau of Protected Species Management suggesting that the proposed project should not be approved unless all recommended conditions are accepted is standard language used by the Bureau and not intended to be strictly interpreted. The Bureau ultimately concluded that, despite its recommendation, it believes that the conditions of the draft permit are adequate to offset adverse impacts to the manatee. The Bureau's explanation is sufficient to eliminate any inference that otherwise may be drawn from its suggestion that the proposed facility should not be approved due to the exclusion of the permit condition concerning revocation of leases for speed zone violators. Condition 6 requires, among other things, that signs warning of possible manatee activity be displayed during construction, that personnel associated with the project be educated about the manatee, and that other measures designed to protect manatee during construction be followed. Due to the fact that most of the construction will take place in the enclosed Mine Pit, there should be little, if any adverse impact on manatee as as result of construction. Condition 6 also provides that permanent manatee warning signs and information concerning manatee be posted by the marina, and that a manatee awareness education program be established at the proposed facility. Condition 6 also limits the use of the boat ramp of the proposed facility to boats stored "on-site." The ramp will not be open to the general public. Finally, condition 6.l. provides the most important limitation of the use of the proposed facility. Condition 6.1 limits use of the proposed facility to sailboats and, therefore, prohibits the use of power boats: . . . until the applicant has provided documentation to the Department that manatee protection speed zones in the CFBC have been revised, approved by the Bureau of Protected Species Management, and posted in the CFBC. Occupancy of the facility by sailboats shall not be restricted. The limitation of the use of a marina to sailboats should adequately mitigate the adverse impacts to the manatee from the proposed facility. See Coscan, at 651. The effect of condition 6.l. is to allow Marina to obtain a modification of the draft permit after it is issued to allow power boats based upon events which may take place in the future. There are no guarantees that those events will result in reasonable assurances that the adverse impact to the manatee from power boat use at the proposed facility will not be contrary to the public interest. The speed zones which must be established and approved by the Bureau of Protected Species Management will be established, if at all, through rule- making procedures. See Rule 62N-22.011, Florida Administrative Code. The process would allow public input. Additionally, the outcome of the process would be subject to challenge under Chapter 120, Florida Statutes. Because of possible challenges to the efforts to impose speed zones, it is possible that speed zones adequate to reduce the adverse impacts to the manatee which would satisfy the public interest test applicable in this matter will not be adopted. The standards which the Department must adhere to in establishing speed zones are not the same standards applicable in this matter. In this matter, reasonable assurances must be given that there will not be adverse impacts to the manatee, a threatened species, contrary to the public interest. Establishing speed zones pursuant to other provisions of law will not insure that the reasonable assurances required for the issuance of the permit at issue in this case will be given. Although the resulting speed zones may be adequate to protect the manatee, there is no way to determine what kind of speed zones will be established. Without knowing the ultimate speed zones which may be established, or, more importantly, to know that the speed zones will meet the public interest test applicable in this matter, it is not possible to find the reasonable assurances Marina is required to provide at this time or at any time before the proposed facility is actually permitted. If reasonable assurances can be given that the use of power boats in the proposed facility will not be contrary to the public interest once speed zones are established, Marina or the owner of the proposed facility may apply for a permit modification. At that time the requisite reasonable assurances concerning power boat use can be determined. The provision of condition 6.l. allowing Marina to avoid seeking a permit modification at that time is, therefore, at a minimum, unnecessary, and at its worse, an effort to allow Marina to avoid having to provide the necessary reasonable assurances concerning the use of power boats. If only the impact on the manatee were considered in establishing speed zones, it could be concluded slow or idle speed should be imposed throughout the Greenway Canal and for some distance into the Gulf of Mexico in order to adequately reduce the adverse impact from the proposed facility on the manatee. Establishing speed zones, however, requires a consideration of other factors. The evidence in this case failed to address those factors sufficiently to recommend a condition to the draft permit concerning speed zones. Based upon the foregoing, it is concluded that reasonable assurances have not been given that there will not be unreasonable adverse impact to the manatee if the use of power boats at the proposed facility is allowed as provided in condition 6.l. of the draft permit. Other Public Interest Criteria. The evidence failed to prove that the proposed facility will adversely affect the public health, safety or welfare or the property of others. The evidence also failed to prove that the proposed facility will adversely affect navigation or the flow of water or cause harmful erosion or shoaling. The docks and other marina facilities will all be restricted to the Mine Pit, which is not now open to navigation. There is adequate width in the Greenway Canal to allow boats to exit the Mine Pit into the Greenway Canal and for boats and barges in the Greenway Canal to pass each other. Rip-rap to be placed along the Mine Pit shore and other shoreline stabilization activities will be adequate to prevent erosion and shoaling. Groundwater flow at the proposed site should not be adversely affected by the proposed facility, except as discussed, infra. The proposed facility should not adversely affect fishing or recreational values or marine productivity in the vicinity of the proposed facility. Recreational values (boating and fishing) should be enhanced as a result of the proposed facility. If condition 6.l. is not eliminated and power boats are allowed in the Greenway Canal, there are no assurances that the recreational value provided by the manatee will not be adversely impacted. The proposed facility is intended to be permanent. The evidence failed to prove that the proposed facility will adversely affect or enhance significant historical or archaeological resources under the provisions of Section 267.061, Florida Statutes. If condition 6.l. is not modified to eliminate the use of power boats automatically upon the establishment of speed zones, there are no reasonable assurances that the current condition and relative value of functions being performed by the Greenway Canal and the Upper Withlacoochee will not be adversely affected by the proposed facility. Otherwise, the proposed facility should not have an adverse impact on current conditions and relative value of current functions of the area. Groundwater Quality Standards. The general geology in the area of the proposed facility and the Greenway Canal is known as karst terrain. Karst terrain is geology formed by the solution of limestone over millions of years. Sequential episodes of exposure of the Floridan aquifer, which underlies the area, occurs in karst terrain as the result of the natural formation of sink holes. These sink holes impact the movement of groundwater. Information exists to reasonably describe the hydrogeology of the area in "regional" terms. There is insufficient information generally available about the specific hydrogeology of the proposed site or the immediately surrounding area. Underlying the entire area and the proposed site in particular is the Floridan aquifer. The properties of the Floridan aquifer in coastal Citrus County, including the proposed site, can vary enormously over relatively short vertical distances. This variability impacts the movement of groundwater. The groundwater under the proposed site is classified as G-II. The terms "potentiometric surface" are used to describe the level to which groundwater will rise above sea level. The higher groundwater rises above sea level, the thicker the layer of underlying drinkable water should be before reaching an interface between drinkable and undrinkable water. In central Citrus County, the potentiometric surface is relatively low and flat at approximately 5 or 6 feet above sea level. The resulting interface between drinkable and nondrinkable water is found at 200 or more feet. Due to natural geological conditions, moving to the northwest of Citrus County, including the Greenway Canal area, potentiometric levels are higher. Therefore, thicker layers of drinkable water should be found around the proposed facility site and the Greenway Canal than in central Citrus County. Because of higher potentiometric surface in the area of the Greenway Canal, the layer of drinkable water would be expected to continue beyond 120 feet below the surface. Construction of the Greenway Canal has resulted in the intrusion of saltwater from the Greenway Canal into the groundwater. It has also resulted in the upconing of mineralized (sulfate) waters from deeper to less deep levels within the Floridan aquifer. These impacts have been significant with regard to the chloride levels (from the saltwater) and sulfate upconing. The impact of the construction of the Greenway Canal on saltwater intrusion and sulfate upconing is the result of the lowering of the surface waters to sea level in the Greenway Canal. The lowering of the level of water in the Greenway Canal has had the effect of decreasing the potentiometric surface and, consequently, reducing the thickness of the layer of drinkable groundwater. Saltwater has intruded along and beneath the Greenway Canal. The extent of this intrusion is represented graphically on Petitioner's exhibits 13 and 14. Saltwater intrusion has occurred primarily as a result of downward leakage of saltwater traveling up the Greenway Canal. The saltwater intrusion has been localized around the Greenway Canal. The wedge of saltwater intrusion has reached to approximately where U.S. Highway 19 crosses the Greenway Canal, approximately one-half mile east of the proposed site. Although it is "theoretically" possible that the saltwater wedge could continue to move along the entire length of the Greenway Canal, the evidence fails to support such a conclusion. Due to freshwater discharges from Lake Rousseau, the evidence supports a conclusion that the saltwater wedge will not move further eastward to any significant extent. The lowering of the waters of the Greenway Canal to sea level has had the effect of bringing sea level elevations to the Floridan aquifer several miles further inland than had been the case before construction of the Greenway Canal. Groundwater adjacent to the Greenway Canal, which is at levels higher than sea level, has discharged into the Greenway Canal. This has caused a lower groundwater level and the movement upward of groundwater. Similar effects have occurred naturally along the Withlacoochee River. As groundwater rises it comes into contact with a geologic unit which contains calcium sulfate. The sulfate mixes with the groundwater causing the "mineralized" groundwater. While the change in surface waters in the Greenway Canal was quick, the change in groundwater quality from saltwater intrusion and sulfate upconing has taken place only as fast as groundwater in the area flows. Generally, groundwaters flow very slowly. The impact of the Greenway Canal on upconing of sulfates will continue over time. Mineralized waters will continue to move upward and, perhaps, laterally away from the Greenway Canal. Pockets of mineralized waters (containing sulfates) can be found naturally occurring around the proposed site. Sulfate enriched groundwater in coastal areas naturally move toward, and discharge into, the surface waters along the coastal boundary. This process occurs along the Gulf of Mexico and the shoreline of Citrus County. The construction of the Greenway Canal has disrupted this natural process. The Mine Pit, when it was in use, was dewatered to different levels at various times. The dewatering took place for varying periods of time. Usually, the Mine Pit would be completely dewatered for a period of approximately three months. On one occasion, the Mine Pit was dewatered for a period of two years (1989 to 1991). It was dewatered to allow the removal of dolomite. The Mine Pit was allowed to fill back up with water after each dewatering. The dewatering of the Mine Pit was regulated by the Water Management District. The permit allowing dewatering of the Mine Pit required that the permit holder mitigate for adverse impacts of dewatering, including the inducement of natural contaminants into the aquifer. The evidence failed to prove, however, the extent of adverse impacts of the dewatering or whether the permit holder actually mitigated against any such adverse impacts. The lowering of the water level in the Mine Pit caused some upconing of sulfates for the same reason that the digging of the Greenway Canal did. Lowering the water level in the Mine Pit lowered the potentiometric level. The evidence, however, failed to prove the extent of the impact or how long the impact lasted. The lowering of the water level of the Mine Pit to sea level by connecting the Mine Pit to the Greenway Canal as proposed by Marina will have the same general impact as the digging of the Greenway Canal on the upconing of sulfates. Unlike the impact of the dewatering of the Mine Pit, the proposed modification will be permanent. Lowering the water level will have the same type impact for the same reasons that the digging of the Greenway Canal caused upconing. The potentiometric level will be permanently lowered; the layer of drinkable water will be permanently decreased. The evidence failed to prove that the lowering of the water level of the Mine Pit to sea level as a result of the proposed project will have the same impact on saltwater intrusion. This impact is less likely because the Mine Pit is four and a half miles inland from the Gulf of Mexico. The upconing of sulfates as a result of the construction of the proposed facility will cause the levels of sulfates found in some portion of the currently drinkable layer of groundwater to exceed water quality standards. The area impacted will consist of groundwater which would otherwise have been expected to be potable. Comments concerning the proposed facility were provided to the Department by the Water Management District. By letter dated August 16, 1995, the Water Management District informed the Department that it was anticipated that the proposed facility would result in saltwater intrusion and upconing of mineralized water and that the area's groundwater could be expected to be degraded inconsistent with Water Management District rules. In response to the Water Management District's comments, Marina agreed to undertake a hydrogeologic study to gather site specific information to address those concerns. As a part of Marina's study, one monitoring well was drilled on the proposed site. The well was drilled to a depth of 450 feet in order to gather data concerning water quality at various depths. In early 1996, the Water Management District concluded that the results of the study undertaken by Marina had resolved its concerns. The test well was drilled to the south of the Mine Pit, approximately 2500 feet from the Greenway Canal. The water quality tests run on water taken from the test well reflected a sharp change in water quality at a depth of approximately 120 feet. The water below that level contained high levels of sulfates: 552 milligrams per liter of sulfate. Immediately above the high sulfate waters, low sulfate levels (12 milligrams per liter) were found. This result is contrary to what would be expected to be found based upon the higher potentiometric surface in this area of Citrus County. Because the potentiometric surface is higher in the area, it would be expected that the layer of drinkable groundwater would be considerably higher than 120 feet. The findings concerning the thickness of the drinkable groundwater found at the test well are consistent with the conclusions concerning the impacts of the digging of the Greenway Canal. As a result of the digging of the Greenway Canal and the lowering of the water level to sea level, the resulting decrease in the potentiometric surface has caused the upconing of mineralized waters and a decrease in the layer of drinkable groundwater. The Department and Marina have not disputed the fact that drinkable groundwater will be impacted by the upconing of mineralized waters (sulfates) as a result of connecting the Mine Pit with the Greenway Canal and lowering the level of water in the Mine Pit to sea level. The Department and Marina, however, have suggested that the extent of the impact of the lowering of the water level in the Mine Pit will not extend more than 100 feet from the Mine Pit and will be limited to the proposed site. The evidence failed to support this position. The unplugging of the Mine Pit will have the effect of increasing the area of water below sea level in the area by 12 percent of the size of the area of the Greenway Canal. Data from test wells around the Greenway Canal and other data has indicated that the upconing of mineralized water as a result of the lowering of the water level in the Greenway Canal has extended considerably more than 100 feet from the Greenway Canal. In light of the fact that the Mine Pit is equal in surface area to 12 percent of the surface area of the Greenway Canal, there is reason to be concerned that the area of impact from the lowering of the water level in the Mine Pit will also be significant. In light of the foregoing, and due to the variability of the geology of the area, the data from a single well on the site is of questionable value. Data from a single well simply does not provide the information necessary for Marina to provide reasonable assurances that the impact on groundwater from its proposed facility will be limited to an area of 100 feet from the Mine Pit. There is simply not enough data concerning the Mine Pit to conclude with any reasonable assurance that the upconing of mineralized waters (containing sulfates) will be limited to an area of 100 feet around the Mine Pit. Because of the size of the Mine Pit in relation to the Greenway Canal and the impact on upconing from the Greenway Canal, it is more likely that the impact of upconing will exceed 100 feet. A log of geologic characteristics of the test well was maintained. A confining unit or layer was found between the high-sulfate and low-sulfate waters at between 110 and 120 feet below the surface. The evidence failed to prove, however, the extent to which the layer may extend horizontally from the well location. In light of the general geology of Citrus County and the region around the proposed site, insufficient data exists to reach any conclusion about the extent of the confining layer. Establishing the extent of the confining layer would require more extensive (and costly) study of the site. The existence of a confining layer would also have no significant impact on the degree of upconing as a result of lowering the water level in the Mine Pit. I. Surface Water Quality Standards. Petitioners stipulated that the proposed facility would not violate surface water quality standards except with regard to the standard for chloride. Because of the flow of fresh water from Lake Rousseau and the flushing canal to be constructed at the proposed site, reasonable assurances have been given by Marina that there will be sufficient flushing of the Mine Pit to preclude a violation of chloride standards for surface waters. The evidence presented by Petitioners concerning the possibility that the salt water wedge resulting from the construction of the Greenway Canal may extend landward and eventually into the Mine Pit was too speculative and "theoretical".
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Department of Environmental Protection enter a Final Order denying Citrus Recreational Marina, Inc.'s application for wetland resource permit (dredge and fill) and the application for Management and Storage of Surface Waters Permit. DONE and ENTERED this 18th day of November, 1996, in Tallahassee, Florida. LARRY J. SARTIN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 18th day of November, 1996. COPIES FURNISHED: Robert Goodwin, Esquire Save the Manatee Club, Inc. 500 North Maitland Avenue, Suite 210 Maitland, Florida 32751 Peter Belmont, Esquire 511 31st Avenue, North St. Petersburg, Florida 33704 Wayne Hrydziusko Assistant General Counsel Douglas H. MacLaughlin Assistant General Counsel State of Florida, Department of Environmental Protection 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 Richard S. Brightman, Esquire Douglas Roberts, Esquire HOPPING, GREEN, SAMS & SMITH, P.A. Post Office Box 6526 Tallahassee, Florida 32314 Perry Odom, Esquire Department of Environmental Protection 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 Virginia B. Wetherell, Secretary Department of Environmental Protection 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000
The Issue The issues in this case are whether IP is entitled to issuance of National Pollutant Discharge Elimination System (NPDES) Permit Number FL0002526-001/001-IW1S ("the proposed permit"), Consent Order No. 04-1202, Authorization for Experimental Use of Wetlands Order No. 04-1442, and Waiver Order No. 04-0730 (collectively, "the Department authorizations"), which would authorize IP to discharge treated industrial wastewater from its paper mill in Cantonment, Escambia County, Florida, into wetlands which flow to Elevenmile Creek and Perdido Bay.
Findings Of Fact Introduction A. The Parties The Department is the state agency authorized under Chapter 403, Florida Statutes (2006),2 to regulate discharges of industrial wastewater to waters of the state. Under a delegation from the United States Environmental Protection Agency (EPA), the Department administers the NPDES permitting program in Florida. IP owns and operates the integrated bleached kraft paper mill in Cantonment, Escambia County, Florida. FOPB is a non-profit Alabama corporation3 established in 1988 whose members are interested in protecting the water quality and natural resources of Perdido Bay. FOPB has approximately 450 members. About 90 percent of the members own property adjacent to Perdido Bay. James Lane is the President of FOPB. Mellita A. Lane, Zachary P. Lane, Peter A. Lane, and Sarah M. Lane are the adult children of Dr. Jacqueline Lane and James Lane. Dr. Lane and James Lane live on property adjacent to Perdido Bay with their son Peter. The Adjacent Waters The mill's wastewater effluent is discharged into Elevenmile Creek, which is a tributary of Perdido Bay. The creek flows southwest into the northeastern portion of Perdido Bay. Elevenmile Creek is a freshwater stream for most of its length but is sometimes tidally affected one to two miles from its mouth. Elevenmile Creek is designated as a Class III water. Perdido Bay is approximately 28 square miles in area and is bordered by Escambia County on the east and Baldwin County, Alabama on the west. The dividing line between the states runs north and south in the approximate middle of Perdido Bay. U.S. Highway 90 crosses the Bay, going east and west, and forms the boundary between what is often referred to as the "Upper Bay" and "Lower Bay." The Bay is relatively shallow, especially in the Upper Bay, ranging in depth between five and ten feet. Perdido Bay is designated as a Class III water. Sometime around 1900, a manmade navigation channel was cut through the narrow strip of land separating Perdido Bay from the Gulf of Mexico. The channel, called Perdido Pass, allowed the salt waters of the Gulf to move with the tides up into Perdido Bay. Depending on tides and freshwater inflows, the tidal waters can move into the most northern portions of Perdido Bay and even further, into its tributaries and wetlands. The Perdido River flows into the northwest portion of Perdido Bay. It is primarily a freshwater river but it is sometimes tidally influenced at and near its mouth. The Perdido River was designated an Outstanding Florida Water (OFW) in 1979. At the north end of Perdido Bay, between Elevenmile Creek and the Perdido River, is a large tract of land owned by IP called the Rainwater Tract. The northern part of the tract is primarily freshwater wetlands. The southern part is a tidal marsh. Tee and Wicker Lakes are small (approximately 50 acres in total surface area) tidal ponds within the tidal marsh. Depending on the tides, the lakes can be as shallow as one foot, or several feet deep. A channel through the marsh allows boaters to gain access to Tee and Wicker Lakes from Perdido Bay. The Mill 1. Production Florida Pulp and Paper Company first began operating the Cantonment paper mill in 1941. St. Regis Paper Company (St. Regis) acquired the mill in 1946. In 1984, Champion International Corporation (Champion) acquired the mill. Champion changed the product mix in 1986 from unbleached packaging paper to bleached products such as printing and writing grades of paper. In 2001, Champion merged with IP, and IP took over operation of the mill. The primary product of the mill continues to be printing and writing paper. The mill is integrated, meaning that it brings in logs and wood chips, makes pulp, and produces paper. The wood is chemically treated in cookers called digesters to separate the cellulose from the lignin in the wood because only the cellulose is used to make paper. Then the "brown stock" from the digesters goes through the oxygen delignification process, is mixed with water, and is pumped to paper machines that make the paper products. There are two paper machines located at the mill. The larger paper machine, designated P5, produces approximately 1,000 tons per day of writing and printing paper. The smaller machine, P4, produces approximately 400 to 500 tons per day of "fluff pulp." 2. The Existing Wastewater Treatment Plant The existing wastewater treatment plant (WWTP) at the mill is described in the revised NPDES permit as a "multi-pond primary and secondary treatment system, consisting of a primary treatment system (primary settling basin, polymer addition, two solids/sludge dewatering basins, and a floating dredge), and secondary treatment system (four ponds in series; two aerated stabilization basins with approximately 2,200 horsepower (HP) of aeration capacity, a nutrient feed system, two non-aerated polishing ponds and a final riffle section to re-aerate the effluent)." The WWTP is a system for reducing the biological oxygen demand (BOD) of the mill's wastewater by bacteria. IP’s wastewater is nutrient deficient when it enters the WWTP. Nutrients in the form of phosphorus and nitrogen must be added for the growth of bacteria. The WWTP begins with a primary settling basin in which suspended solids settle to the bottom. The solids form a sludge that is pumped by hydraulic dredge into two dewatering basins. The dewatering basins are used alternately so that, as one pond is filled, water is removed from the other pond. After being dewatered, the sludge is removed and allowed to dry. Then, it is transported to a landfill located about five miles west of the mill on land owned by IP. The water removed from the dewatering basins moves into to the first aeration basin. The aeration basin has floating aerator devices that add oxygen to facilitate biological conversion of the wastewater. The wastewater then flows sequentially through three more basins where there is further oxygenation and settling of the biological solids. The discharge from the fourth settling basin flows through a riffle section where the effluent is aerated using a series of waterfalls. This is the last element of the treatment process from which the mill's effluent enters waters of the state. Chemicals are added during the treatment process to control phosphorus and color. Chemicals are also added to suppress foam. Sanitary wastewater from the mill, after pretreatment in an activated sludge treatment system, is "sewered" to the mill's WWTP and further treated in the same manner as the industrial wastewater. A separate detention pond collects and treats stormwater from onsite and offsite areas and discharges at the same point as the wastewater effluent from the WWTP. Stormwater that falls on the industrial area of the mill is processed through the WWTP. The discharge point from the WWTP, and the point at which the effluent is monitored for compliance with state effluent limitations, is designated D-001, but is also called the Parshall Flume. The effluent is discharged from the Parshall Flume through a pipe to an area of natural wetlands. After passing through the wetlands, the combined flow runs through a pipe that enters Elevenmile Creek from below the surface. This area is called the "boil" because the water can be observed to boil to the surface of Elevenmile Creek. From the boil, the mill effluent flows approximately 14 miles down (apparently misnamed) Elevenmile Creek to upper Perdido Bay. Regulatory History of the Mill Before 1995, the mill had to have both state and federal permits. The former Florida Department of Environmental Regulation (DER) issued St. Regis an industrial wastewater operating permit in 1982 pursuant to Chapter 403, Florida Statutes. The EPA issued St. Regis an NPDES permit in 1983 pursuant to the Clean Water Act. When it acquired the facility in 1984, Champion continued to operate the mill under these two permits. In 1986, Champion obtained a construction permit from DER to install the oxygen delignification technology and other improvements to its WWTP in conjunction with the conversion of the production process from an unbleached to a modified bleached kraft production process. In 1987, Champion applied to DER for an operating permit for its modified WWTP and also petitioned for a variance from the Class III water quality standards in Elevenmile Creek for iron, specific conductance, zinc, and transparency. DER's subsequent proposal to issue the operating permit and variance was formally challenged.4 In 1988, while the challenges to the DER permit and variance were still pending, Champion dropped its application for a regular operating permit and requested a temporary operating permit (TOP), instead. In December 1989, DER and Champion entered into Consent Order No. 87-1398 ("the 1989 Consent Order"). The 1989 Consent Order included an allegation by DER that the mill's wastewater discharge was causing violation of state water quality standards in Elevenmile Creek for dissolved oxygen (DO), un-ionized ammonia, and biological integrity. The 1989 Consent Order authorized the continued operation of the mill, but established a process for addressing the water quality problems in Elevenmile Creek and Perdido Bay and bringing the mill into compliance in the future. Champion was required to install equipment to increase the DO in its effluent within a year. Champion was also required to submit a plan of study and, 30 months after DER's approval of the plan of study, to submit a study report on the impacts of the mill's effluent on DO in Elevenmile Creek and Perdido Bay and recommended measures for reducing or eliminating adverse impacts. The study report was also supposed to address the other water quality violations caused by Champion. A comprehensive study of the Perdido Bay system was undertaken by a team of 24 scientists lead by Dr. Robert Livingston, an aquatic ecologist and professor at Florida State University. The initial three-year study by Dr. Livingston's team of scientists was followed by a series of related scientific studies, which will be referred to collectively in this Recommended Order as "the Livingston studies." The 1989 Consent Order had no expiration date, but it was tied to the TOP, which had an expiration date of December 1, 1994. Champion was to be in compliance with all applicable water quality standards by that date. The TOP established the following specific effluent discharge limitations for the mill: Monthly Average Maximum Biological Oxygen Demand (BOD) (Mar-Oct) 4,500 lbs/day 6,885 lbs/day (Nov-Feb) 5,100 lbs/day 6,885 lbs/day Total Suspended Solids (TSS) (Mar-Oct) 8,000 lbs/day 27,000 lbs/day (Nov-Feb) 11,600 lbs/day 27,000 lbs/day Iron 3.5 mg/l Specific Conductance 2,500 micromhos/cm Zinc .075 mg/l The limits stated above for iron, specific conductance, and zinc were derived from the variance granted to Champion. Champion was also granted variances from the water quality standards for biological integrity, un-ionized ammonia, and DO. The 1989 Consent Order, TOP, and variance were the subject of the Recommended Order and Final Order issued in Perdido Bay Environmental Association, Inc. v. Champion International Corporation, 89 ER FALR 153 (DER Nov. 14, 1989). Champion's deviation from the standards for iron, zinc, and specific conductance pursuant to the variance was determined to present no significant risk of adverse effect on the water quality and biota of Elevenmile Creek and Perdido Bay. The mill effluent's effect on transparency (reduced by color in the mill effluent) was considered a potentially significant problem. However, because it was found that there was no practicable means known or available to reduce the color, and there was insufficient information at that time to determine how Champion's discharge of color was affecting the biota, Champion was allowed to continue its discharge of color into Elevenmile Creek pending the results of the Livingston studies. In the administrative hearing, the petitioners argued that it was unreasonable to put off compliance for five years, but the hearing officer determined that five years was reasonable under the circumstances. One finding in the Recommended Order and a reason for recommending approval of the TOP and Consent Order was: After the studies referred to in the consent order, the Department will not allow Champion additional time to study problems further. Significant improvements will be required within the five year period and at the end of that period, the plant will be in compliance with all water quality standards or will be denied an operating permit, with related enforcement action. The requirement of the 1989 Consent Order that Champion be in compliance with all applicable standards by December 1994, was qualified with the words "unless otherwise agreed." In considering this wording, the hearing officer opined that any change in the compliance deadline "would require a new notice of proposed agency action and point of entry for parties who might wish to contest any modification in the operational requirements, or changes in terms of compliance with water quality standards." The mill was not in compliance with all water quality standards in December 1994. No enforcement action was taken by the Department and no modification of the 1989 Consent Order or TOP was formally proposed that would have provided a point of entry to any members of the public who might have objected. Instead, the Department agreed through correspondence with Champion to allow Champion to pursue additional water quality studies and to investigate alternatives to its discharge to Elevenmile Creek. In 1994 and 1995, Champion applied to renew its state and federal wastewater permits, which were about to expire. The Department and EPA notified Champion that its existing permits were administratively extended during the review of the new permit applications. Today, the Cantonment mill is still operating under the 1989 TOP which, due to the administrative extension, did not terminate in December 1994, as stated on its face. In November 1995, following EPA's delegation of NPDES permitting authority to the Department, the Department issued an order combining the state and federal operating permits into a single permit identified as Wastewater Permit Number FL0002526-002-IWF/MT. In summary, the permit requirements currently applicable to the operation of the Cantonment paper mill are contained in the following documents: January 3, 1983, EPA NPDES Permit December 13, 1989, DER Temporary Operating Permit (TOP) December 13, 1989, DER Consent Order December 12, 1989, DER Variance November 15, 1995, DEP Order (combining the NPDES permit and the State-issued wastewater permit) April 22, 1996, DEP Letter (clarifying November 15, 1995, Order regarding 1983 NPDES Permit) During the period from 1992 to 2001, more water quality studies were conducted and Champion investigated alternatives to discharging into upper Elevenmile Creek, including land application of the effluent and relocation of the discharge to lower Elevenmile Creek or the Escambia River. In 2001, IP and Champion merged and IP applied to the Department to have the mill permit and related authorizations transferred to IP. Dr. Lane formally challenged the proposed transfer, but she was determined to lack standing. One conclusion of law in the Recommended Order issued in the 2001 administrative case was that the mill was in compliance with the consent order, TOP, and variance. That conclusion was not based on a finding that Champion was in compliance with all applicable water quality standards, but that the deadline for compliance (December 1, 1994) had been extended indefinitely by the pending permit renewal application. In 2001, Dr. Lane twice petitioned the Department for a declaratory statement regarding the Department's interpretation of certain provisions of the 1989 Consent Order. The first petition was denied by the Department because Dr. Lane failed to adequately state her interests and because she was a party in a pending case in which the Consent Order was at issue. Dr. Lane second petition was denied for similar reasons. Over 14 years after the deadline established in the 1989 TOP for the mill to be in compliance with all applicable standards in Elevenmile Creek, IP is still not meeting all applicable standards. However, the combination of (1) Consent Order terms that contemplated unspecified future permit requirements based on yet-to-be-conducted studies, (2) the wording in the TOP that tied the deadline for compliance to the expiration of the TOP, and (3) the administrative extension of the TOP, kept the issue of Champion's and IP's compliance in a regulatory limbo. It increased the Department's discretion to determine whether IP was in compliance with the laws enacted to protect the State's natural resources, and reduced the opportunity of interested persons to formally disagree with that determination. The Proposed Authorizations A. In General In September 2002, while Champion's 1994 permit renewal application was still pending at DEP, IP submitted a revised permit renewal application to upgrade the WWTP and relocate its discharge. The WWTP upgrades consist of converting to a modified activated sludge treatment process, increasing aeration, constructing storm surge ponds, and adding a process for pH adjustment. The new WWTP would have an average daily effluent discharge of 23.8 million gallons per day (mgd). IP proposes to convey the treated effluent by pipeline 10.7 miles to a 1,464-acre wetland tract owned by IP5, where the effluent would be distributed over the wetlands as it flows to lower Elevenmile Creek and upper Perdido Bay. IP revised its permit application again in October 2005, to obtain authorization to reconfigure the mill to produce unbleached brown paper for various grades of boxes. If the mill is reconfigured, only softwood (pine) would be used in the new process. On April 12, 2005, the Department issued a Notice of Intent to Issue the proposed NPDES permit, together with Consent Order No. 04-1202, Authorization for Experimental Use of Wetlands Order No. 04-4442, and Waiver Order No. 04-0730. An exemption from water quality criteria in conjunction with the experimental use of wetlands for wastewater treatment is provided for in Florida Administrative Code Rule 62-660.300(1). The proposed exemption order would exempt IP from Class III water quality criteria for pH, DO, transparency, turbidity, and specific conductance. The proposed waiver order is associated with the experimental use of wetlands exemption and relieves IP of the necessity to comply with two exemption criteria related to restricting public access to the area covered by the exemption. The Department and IP contend that restricting public access to Tee and Wicker Lakes is unnecessary. The proposed Consent Order is an enforcement document that is necessary if the mill is to be allowed to operate despite the fact that its wastewater discharge is causing violations of water quality standards. A principal purpose of the proposed Consent Order is to impose a time schedule for the completion of corrective actions and compliance with all state standards. The proposed Consent Order would supersede the 1989 Consent Order. The Proposed NPDES Permit 1. WWTP Upgrades IP's primary objective in upgrading the WWTP was to reduce the nitrogen and phosphorus in the mill's effluent discharge. The upgrades are designed to reduce un-ionized ammonia, total soluble nitrogen, and phosphorus. They are also expected to achieve a modest reduction of BOD and TSS. Upgraded pond 1 is expected to convert soluble BOD to suspended solids and to accomplish other biological conversions seven or eight times faster than the current pond 1. The modification of pond 3 to an activated sludge system is expected to more rapidly remove and recycle the solids back into pond 1. Pond 3 will have a much larger bacterial population to treat the effluent. There would also be additional pH control at the end of pond 3. IP would continue to use its Rock Crossing Landfill for disposal of wastewater sludge removed from the WWTP. Authorization for the landfill is part of the proposed NPDES permit. Groundwater monitoring beneath the landfill is required. The WWTP upgrades would include increased storm surge capacity by converting two existing aeration and settling basins (ponds 2 and 4) to storm surge basins. The surge basins would allow the mill to manage upsets and to withstand a 25-year, 24-hour storm event of 11 inches of rain. Rainfall that falls into the production areas would flow to the WWTP, and be impounded in ponds 2 and 4. After the storm event this impounded water would flow back through the WWTP where it would be treated before flowing through the compliance point and into the pipeline to the wetland tract. The Department required IP to monitor for over 129 pollutants in its stormwater runoff from the mill’s manufacturing facility, roads, parking lots, and offsite nonpoint sources. No pollutants were found in the stormwater at levels of concern. The average volume of mill discharge would be mgd. IP plans to obtain up to 5 mgd of treated municipal wastewater from a new treatment facility planned by the Emerald Coast Utility Authority (ECUA), which would be used in the paper production process and would reduce the need for groundwater withdrawals by IP for this purpose. The treated wastewater would enter the WWTP along with other process wastewater, be treated in the same manner in the WWTP, and become part of the effluent conveyed through the pipeline to the wetland tract. 2. Effluent Limitations The effluent limitations required by the proposed permit include technology-based effluent limits (TBELs) that apply to the entire pulp and paper industry. TBELs are predominantly production-based and are designed to limit the amount of pollutants that may be discharged per ton of product produced. The Cantonment mill has not had a problem in meeting TBELs. The TBELs that IP must meet are in the "Cluster Rule" promulgated by the EPA and adopted by the Department. The mill already meets the TBELS applicable to its current bleaching operation. In fact, EPA determined that the mill was performing in the top 5 percent of similar mills in the nation. The mill would have to meet the TBELs for a brown kraft operation if that conversion is made by IP. The proposed permit also imposes water quality- based effluent limits (WQBELs) that are specific to the Cantonment mill and the waters affected by its effluent discharge. The WQBELs for the mill are necessary for certain constituents of the mill's effluent because the TBELs, alone, would not be sufficient to prevent water quality criteria in the receiving waters from being violated. For example, the TBEL for BOD for similar pulp and paper mills is 15,943 pounds per day (ppd) on a monthly average, but the WQBEL for BOD for the Cantonment mill would be 4,500 ppd in summer and 5,100 ppd in winter. Dr. Livingston developed an extensive biological and chemical history of Perdido Bay and then evaluated the nutrient loadings from Elevenmile Creek over a 12-year period to correlate mill loadings with the biological health of the Bay. Because Dr. Livingston determined that the nutrient loadings from the mill that occurred in 1988 and 1989 did not adversely impact the food web of Perdido Bay, he recommended effluent limits for ammonia nitrogen, orthophosphate, and total phosphorous that were correlated with mill loadings of these nutrients in those years. The Department used Dr. Livingston’s data, and did its own analyses, to establish WQBELs for orthophosphate for drought conditions and for nitrate-nitrite. WQBELs were ultimately developed for total ammonia, orthophosphate, nitrate-nitrite, total phosphorus, BOD, color, and soluble inorganic nitrogen. The WQBELs in the proposed permit were developed to assure compliance with water quality standards under conditions of pollutant loadings at the daily limit (based on a monthly average) during low flow in the receiving waters. The proposed permit also establishes daily maximum limits (the most that can be discharged on any single day). For BOD, the daily maximum limit is 9,000 ppd. William Evans, the Department employee with primary responsibility for the technical review of the proposed Department authorizations, said that setting the daily maximum limit at twice the monthly average was a standard practice of the Department. The maximum daily limits are not derived from the Livingston studies. Dr. Glen Daigger, a civil and environmental engineer, designed a model for the WWTP and determined the modifications necessary to enable the WWTP's discharge to meet all TBELs and WQBELs. Petitioners did not dispute that the proposed WWTP is capable of achieving the TBELs and WQBELs. Their main complaint is that the WQBELs are not adequate to protect the receiving waters. 3. Discharge to the Wetland Tract IP proposes to relocate its discharge to the wetland tract as a means to end decades of failure by the mill to meet water quality standards in Elevenmile Creek. Discharging to the wetland tract, which flows to the marine waters of lower Elevenmile Creek and Perdido Bay, avoids many of the problems associated with trying to meet the more stringent water quality standards applicable in a freshwater stream. An effluent distribution system is proposed for the wetland tract to spread the effluent out over the full width of the wetlands so that their full assimilative capacity is utilized. This would be accomplished by a system of berms running perpendicular to the flow of water through the wetlands, and gates and other structures in and along the berms to gather and redistribute the flow as it moves in a southerly direction toward Perdido Bay and lower Elevenmile Creek. The design incorporates four existing tram roads that were constructed on the wetland tract to serve the past and present silviculture activities there. The tram roads, with modifications, would serve as the berms in the wetland distribution system. As the effluent is discharged from the pipeline, a point designated D-003, it would be re-aerated6 and distributed across Berm 1 through a series of adjustable, gated openings. Mixing with naturally occurring waters, the effluent would move by gravity to the next lower berm. The water will re-collect behind each of the vegetated berms and be distributed again through each berm. The distance between the berms varies from a quarter to a half mile. Approximately 70 percent of the effluent discharged at D-003 would flow by gravity a distance of approximately 2.3 miles to Perdido Bay. The remaining 30 percent of the effluent would flow a shorter distance to lower Elevenmile Creek. A computer simulation performed by Dr. Wade Nutter, an expert in hydrology, soils, and forested wetlands, indicated that the effluent discharged at D-003 will move through the wetland tract at a velocity of approximately a quarter-of-a-foot per second and the depth of flow across the wetland tract will be about one-half inch. It would take four or five days for the effluent to reach lower Elevenmile Creek and Perdido Bay. As the treated effluent flows through the wetland tract, there will be some removal of nutrients by plants and soil. Nitrogen and phosphorous are expected to be reduced approximately ten percent. BOD in the effluent is expected to be reduced approximately 90 percent. Construction activities associated with the effluent pipeline and berm modifications in the wetland tract were permitted by the Department in 2003 through issuance of a Wetland Resource Permit to IP. The United States Army Corps of Engineers has also permitted this work. No person filed a petition to challenge those permits. A wetland monitoring program is required by the proposed permit. The stated purpose of the monitoring program is to assure that there are no significant adverse impacts to the wetland tract, including Tee and Wicker Lakes, and is referred to as the No Significant Adverse Impact (NSAI) analysis. A year of "baseline data" on the wetlands and Tee and Wicker Lakes was collected and submitted to the Department for use in developing the NSAI analysis, but was not made a part of the record in this case. After the discharge to the wetland tract commences, the proposed permit requires IP to submit wetland monitoring reports annually to the Department. A monitoring program was also developed by Dr. Livingston and other IP consultants to monitor the impacts of the proposed discharge on Elevenmile Creek and Perdido Bay. It was made a part of the proposed permit. The Exemption for Experimental Use of Wetlands Florida Administrative Code Rule 62-660.300(1) provides an exemption from water quality criteria for the experimental use of wetlands. The proposed Authorization for Experimental Use of Wetlands Order would exempt IP from Class III water quality criteria for pH, DO, transparency, turbidity, and specific conductance. The proposed exemption order sets forth "interim limits" for pH, DO, color, turbidity, and specific conductance. The proposed exemption order also states that IP may petition for alternative water quality criteria pursuant to Florida Administrative Code Rule 62- 66D.300(1)(b)(c) and (d). The exemption is for 5 years beginning with the commencement of discharge into the wetland tract at D-003. The exemption it can be renewed by IP by application to the Department. The Waiver To qualify for the experimental use of wetlands exemption, Florida Administrative Code Rules 62- 660.300(1)(a)3 and 4 require, respectively, that the public be restricted from the exempted wetland area and that the waters not be used for recreation. IP proposes to prevent public access to the area of the wetland tract where the effluent distribution system is located. This is the freshwater area of the wetland tract and includes the four berms. However, IP does not want, nor believe it is necessary, to prevent public access and recreation on Tee and Wicker Lakes within the tidal marsh below berm 4. These lakes are accessible by boat from Perdido Bay and are used now by the public for boating and fishing. The Proposed Consent Order The proposed Consent Order establishes a schedule for the construction activities associated with the proposed WWTP upgrades and the effluent pipeline and for incremental relocation of the mill's discharge form Elevenmile Creek to the wetland tract. IP is given 24 months to complete construction activities and begin operation of the new facilities. At least 25 percent of the mill's effluent must be diverted to the wetland tract. At least 25 percent of the effluent is to be diverted to the wetland tract when the new facilities begin operations. The volume of effluent diverted to the wetlands is to increase another 25 percent every three months thereafter so that three years after issuance of the permit 100 percent of the effluent is being discharged into the wetland tract and there is no longer a discharge at D-001 into Elevenmile Creek.7 The proposed Consent Order establishes interim effluent limitations that would apply immediately upon the effective date of the Consent Order and continue during the 24-month construction period when the mill will continue to discharge into Elevenmile Creek. Other interim effluent limits would apply during the 12-month period following construction when the upgraded WWTP would be operating and the effluent would be incrementally diverted from Elevenmile Creek to the wetland tract. A third set of interim effluent limits would apply at D-003 when 100 percent of the discharge is into the wetland tract. They include the interim limits for specific conductance, pH, DO, color, and turbidity established through the experimental use of wetland exemption. The proposed Consent Order requires IP to submit a report within six months with the results of the 2004 transparency study. The Department must be satisfied that the study shows the transparency standard will not be violated before the wetlands can be used for the discharge. This report has already been submitted to the Department, but the Department has not yet completed its review of the report. Nevertheless, it was admitted into the record as IP Exhibit 79. The proposed Consent Order provides that, in the event IP's does not receive treated sanitary wastewater from the planned ECUA facility, IP will notify the Department and submit an alternate compliance plan to the Department for the Department's approval. The submittal and approval of an alternate compliance plan would extend the time for compliance with water quality standards by another six months. The Department amended the proposed Consent Order at the conclusion of the hearing to provide for notice to the public and an opportunity for persons to object to the Department's action on any alternate compliance plan. The Consent Order requires a "Plan of Action" to determine "whether there remains a critical period for ortho-phosphate loading to lower Elevenmile Creek and Perdido Bay." The proposed Consent Order requires IP to submit within 97 months (which would allow for five years of discharge to the wetland tract) a final report on whether there has been significant adverse impacts in the wetlands and Tee and Wicker Lakes resulting from the discharge of effluent pursuant to the interim limits for pH, DO, specific conductance, turbidity, and color. If the NSAI analysis shows no significant adverse impact has occurred, the proposed Consent Order contemplates that IP or the Department would establish alternative water quality criteria that would apply permanently in the wetland tract. IP is required by the Consent Order to submit quarterly progress reports of its progress toward compliance with the required corrective actions and deadlines. The Consent Order imposes a "stipulated penalty" of $500 per day for noncompliance with its terms. It also contains a statement that a violation of its terms may subject IP to civil penalties up to $10,000 per day. The Principal Factual Disputes A. The Evidence in General Much of the water quality and biological data presented by Petitioners were limited in terms of the numbers of samples taken, the extent of the area sampled, and the time period covered by the sampling. Much of the expert testimony presented by Petitioners was based on limited data, few field investigations, and the review of some, but not all relevant permit documents.8 On the other hand, the Livingston studies represent perhaps the most complete scientific evaluation ever made of a coastal ecosystem. Even Dr. Lane called the Livingston studies "huge" and "amazing." Therefore, with regard to the factual issues raised by Petitioners that involved scientific subjects investigated in the Livingston studies, Petitioners' data and the expert opinions based on those data were generally of much less weight than the data and conclusions of the Livingston studies. However, the Livingston studies did not address all of the factual issues in dispute. Some of the evidence presented by Petitioners regarding historical water quality conditions in Perdido Bay and Elevenmile Creek was lay testimony. The lay testimony was competent and sufficient to prove the existence of environmental conditions that are detectable to the human senses, such as an offensive smell, a dark color, or a sticky texture. Historical Changes in Perdido Bay Petitioners claim that, before the Cantonment mill began operations in the 1940s, Perdido Bay was a rich and diverse ecosystem and a beautiful place for swimming, fishing, boating, and other recreational activities. Petitioners blame the mill effluent for all the adverse changes they say have occurred in Perdido Bay. Petitioners claim that the water in Perdido Bay was much clearer before the mill was built. James Lane, who has lived on the Bay for 65 years, said he began to notice in the late 1940s that the water was becoming dark and filled with wood fibers. Mr. Lane recalls that there used to be an abundance of fish in the Perdido Bay, including croakers, pinfish, flounder, redfish, minnows, and catfish. Now Mr. Lane sees few of these fish in the Bay and he believes the remaining fish are unfit to eat because they look diseased to him. Mr. Lane said there were extensive areas of sea grasses in the Bay which supported large numbers of shrimp, crabs, and mussels, but these grasses are now gone. The Lane family used to enjoy swimming in Perdido Bay but stopped swimming years ago because the water felt sticky and often had a brown foam or scum on the surface. Mr. Lane and others members of FOPB claim to have gotten infections from swimming in the Bay. Mr. Lane and other witnesses described the odor of Elevenmile Creek near the mill as unpleasant and, at times, offensive. They consider the Creek to be too polluted for swimming. Donald Ray, who has been a Department biologist for 30 years, said he has received many complaints from citizens about the conditions in Perdido Bay. He said the foam that occurs in Perdido Bay is not natural foam, but one that persists and leaves a stain on boats. On the other hand, it is Dr. Livingston's opinion that the ecological problems of Perdido Bay are due primarily to the opening of Perdido Pass around 1900. The opening of the pass allowed Gulf waters to enter Perdido Bay and caused salinity stratification in the Bay, with marine waters on the bottom and fresh water from the Perdido River, Elevenmile Creek, and other tributaries on the top. The stratification occurs regularly in the lower Bay, but only during low flow conditions in most of the upper Bay, Perdido River, and Elevenmile Creek. It restricts DO exchange between the upper and lower water layers and results in low DO levels in the lower layer. Low DO, or "hypoxia," is the primary cause of reduced biological diversity and productivity in Perdido Bay. Dr. Livingston's initial study of the Perdido Bay system (1988-91) included an investigation of historical conditions, using documents and maps, anecdotal statements of area residents, as well as historic water quality and sediment data. Dr. Livingston found general agreement from most sources that: [P]rior to the 1940s, the various rivers and the bay in the Perdido Basin were quite different from what they are today. Eyewitness accounts from 1924 indicate a bay that was clear and "bluish" in color; the bottom could be seen at depths of five feet. According to resident' accounts, seagrasses grew from Garth Point to Witchwood; the grassbeds provided cover for many shrimp that were taken at the time. Flounder were taken with gigs and crabs were taken with hand nets. According to these accounts, the water from the various rivers and creeks in the area was relatively clear, and white sand/gravel bottoms were dominant forms of habitat in the freshwater and estuarine systems. The water was tea- colored but clear. Redfish, trout, blue crabs, shrimp, and mullet were abundant. * * * [T]hrough the early 1900s, the Elevenmile Creek was said to be crystal clear with soft white sand and good fishing. * * * According to various reports, in the early 1950s, the waters of Elevenmile Creek turned black, with concentrations of foam observed floating on the surface. By 1986, more than 28 million gallons of largely untreated effluent was flowing into the Elevenmile Creek- Perdido Bay system each day. Experiments by the Florida Game and Fresh Water Fish Commission had shown that the creek waters were lethal. The Florida Board of Health reported that Elevenmile Creek was "grossly polluted" and that Perdido Bay had been "greatly degraded within the 1.5 mile radius of where Elevenmile Creek dumped into the bay." Nevertheless, Dr. Livingston discounted much of this historical record, especially with regard to the belief that the mill's effluent had adversely affected Perdido Bay, because it was not based on what he considers reliable scientific data. He found "little evidence in the long- term sediment record of a direct response to historical activities of the pulp and paper mill, suggesting that the flushing capacity of Perdido Bay quickly diluted effluents that enter Perdido Bay from Elevenmile Creek." The evidence is persuasive that the salinity stratification in Perdido Bay is a major cause of low DO in the Bay.9 However, the stratification does not explain all of the observed changes in water quality, biological productivity, and recreational values. The stratification does not account for the markedly better conditions in the Bay that existed before the Cantonment paper mill began operations. The Livingston studies confirmed that when nutrient loadings from the mill were high, they caused toxic algae blooms and reduced biological productivity in Perdido Bay. As recently as 2005, there were major toxic blooms of heterosigma in Tee and Wicker Lakes caused by increased nutrient loading from the mill. Other competent evidence showed that the mill's effluent has created nuisance conditions in the past, such as foam and scum, which adversely affected the recreational values of these public waters. Some of the adverse effects attributable to the mill effluent were most acute in the area of the Bay near the Lanes' home on the northeastern shore of the Bay, because the flow from the Perdido River tends to push the flow from Elevenmile Creek toward the northeastern shore. Petitioners were justified in feeling frustrated in having their concerns about the adverse impacts of the mill's effluent discounted for many years, and in having to wait so long for an effective regulatory response. However, with regard to many of their factual disputes, Petitioners' evidence lacked sufficient detail regarding the dates of observations, the locations of observations, and in other respects, to distinguish the relative contribution of the mill effluent from other factors that contributed to the adverse impacts in the Bay, such as salinity stratification, natural nutrient loading from the Perdido River and other tributaries, and anthropogenic sources of pollution other than the paper mill.10 Petitioners generally referred to the mill effluent and its impacts to Perdido Bay as if they have been relatively constant for 65 years. The Livingston studies, however, showed clearly that the mill effluent and its impacts, as well as important factors affecting the impacts, such as drought, have frequently changed. Focusing on the fact that the average daily BOD loading allowed under the proposed permit would be same as under the 1989 TOP (4,500 ppd), Petitioners remarked several times at the final hearing that the proposed permit for the mill was no different than the existing permit. According to Petitioners, if the mill is allowed to operate under the proposed permit, one can predict that the future adverse impacts to Perdido Bay will be the same as the past adverse impacts. However, the 1989 TOP and the proposed permit are very different. Therefore, it cannot be assumed that the impacts would be the same. Petitioners' evidence was generally insufficient to correlate past adverse impacts to Perdido Bay with the likely impacts that would occur under the proposed permit. In contrast, that was the focus of the Livingston studies. Development of the WQBELs Whether Perdido Bay is an Alluvial System and Whether Elevenmile Creek is a Blackwater Stream Alluvial systems are generally characterized by relatively high nutrient inputs from tributaries and associated wetlands that provide for high biological productivity in the receiving bay or estuary. Petitioners disagree with Dr. Livingston's characterization of the Perdido Bay system as an alluvial system. Petitioners presented the testimony of Donald Ray, a Department biologist, who said that the Perdido River is not an alluvial river and the natural nutrient loadings to Perdido Bay are less than would occur in an alluvial system. Although it is curious that two experienced biologists cannot agree on whether Perdido Bay is part of an alluvial system, the dispute is immaterial because it was not shown by Petitioners that any of the four proposed Department authorizations is dependent on the applicability of the term "alluvial." The WQBELs developed by Dr. Livingston, for example, were not dependent on a determination that Perdido Bay meets some definition of an alluvial system, but were based on what the data indicated about actual nutrient loadings into Perdido Bay and the Bay's ecological responses to the loadings. If the dispute is not immaterial, then Dr. Livingston's opinion that Perdido Bay is part of an alluvial system is more persuasive, because he has greater experience and knowledge of the coastal bay systems on the Florida Panhandle than does Mr. Ray. Petitioners also take exception to Dr. Livingston's characterization of Elevenmile Creek as a blackwater creek. Petitioners claim Elevenmile Creek is naturally clear to "slightly tannic" stream. This dispute, however, is also immaterial because the proposed permit calls for the termination of the mill's discharge to Elevenmile Creek, including its contribution of color to the Creek. Petitioners assert that Dr. Livingston's characterizations of Perdido Bay as an alluvial system and Elevenmile Creek as a blackwater creek show he is biased and that his "overall analysis" lacks credibility. Dr. Livingston's opinions on these points do not show bias nor compromise the credibility of his overall analysis of the Perdido Bay system, which is actually the product of many scientists and based on 18 years of data.11 2. Selection of 1988 and 1989 Mill Loadings as a Benchmark for the WQBELs Generally, the Department establishes effluents limits for nutrients based on Chlorophyl A analysis. However, the Livingston studies showed that Chlorophyl A was not significantly associated with plankton blooms in Perdido Bay. Therefore, the Department accepted Dr. Livingston's recommendation to base the WQBELs for nutrients on the nutrient loading from the mill in 1988 and 1989, which the Livingston studies showed were good years for Perdido Bay with respect to its biological health. Phytoplankton are a fundamental component of the food web in Perdido Bay. The number of phytoplankton species is a sensitive indicator of the overall ecological health of the Bay. The Livingston studies showed that the loadings of ammonia and orthophosphate from the mill had a direct effect on the number of phytoplankton species. In the years when the mill discharged high loadings of ammonia and orthophosphate, there were toxic algae blooms and reduced numbers of phytoplankton species. In 1988 and 1989, when the loadings of ammonia and orthophosphate were lower, there were no toxic algae blooms, and there were relatively high numbers of phytoplankton species. Petitioners dispute that 1988 and 1989 are appropriate benchmarks years for developing the WQBELs because Petitioners claim there were high nutrient loadings and algae blooms in those years. Mr. Ray testified that the Department received citizen complaints about algae blooms in those years. Dr. Livingston's analysis was more persuasive, however, because it distinguished types of algae blooms according to their harmful effect on the food web and was based on considerably more water quality and biological data. Petitioners also presented water quality data collected from 1971 to 1994 by the Bream Fishermen Association at one sampling station in the northeastern part of Perdido Bay, which indicate that in 1988 and 1989, the concentrations of nutrients were sometimes high. The proposed nutrient WQBELs were derived from data about the actual response of the Perdido Bay ecosystem over time to various inputs. The sampling data from the Bream Fishermen Association were not correlated to ecosystem response and, therefore, are insufficient to refute Dr. Livingston's evidence that 1988 and 1989 were years of relatively high diversity and productivity in Perdido Bay. Furthermore, nutrients loadings would be reduced under the proposed permit. 3. DO and Sediment Oxygen Demand The parties agreed that sediment oxygen demand (SOD) is a major reason for the low DO in Perdido Bay in areas where there is salinity stratification. SOD is caused by the bacterial degradation of particulate organic matter that settles to the bottom. SOD decreases DO in the lower water layer, but also can cause a reduction of DO in the surface layer. Low DO has substantially reduced the biological productivity of Perdido Bay. Thomas Gallagher, an environmental engineer and water quality modeling expert, showed that even without the mill discharge, DO in the bottom waters of Perdido Bay would fall below the applicable Class III water quality standard of 5 mg/l. Low DO conditions are now a "natural" characteristic of the Bay, usually occurring during summer and early fall when freshwater flows are low and temperatures are high. At these times, surface water DO levels are usually above the state standard, but DO in the bottom waters usually range between 1.0 and 2.0 mg/l. Petitioners claim that the dominant source of the sediment in Perdido Bay is the carbon and nutrient loading in the mill's effluent that flows into the Bay from Elevenmile Creek. Mr. Ray, who sampled sediments in Perdido Bay over several years for the Department, believes that the mill effluent is the main source of the sediment and, consequently, the sediment oxygen demand. Dr. Livingston did extensive sediment analyses in Perdido Bay. He compared the data with sediment data from other bays on the Florida Panhandle. It is Dr. Livingston's opinion that the mill effluent contributes little to the sediments or SOD in Perdidio Bay. His initial three-year study concluded: [T]he hypoxic conditions of Elevenmile Creek are due, in part, to mill discharges. However, low dissolved oxygen conditions at depth in Perdido Bay are not due to the release of mill effluents from Elevenmile Creek, and can actually be attributed to a long history of human activities that include alteration of the hydrological interactions at the gulfward end of the estuary. The entry of saline water from the Gulf and the resulting stratification have been coupled with various forms of human development that release carbon, nitrogen, and phosphorus compounds into the estuary. The landward movement of high-salinity water from the Gulf of Mexico, laden with various types of oxygen-consuming compounds from various sources, together with oxygen demand from sediments to the lower water column that is isolated from reaeration due to salinity stratification, are thus responsible for a large portion of the observed hypoxic conditions at depth in Perdido Bay. [The paper mill] is responsible for a relatively small amount of these oxygen-consuming effects. In East Bay, which is a part of Escambia Bay and a relatively pristine system, there was SOD that caused DO to fall below standards in the lower water layer. Dr. Livingston also found severe oxygen deprivation at times in the lower waters of the Styx River and Perdido River, which do not receive mill effluent. Dr. Livingston believes the low DO that occasionally occurs in these rivers is due to agricultural runoff, urban discharges, and natural organic loading from adjacent wetlands. There was extensive evidence, some of which was presented by Petitioners, showing that the mill loadings of carbon and nutrients are less than the loadings from the Perdido River. Mr. Gallagher concluded that the sediment in the Bay is mostly "terrestrial carbon," and not from the mill's effluent. His water quality modeling work determined that the mill's effluent reduced bottom layer DO by about 0.1 mg/l. Dr. Lane believes that the organic solids in the mill's effluent are accumulating in Perdido Bay sediments, but Mr. Gallagher pointed out that degrading solids cannot accumulate because they are degrading. In addition, Mr. Gallagher said that logic dictates that solids that have not settled out after spending several days in the settling basins of IP's WWTP are not going to readily settle in the more turbulent environment of Perdido Bay. Some of the solids are oxidizing or being transported into the Gulf. Mr. Gallagher determined that in summer and late fall, 60 percent of the water in the bottom layer in the upper Bay is from the Gulf and almost all the rest is from the Perdido River. He believes only 0.1 to 2.0 percent of the water in the bottom layer is mill effluent. Dr. Livingston responded to the BOD and carbon issues that "these Petitioners raised over the years" by investigating them as part of the Livingston studies. He found no relationship between loading and DO. Dr. Livingston concluded that the mill was not having much effect on SOD. Dr. Livingston and Mr. Gallagher referred to a carbon isotope study of the sediment in Perdido Bay by Coffin and Cifuentes. The isotope study was a part of the initial three-year Livingston study entitled "Ecological Study of the Perdido Bay Drainage System." The study identified a unique carbon isotope in the mill's effluent and looked for traces of the isotope in the sediments of Perdido Bay. Very little of the carbon isotope was found in the sediments, suggesting that the mill's effluent was not contributing much to the sediments. The carbon isotope study was not offered into evidence. Petitioners assert that the isotope study is hearsay and cannot be used to support a finding of fact.12 However, Dr. Livingston's opinion about the sources of the sediment was not based solely on the isotope study. The isotope study was consistent with his other studies and with Mr. Gallagher's water quality modeling analysis. Therefore, the conclusions of the isotope study serve to support and explain Dr. Livingston's expert opinion that the mill effluent is not the primary source of the sediment and low DO in Perdido Bay. Dr. Livingston summarized his opinion regarding DO and SOD as follows: "all of these lines of evidence, from all the bays that I have worked in and from them scientific literature and from our own studies, every line of evidence simply eliminated the pulp mill as the primary source of the low dissolved oxygen in the bay." 4. Long-term BOD BOD is a measurement of the oxygen demand exerted by the oxidation of carbon, nitrogen, and the respiration of algae. A five-day BOD analysis is the standard test used in the regulatory process. The use of the standard five-day BOD measurement is not restricted to organic material that is expected to completely degrade in five days. Five days is simply the time period selected to standardize the measurement. For example, the five-day BOD analysis is used in the regulation of domestic wastewater even though most of the organic material in domestic wastewater takes about 60 days to degrade and would exert an oxygen demand throughout the 60 days. It was undisputed that paper mill effluent will continue to consume DO after five days. One estimate given was that it would take 100 days to completely degrade. Some of the naturally occurring organic material flowing into Perdido Bay from the Perdido River and Gulf of Mexico would also include material with long-term BOD. Petitioners claim that long-term BOD analysis is essential to determine the true impacts of the mill's effluent on Perdido Bay, but they failed to show that the Livingston studies did not consider long-term BOD.13 The evidence shows that Dr. Livingston's studies accounted for DO demand in all its forms and for any duration. Dr. Livingston's studies focused on the response of Perdido Bay's food web to nutrients and various other inputs as they changed over time. If long-term BOD was having an adverse effect on the food web, the Livingston studies were designed to detect that effect. Dr. Livingston's opinion is that long-term BOD is not a significant problem for Perdido Bay because the Bay is part of a dynamic system and the sediments are regularly flushed out or otherwise recycled in a matter of a few months, not years.14 5. Carbon Dr. Lane, who is a marine biologist, believes a major reason for low DO in Perdido Bay is "organic carbonaceous BOD." However, Dr. Lane presented no evidence other than statements of the theoretical process by which carbon from the mill would cause low DO in the Bay. She presented no scientific data from Perdido Bay to prove her theory.14 Dr. Livingston said that 16 years of studies in the Bay have found DO and carbon to be "totally uncorrelated." Other Water Quality Issues 1. Toxicity Petitioners allege that the mill effluent has had occasional problems passing toxicity tests. Un-ionized ammonia is the likely cause, and the reduction of un-ionized ammonia in the proposed permit and the distribution of the effluent over the wetland tract should prevent toxicity problems from recurring. Dr. Livingston examined tissue samples from various fish and invertebrates and found low levels of bioconcentrating chlorine compounds in Perdido Bay that he believes were "probably associated with discharges from the Pensacola mill." Although they are toxic substances, Dr. Livingston found no diseased organisms and no evidence of food web magnification of these potentially bioaccumulable compounds. Mr. Ray testified that Perdido Bay was the worst of all the bays he has studied in terms of high sediment metals. Most of his sediment sampling was done in 1977 through 1983, years before the Livingston studies got started. His knowledge about subsequent years was based on only two samples, one in 1988 and another in 2005.16 Dr. Lane did an analysis of 12 sediment samples in Perdido Bay, Perdido River, and Elevenmile Creek in 1999 and concluded that "Eleven Mile Creek appears to be the source of all elevated levels [of metals] except silver." The Livingston studies included toxics analysis of Perdido Bay sediments, including metals, dioxin, and other chlorinated organic compounds. Dr. Livingston testified that metal concentrations in the sediments of Elevenmile Creek did not differ from the metal concentrations in the Perdido River and other streams in the area. The concentrations were not significantly different from concentrations in other bays he has studied that do not have a paper mill discharge. 2. Mutagenic Compounds Petitioners claim that there are chemicals in paper mill effluent that are mutagenic and are causing changes in the sex of fish. They introduced an exhibit from the Department's exhibit list (DEP Exhibit 38) that discussed investigations of effluent from the Cantonment mill and other Florida paper mills which found abnormally high testosterone levels and related mutations in female Gambusia fish. The most recent such study16 implicates androgens produced by the microbial degradation of natural chemicals in the trees pulped at the mills, especially softwood trees (pines), as the cause. Petitioners believe IP's proposal to begin using 100 percent pine at the Cantonment mill could cause mutations in fish and other animals exposed to the mill's effluent. Although IP and the Department are aware of the sex change studies, there was no evidence presented that the subject was investigated or addressed by them in the permitting process. DEP Exhibit 38 is hearsay and no non-hearsay evidence was presented on the issue of mutagenic compounds in the mill's effluent. Therefore, no finding of fact in this Recommended Order can be based on the data and analysis in DEP Exhibit 38.18 Furthermore, Petitioners did not raise the issue of mutagenic compounds in the mill's effluent discharge in their petitions for hearing or in the pre-hearing stipulation.19 Antidegradation Policy Petitioners claimed the proposed permit violated the antidegradation policy for surface waters established in Florida Administrative Code Rule 62-302.300(1). An element of that policy is to require, for any discharge that degrades water quality, a demonstration that the degradation is necessary or desirable under circumstances which are clearly in the public interest. Florida Administrative Code Rule 62-4.242(1)(a) contains a list of factors to be considered and balanced in applying the antidegradation policy. These include consideration of whether the proposed project would be beneficial to public health, safety, or welfare and whether the discharge would adversely affect the, conservation of fish and wildlife, and recreational values. The greater weight of the evidence supports the position of IP and the Department that the proposed discharge to the wetland tract would be an improvement over the existing circumstances. However, as discussed below, there was an insufficient demonstration that the discharge would not cause significant adverse impact to the biological community within the wetland tract, and there was an insufficient demonstration that the Perdido River OFW would not be significantly degraded. Without sufficient demonstrations on these points, it is impossible to find that the degradation has been minimized. Petitioners did not prove that the proposed project was not in the public interest, but the burden was on IP to show the opposite. Because IP did not make a sufficient demonstration regarding potential adverse impacts on the biological community within the wetland tract and on the Perdido River OFW, IP failed to prove compliance with Florida's antidegradation policy. Perdido River OFW Florida Administrative Code Rule 62-302.300(2) contains the standards applicable to OFWs and prohibits a discharge that significantly degrades an OFW unless the proposed discharge is clearly in the public interest or the existing ambient water quality of the OFW would not be lowered.20 Petitioners contend that the water quality of the Perdido River would be significantly degraded by the mill's effluent under the authorizations. Mr. Gallagher's modeling analysis predicted improved water quality in the Perdido River for DO and several other criteria over the conditions that existed in 1979, the year the river was designated as an OFW. However, the modeling also predicted that the discharge would reduce the DO in the river (as it existed in 1979) by .01 mg/l under unusual conditions of effluent loading at the daily limit (based on a monthly average) during a drought. Mr. Gallagher's modeling indicated that a very small (less than 0.1 mg/l) reduction in DO in the surface water of the lower Perdido River would occur as a result of the proposed project. He considered that to be an "insignificant" effect and it was within the model's range of error. However, IP made the wrong comparisons in its modeling analysis to determine compliance with the OFW rule, Florida Administrative Code Rule 62-4.242(2). Mr. Gallagher used the model to compare the DO levels in the Perdido River that would result from the mill's discharge of BOD at the proposed permit limit of 4,500 ppd with the predicted DO levels that would have existed in 1979 if St. Regis was discharging 5,100 ppd of BOD. IP should have compared the DO levels resulting from the proposed permit with the actual DO levels in 1979, or at least the DO levels that the model would have simulated using actual BOD loadings by St. Regis in 1979. The DO levels that would have existed in 1979 if St. Regis had discharged 5,100 ppd of BOD are irrelevant. No DO data from 1979 were presented at the hearing and no explanation was given for why DO data for 1979 were not used in the analysis. No evidence was presented that St. Regis discharged 5,100 ppd of BOD as a monthly average in 1979.21 It might have discharged substantially less.22 Petitioners did not prove that the proposed permit would significantly degrade the Perdido River, but the burden was on IP to show the opposite. Because the wrong anti-degradation comparison was made, IP failed to provide reasonable assurance that the Perdido River would not be significantly degraded by the proposed discharge. The Experimental Use of Wetlands Exemption Petitioners claim that IP did not demonstrate compliance with all the criteria for the experimental use of wetlands exemption. There are seven criteria set forth in Florida Administrative Code Rule 62-660.300(1)(a) that must be met to qualify for the exemption. IP is seeking a waiver from two of the criteria and those will be discussed later in this Recommended Order. Impact on the Biological Community a. In General Florida Administrative Code Rule 62- 660.300(1)(a)1 requires a demonstration that "the wetlands ecosystem may reasonably be expected to assimilate the waste discharge without significant adverse impact on the biological community within the receiving waters." Dr. Nutter used a "STELLA" wetland model to predict the effects of discharging mill effluent to the wetland tract. The STELLA model was programmed to evaluate the "water budget" for the wetland tract, as well as simulate the fate of nitrogen, phosphorus, and total dissolved solids (TDS). Petitioners contend that the STELLA model is too limited to adequately assess potential adverse impacts on the biological community, but the model was not the sole basis upon which Dr. Nutter formed his opinions. He also relied on relevant scientific literature, his general knowledge of wetland processes, and on his 40 years of experience in land treatment of wastewater. The STELLA model predicted that there would be about a 10 percent reduction in nitrogen and phosphorus. Dr. Nutter testified that that figure was a conservative prediction and the scientific literature suggests there could be a greater reduction. Wetlands are effective in processing TSS and BOD. Dr. Nutter ran the model with the proposed permit limits and the model predicted 90 to 95 percent BOD removal before the effluent reached berm 4. Dr. Nutter expected pH levels to be in the range of background levels in the wetlands, which vary between 6.5 and 8.0.23 Dr. Nutter predicts that in high flow conditions, there will be more DO in the water flowing from the wetlands into Tee and Wicker Lakes. During low flow conditions, he predicts no change in the DO level. Background DO levels in the wetland tract now range between and 5.0 mg/l. Mr. Gallagher's water quality modeling for Perdido Bay assumed that the water flowing from the wetland tract would have a DO level of 2.0 mg/l, which Dr. Nutter believes this is a conservative estimate, meaning it could be higher. Specific Conductance A fundamental premise of the relocated discharge is that it solves the mill's decades-long failure to meet the stricter water quality standards applicable in the fresh waters of Elevenmile Creek because the new receiving waters would be marine waters. However, the majority (about 70 percent) of the wetland tract is a freshwater wetland. The tidal influence does not reach above berm 4 in the wetland tract. Before the mill's effluent reaches marine waters, it would be distributed over the entire freshwater portion of the wetland tract. Dr. Livingston explained that, but for the mill's discharge, minnows and other small "primary" freshwater fish species would be found in Elevenmile Creek. The primary fish cannot tolerate the mill's discharge because the high levels of sodium chloride and sulfide (specific conductance) cause osmoregulatory problems, disrupting their blood metabolism and ion regulation. High conductivity also eliminates sensitive microinvertebrates. Because Tee and Wicker Lakes are in the tidally influenced, southern portion of the wetland tract, the fish and other organisms in the lakes are polyhaline, which means they are adapted to rapid changes in salinity, temperature and other habitat features. That is not true of the organisms in the freshwater area of the wetland tract. A constructed wetlands pilot project was built in 1990 at the Cantonment mill. The initial operational phase of the pilot project was July 1991 through June 1993. A second phase was conducted for just three months, from September 1997 through December 1997. The pilot project generated some information about "benthic macroinvertebrate diversity," which was "low to moderate." In addition, there were "observations" made of "three amphibian species, three reptile species, approximately 31 bird species, three fish species that were introduced, and two mammal species." The information generated by the pilot project is ambiguous with respect to the effect of the effluent on fish and other organisms attributable to the specific conductance of the effluent, indicating both successes and failures in terms of survival rates. Moreover, the data presented from the pilot wetland project lacks sufficient detail, both with respect to the specific conductivity of the effluent applied to the wetlands and with respect to the response of salt-intolerant organisms to the specific conductivity of the effluent, to correlate the findings of the pilot project with the proposed discharge to the wetland tract. Freshwater wetlands do not have naturally high levels of specific conductance. The specific conductance in the wetland tract is 100 micromhos/cm or less.24 The proposed interim limit for specific conductance for the discharge into the wetland tract is "2,500 micromhos/cm or 50% above background, whichever is greater." Using total dissolved solids (TDS) as a surrogate for analyzing the effects on specific conductance, Dr. Nutter predicted that average TDS effluent concentrations would only be reduced by 1.0 percent.25 His prediction is consistent with the literature on the use of wetlands for wastewater treatment, which indicates wetlands are not effective in reducing TDS and specific conductance. The wetland tract would not assimilate TDS in mill's effluent. The potential exists, therefore, for the discharge to cause specific conductance in the freshwater area of the wetland tract to reach levels that are too high for fish and other organisms which can only live, thrive, and reproduce in waters of lower specific conductance. It was the opinion of Barry Sulkin, an environmental scientist, that the "freshwater community" would be adversely impacted by the salts in the effluent. Although the freshwater area of the wetland tract is not dominated by open water ponds, creeks, and streams,26 the evidence shows that it contains sloughs, creeks, and other surface water flow. No evidence was presented about the biological community associated with the sloughs, creeks, and other waters in the wetland tract, other than general statements about the existing plants and the trees that are being planted. Petitioners did not prove that granting the exemption would cause significant adverse impact to the biological community in the freshwater area of the wetland tract, but it was IP's burden to affirmatively demonstrate the opposite. Because IP did not adequately address the impact of increased specific conductance levels on fish and other organisms in the freshwater area of the wetland tract, IP did not provide reasonable assurance that the proposed discharge would be assimilated so as not to cause significant adverse impact on the biological community within the wetland tract. Tee and Wicker Lakes When the Department issued the proposed exemption order, it did not have sufficient data and analyses regarding Tee and Wicker Lakes to determine with reasonable confidence that these waterbodies would not be adversely impacted by the proposed discharge. A transparency study of the lakes, which IP introduced as an exhibit at the final hearing, had not previously been reviewed by Department staff. Dr. Livingston is still developing data and analyses for the lakes to use in the NSAI analysis. The proposed NSAI monitoring plan states that one of its objectives is to determine the "ecological state" of the tidal ponds, including whether the ponds "could comprise an important nursery area for estuarine populations." In addition, the monitoring is to determine "the normal distributions of salinity, temperature, color, and dissolved oxygen" in the tidal ponds. These are data that must be known before a determination is possible that the discharge would not have a significant adverse impact on the biological community associated with the lakes. Petitioners did not prove that granting the exemption would cause significant adverse impact to the biological community of Tee and Wicker Lakes, but it was IP's burden to affirmatively demonstrate the opposite. Because insufficient data exists regarding baseline conditions in Tee and Wicker Lakes, IP did not provide reasonable assurance that the proposed discharge would not cause significant adverse impact on the biological community within the wetland tract. 2. Public Interest and Public Health Florida Administrative Code Rule 62- 660.300(1)(a)2. requires the applicant to demonstrate that "granting the exemption is in the public interest and will not adversely affect public health or the cost of public health or other related programs." Public Interest Petitioners made much of a statement by Mr. Evans that the public interest consideration in this permit review was “IP’s interest”. Petitioners claimed that this statement was an admission by the Department that it gave no consideration to the public interest. However, in context, Mr. Evan's statement was not such an admission. Moreover, Florida Administrative Code Rule 62-302.300(6) expressly provides that the public interest is not confined to activities conducted solely for public benefits, but can also include private activities conducted for private purposes. The proposed exemption order does not directly address the public interest criterion, but it notes that "existing impacted wetlands will be restored." In IP's application for the exemption, it states that the exemption would "contribute to our knowledge of wetlands in general and to the refinement of performance guidelines for the application of pulp mill wastewater to wetlands." Petitioners dispute that the wetland tract is being restored. The evidence shows that some restoration would be accomplished. The natural features and hydrology of the tract have been substantially altered by agriculture, silviculture, clearing for pasture, ditching, and draining. The volume of flow in the discharge would offset the artificial drainage that occurred. A mixture of hardwood tree species would be planted, which would restore more of the diversity found in a natural forested wetland. However, an aspect of the project that could substantially detract from the goal of restoration is the transformation of the freshwater wetlands to an unnatural salty condition. Dr. Nutter said that the salt content of the mill's effluent was equivalent to Gatorade, but for many freshwater organisms, that is too salty. Another public benefit of the exemption that was discussed at the final hearing is that it would allow IP to relocate its discharge from Elevenmile Creek and thus end its adverse impacts to the Creek. That public benefit is not given much weight because IP has not shown that its adverse impacts to Elevenmile Creek cannot be eliminated or substantially reduced by decreasing its production of paper products. The evidence shows only that IP has attempted to solve its pollution problems through environmental engineering.27 A sufficient public interest showing for the purpose of obtaining the experimental use of wetlands exemption should not be a rigorous challenge if all the other exemption criteria are met, because that means the proposed wetland discharge was shown to have no harmful consequences. The public interest showing in this proceeding was insufficient, however, because the other exemption criteria were not met and there is a reasonable potential for harmful consequences. Public Health Petitioners raised the issue of the presence of Klebsiella bacteria, which can be a public health problem when they occur at high levels. The more detection of Klebsiella, however, does not constitute a public health concern. Petitioners did not show that Klebsiella bacteria exist in the mill's effluent at levels that exceed applicable water quality standards. Petitioners also did not present competent evidence about the likely fate of Klebsiella bacteria in the proposed effluent distribution system. Dr. Lane's statement that Klebsiella bacteria might be a problem is not sufficient to rebut IP's prima facie showing that the proposed permit will not cause or contribute to a violation of water quality standards applicable to pathogenic bacteria. Petitioners also point to past incidents of high total coliform concentrations in Elevenmile Creek in support of their contention that the proposed exemption poses a risk to public health. However, these past incidents in Elevenmile Creek are not sufficient to prove that fecal coliform in the effluent discharged to the wetland tract will endanger the public health. IP proposes to restrict access to the wetland distribution system. Furthermore, the fate of bacteria in the wetlands is much different than in the Creek. The more persuasive evidence is that the wetland tract would destroy the bacteria by solar radiation and other mechanisms so that bacteria concentrations in waters accessible by the public would not be at levels which pose a threat to public health. Protection of Potable Water Supplies and Human Health Florida Administrative Code Rule 62- 660.300(1)(a)5. requires the applicant for the exemption to demonstrate that "the presently specified criteria are unnecessary" to protect potable water supplies and human health, which presupposes that the applicant has applied for an exemption from water quality criteria applicable to human health. IP has not requested such an exemption and, therefore, this particular criterion appears to be inapplicable. Even if it were applicable, the evidence does not show that the effluent would cause a problem for potable water supplies or human health. 4. Contiguous Waters Florida Administrative Code Rule 62- 660.300(1)(a)6. requires a showing that "the exemption will not interfere with the designated uses of contiguous waters." Contiguous waters, for the purpose of this criterion, would be Elevenmile Creek, Perdido Bay, and the Perdido River. Petitioners argue that Tee and Wicker Lakes should be considered contiguous waters for the purpose of this criterion of the exemption rule. However, Tee and Wicker Lakes are within the exempted wetland tract so they are not contiguous waters. Petitioners contend that IP failed to account for the buildup of detritus in the wetlands and its eventual export to Perdido Bay. Their contention is based primarily on the opinion of Dr. Kevin White, a civil engineer, that treatment wetlands must be scraped or burned to remove plant buildup. However, Dr. Nutter explained that periodic removal of plant material is needed for the relatively small "constructed wetland" treatment systems that Dr. White is familiar with, but should not be needed in the 1,464-acre wetland tract. Nevertheless, because IP did not provide reasonable assurances that the proposed permit and related authorizations would not significantly degrade the Perdido River OFW, IP failed to meet this particular exemption criterion regarding interference with contiguous waters. 5. Scientifically Valid Experimental Controls Florida Administrative Code Rule 62- 660.300(1)(a)6. requires a showing that "scientifically valid environmental controls are provided . . . to monitor the long-term effects and recycling efficiency." Petitioners' argument about this particular criterion was largely misplaced. The term "environmental controls" modifies the term "monitor" and connotes only that the experiment would be monitored in a manner that will generate reliable information about long-term effects and performance. For monitoring purposes, IP's proposed NSAI protocol is an innovative and comprehensive plan that complies with this exemption criterion. Petitioners' objections to the lack of sufficient information about Tee and Wicker Lakes is more appropriately an attack on the sufficiency of IP's showing that its discharge would not cause a significant adverse impact on the biological community within the wetland tract. That issue was discussed above. 6. Duration of the Exemption Petitioners argue that the exemption can not exceed five years in duration, but the time schedules established by the proposed Consent Order and proposed permit would allow the exemption to be in effect for nine years. The Department's exemption order states that the five years does not begin to run until IP begins to discharge effluent at D-003 into the wetland tract. The possibility that IP might seek to renew the exemption after five years does not make the exemption something other than a five-year exemption. The Department's action on the request to renew the exemption would be subject to public review and challenge by persons whose substantial interests are affected. The Waiver The proposed waiver order would excuse IP from compliance with the criteria in Florida Administrative Code Rule 62-660.300(1)(a)3. and 4., which require that public access and recreation be restricted in the area covered by the exemption for experimental use of wetlands. Without the waiver, the public would have to be excluded from Tee and Wicker Lakes. Section 120.542, Florida Statutes, requires a showing by the person seeking the waiver that the purpose of the underlying statute will be achieved by other means and the application of a rule would create a substantial hardship or would violate principles of fairness. Petitioners contend that IP failed to demonstrate substantial hardship. However, Petitioners do not want public access to Tee and Wicker Lakes restricted. The sole reason for their objection to the proposed waiver is apparently to thwart the issuance of the exemption. Section 120.542, Florida Statutes, defines "substantial hardship" as a demonstrated economic, technological, legal, or other type of hardship to the person requesting the waiver. In the proposed waiver order, the Department identifies IP's hardship as the possibility that denial of the waiver could result in denial of IP's NPDES permit and closure of the mill. The proposed waiver order then describes the number of jobs and other economic benefits of the mill that would be lost if the mill were closed. As discussed in the Conclusions of Law below, the Department's interpretation of Section 120.542, Florida Statutes, to accept a demonstration of hardship that is associated with denial of the waiver is mistaken. The statute requires that the hardship arise from the application of the rule. In this case, IP must demonstrate that it would suffer substantial hardship if it were required to restrict public access and recreation on Tee and Wicker Lakes. Petitioners claimed that IP has no authority to restrict the public from gaining access to Tee and Wicker Lakes because those are public waterbodies which the public has a right to enter and use. A substantial legal hardship for IP in complying with the exemption rule, therefore, is that compliance is impossible. The Consent Order 1. Compliance Schedule Subsections 403.088(2)(d) and (e), Florida Statutes, provide that no permit shall be issued unless a reasonable schedule for constructing, installing, or placing into operation of an approved pollution abatement facility or alternative waste disposal system is in place. Petitioners claim the time schedules for compliance are not reasonable. Petitioners presented no competent evidence, however, that the WWTP upgrades, pipeline construction, and other activities required by the proposed permit can be accomplished in a shorter period of time. One recurring theme in the Petitioners' case was that the adverse impacts associated with the continued discharge to Elevenmile Creek should not be allowed to continue, even for an interim period associated with construction of the WWTP upgrades and effluent pipeline. However, Petitioners also advocated the relocation of the discharge to the Escambia River, or to a "constructed wetlands." Both of these alternatives would have required a transition period during which the discharge to Elevenmile Creek would likely have continued. Furthermore, the Consent Order imposes interim limits on the discharge to Elevenmile Creek that would apply immediately upon issuance of the proposed permit. Although altered by the mill's effluent discharge, Elevenmile Creek is now a relatively stable biological system. The proposed permit would effectuate some improvement in the creek and Perdido Bay even during the construction phase. 2. Contingency Plan The proposed Consent Order includes a contingency plan in the event that the NSAI monitoring analysis shows adverse impacts to the biological community within the wetland tract. The plan provides for alternative responses including relocating all or part of the wetland discharge to Elevenmile Creek. Petitioners object to the plan, primarily because they contend it is vague. The provisions in the contingency plan for relocating all or part of the discharge from the wetland tract to Elevenmile Creek, appear to reflect a presumption that the negatives associated with continued discharge to the wetlands would outweigh the negatives associated with returning the discharge to Elevenmile Creek. However, it is not difficult to imagine scenarios where the harm to the biological community of the wetland tract is small in relationship to the harm to the biological community that might have reestablished itself in Elevenmile Creek. Because the selection of an alternative under the contingency plan requires the consideration of data and analyses associated with future events, it is impossible to know at this time whether future action taken by the Department and IP pursuant to the contingency plan would be reasonable. If the contingency plan is intended by the Department and IP to authorize future action when circumstances described in the plan are present, then the plan is too vague. On the other hand, there is adequate detail in the plan if the purpose of the plan is merely to establish a framework for future decision-making that would be subject to permit modification, public review and challenge. Clarification is needed. 2. Penalties Petitioners complained that the stipulated of $500 per day for violations of the proposed Consent Order is too small to provide a deterrent to a company of the size of IP. Petitioners are correct, but did not present evidence to show what size penalty would be appropriate.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Department of Environmental Protection enter a final order: Denying proposed revised NPDES Permit Number FL0002526- 001/001-IW1S; Disapproving revised Consent Order Number 04-1202; Denying IP's petition for authorization for the experimental use of wetlands; and Denying IP's petition for waiver. DONE AND ENTERED this 11th day of May, 2007, 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 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 11th day of May, 2007.
The Issue The issues in this proceeding involve whether the Respondent, St. Joe Paper Company ("St. Joe"), is entitled to a "dredge and fill permit" authorizing it to construct a marina for recreational boats, containing 84 boat slips, along the eastern shore of the St. Johns River in St. Johns County, Florida. Embodied within that general consideration are issues involving whether St. Joe, in the construction and operation of the marina, can comply with water-quality parameters embodied in Chapter 17- 3, Florida Administrative Code, for Class III waters of the State, Section 403.918(1), Florida Statutes, as well as the public interest standards of Section 403.918(2), Florida Statutes, and the standard concerning "cumulative impact" embodied in Section 403.919, Florida Statutes.
Findings Of Fact The applicant, St. Joe, seeks to construct and operate a recreational boat marina, consisting of a single, main pier, 12 feet wide and extending some 850 feet waterward in a westerly direction from the shoreline of the east bank of the St. Johns River in St. Johns County, Florida. The main pier will join a terminal pier extending approximately 575 feet in a general north/south direction parallel to the shoreline of the St. Johns River, perpendicular to and abutting the longer main pier. Extended in a landward or easterly direction from the terminal pier structure will be four (4) individual "finger piers" ranging from 119 to 305 feet in length. Located along the individual piers and along a portion of the main pier near the waterward end of it will be 84 slips for recreational-type boats. Additionally, a breakwater system will be suspended along the outer perimeter of the terminal pier and northernmost and southernmost individual piers in order to reduce wave action and its effect on boats in the interior of the marina. Additional details concerning the marina design and operation are contained in the findings of fact below. The Site The site of the proposed marina is on the eastern shore of the St. Johns River in St. Johns County, Florida. At that point, the St. Johns River is almost two miles wide, being approximately 10,000 feet from shoreline to shoreline. The proposed marina site encompasses approximately 1,100 linear feet of river bank frontage. All of the adjacent upland property is owned by St. Joe, and St. Joe owns extensive additional river frontage to the north and south of the marina site. The nearest properties not owned by St. Joe are located 3,500 feet to the north of the site and 1,500 feet to the south of the site. The site is located approximately two miles north of Hallowes Cove, a relatively pristine, diverse and productive marine habitat. The site is characterized, landward of the terminal end of the pier and waterward of the upland, by an unvegetated "near shore area or tidal zone" which extends approximately 50 feet from the mean high-water line of the river to the mean low-water line. Waterward of this zone and extending to a depth of approximately two feet is a system of grass beds, (vallisnerida), commonly known as "tape grass". The grass beds extend approximately 200 to 250 feet from the shoreline. Waterward of the grass beds is an unvegetated area with a gradual slope to a depth of approximately six feet. From the six-foot contour of the river bottom, a relatively precipitous slope begins, extending to depths which exceed 19 feet. In this zone, there are no grass beds. Further waterward and extending beyond the most waterward extent of the the marina site, the river bottom rises somewhat to depths of 13 feet, 12 feet and 11 feet, in the direction of the center of the river. The river bottom substrate in the area of the marina is composed primarily of sand. This includes some shell and other coarse materials, with minor amounts of silt. In fact, organic silt is a very small portion of the bottom sediments, consisting, at a depth of four and one-half feet, of less than 1% silt and at a depth of 15 feet of less than 6% silt content. The present water quality prevailing at the marina site is good, and the benthic habitat in the general area is healthy and diverse. The most landward boat slips proposed at the marina will be located at a distance of approximately 275 feet from the most waterward extent of the grass beds. These most landward slips will be located in depths of approximately eight feet. Access to the marina will be from the north and south in defined channels marked on the west by the end of the individual piers and on the east by channel markers located at the depth contour of minus six feet. That is, the six-foot depth will be the most shallow portion of the channel marked by the channel markers, so that boats will not be permitted to navigate the shallower portion landward of the channel markers insofar as the marina's enforcement program can insure that. The approximate width of the northern channel is 75 feet, and the width of the southern channel is 50 feet. Due to the precipitous drop in depth beyond the contour of minus six feet, the average depth of the channels is 10 to 12 feet. The majority of the boat slips, as well as the basin of the marina, will be located in depths of between 10 and 18 feet. The consultant and expert witness who designed the marina, Erik Olsen, established that the length of the main pier and the location of the most landward of the boat slips and the location of the channel markers are all part of a design and plan intended to insure that marina and boat activity within the marina occur well beyond the extant grass beds and waterward of depths of six feet, to insure that no damage to the grass bed habitat area is occasioned by propeller scouring, "prop-wash", or grounding of boats. Other design measures are also intended to preclude boaters from entering the shallow depths and grass bed areas. Two tiers of signs will be located between the marina basin and the most waterward extent of the grass beds. First, regulatory buoys and signs are proposed to be located at the contour of minus four feet and will establish a "manatee protection zone" landward of that contour. The evidence reveals, however, that a safer contour for the manatee protection zone boundary to be established by the applicant would dictate placing the regulatory warning signs concerning the manatee protection zone at the same contour, minus six feet of water, where the channel markers will be located. This is because the marina will serve boats of up to 4.5 feet in draught. Secondly, a tier of signs will be located approximately ten feet waterward of the most waterward extent of the grass beds warning boaters that aquatic grass beds exist landward of the signs and that prop dredging and boat operation is prohibited. Such warnings at the locations found above should be mandatory conditions to any grant of the permit. A specific, agreed-upon condition is already in the draft permit issued by the Department prescribing the size and lettering of these signs and other design details. A railing will extend, as proposed by the applicant, along the main pier between the slips and the shoreline to discourage boaters from mooring along the main pier, landward of the slips. The evidence establishes that in order to more adequately insure protection of the manatee habitat area and the grass beds, a mandatory condition in boat-slip rental leases should be inserted to absolutely prohibit boaters from mooring along the main pier, landward of the boat slips. Because of the currents and significant water depth prevailing at the marina site, the marina construction will require no dredging nor will operation and maintenance of the marina require any dredging on a continuing basis. Additionally, in the interest of protecting water quality, no fueling facilities or boat fueling will be permitted at the marina at all; and the grant of a permit should be mandatorily conditioned on this basis. Neither will any boat maintenance or repair be permitted at the marina, including no hauling of boats or scraping or painting of boat bottoms. This condition should be clearly pointed out to users of the marina by appropriate warning signs regarding the prohibition against boat maintenance and repair, including warnings concerning the proper methods of disposal of used oil and other petroleum products. The marina will feature pump-out facilities for boat heads and bilges. The pump-out facilities will consist of a central pumping system in which waste is removed from the boats, transported by pipeline to an upland, central waste water collection and treatment system. No holding tanks or other storage of wastes will be located at the piers. The pump-out facility will serve not only the boat heads but also boat bilges in order to prevent contaminants, such as oil and boat fuel from entering the State waters involved. The piers will feature trash collection containers of appropriate number, size and location on the piers so as to provide convenient trash disposal for each boat slip. The piers will also feature plastic modular dock boxes to preclude boaters from randomly storing materials and equipment on the piers. No fish cleaning will be permitted on the piers at all, but rather must be accomplished on the uplands, with disposal of related wastes in the upland collection system. A "no wake" zone will be established in an area extending 500 feet north and 500 feet south of the marina. The "no wake" zone will be marked pursuant to requirements of the Florida Marine Patrol. The marked "no wake" zone should also extend waterward of the farthest waterward extent of the marina, as well as 500 feet north and south of it. Only private, recreational boats will be moored at the marina. All commercial boats will be prohibited. The marina will serve a Yacht Club to be developed by St. Joe in conjunction with the marina. Only members of the Yacht Club and their guests will be permitted to use the marina. This will assist with enforcement of the various conditions on marina operation and maintenance by the owners as to the boat-slip lessees and their guests. This and all other conditions should be enforced by mandatory restrictions in the boat-slip leases. Likewise, the applicant has agreed to permit no "liveaboard" boats at the marina in order to avoid the possibility of sewage or other contaminants entering the State waters from liveaboard boats. The upland facilities will include restrooms, and signs should be appropriately placed on the piers to advise boaters and boat owners and operators of the availability of restroom facilities. The marina will not feature fueling facilities; however, St. Joe will maintain pollution containment supplies and equipment at the marina sufficient to contain any potential fuel or other petroleum spills from catastrophic events, such as the rupture of a boat fuel tank. Expert witnesses for St. Joe established that a "management and operational plan" designed to enforce the provisions enumerated above will be enacted by the applicant. The management and operational plan includes three mechanisms of enforcement: Warning signs. Boat-slip lease agreements which must incorporate all restrictions found to be necessary herein. These will contain an enforcement provision providing for mandatory eviction from use and lease of the marina facilities for any breach of those conditions by lessees or their guests. Management personnel will be employed on the marina property to enforce all restrictions and conditions designed to insure environmentally-safe operation and maintenance of the marina, and such personnel should be employed during all operating hours of the marina, not just during daylight hours, as proposed by the applicant. Signs will be posted at conspicuous locations at the marina and at the upland facilities of the Yacht Club informing boaters of the marina rules and prohibitions. The signage will be visible to Yacht Club members and their guests using the marina, and members' guests will be required, upon mooring at the marina, to register and to review the rules and prohibitions. Boat-slip lease agreements at the marina will incorporate these marina rules and prohibitions. Under the lease agreements, a violation of the marina rules or prohibitions by a member or guest will be considered a breach of the lease and will result in revocation of the lease and removal of the member's boat from the marina. A dock master will be employed at the marina to supervise the operation and maintenance of the marina and will be assisted by dock hands and other personnel in order to see that the conditions and restrictions referenced herein are enforced. The applicant has proposed such personnel being employed during daylight hours. However, in order to insure that the standards for operation and maintenance of the marina and boats using it will be enforced so as to avoid water-quality violations and violations of the public interest parameters delineated below, the permit grant should be conditioned upon such personnel being employed during all operating hours of the marina, whether daylight hours or not. If this is accomplished, the enforcement mechanisms outlined in the management and operational plan will reasonably insure enforcement of the marina's rules, prohibitions and conditions on any grant of the permit and likewise reasonably insure that water-quality and public interest standards are not violated. Upland Facilities The upland and Yacht Club facilities to be developed in conjunction with the marina will be located on approximately seven acres adjacent to the marina site. The Yacht Club and related facilities will include a clubhouse, parking, and a storm water treatment system which will serve the upland facilities. St. Joe has obtained a conceptual permit for the management and storage of surface waters for the proposed upland improvements, including the Yacht Club. It will also seek a permit for the storm water treatment system, itself. St. Joe, through its consultants, has investigated and opined that the installation of the proposed upland facilities are feasible and can comply with applicable regulatory criteria and is pursuing the necessary permits and approvals from local governments and state agencies. It will insure that all such is accomplished prior to initiation of construction of the Yacht Club facilities. The precise configuration and design of all upland facilities will be dictated by applicable local ordinances and the requirements of State regulatory agencies. Marina Impacts The applicant/Respondent and the Petitioners are in essential agreement, through the testimony of their witnesses, regarding the general potential impacts which may be posed by marinas in a general sense, when located in proximity to environmentally-sensitive areas. Concerning anticipated impacts of this marina at the subject site, however, St. Joe presented the testimony of three expert witnesses, as well as a hydrographic study. It was thus established that violations of the pertinent water-quality statute and rules and the public interest standards contained in the statute referenced herein will not be violated. The Petitioners, although presenting both lay and expert testimony regarding the water quality and habitat type and quality in the general area of the site and the general impacts that can be caused by marinas in such areas, presented no expert testimony or studies regarding the anticipated impacts of this particular marina, as designed and configured by the applicant, on the subject site and aquatic habitat. Water Quality Considerations Marinas are potential sources of pollutants which may adversely impact water quality. Different sources at a marina may generate different pollutants; and in this case, testimony addressed these potential pollutant impacts. The totality of the expert testimony taken at hearing establishes that the marina will not likely cause a violation of applicable water-quality standards. One witness for the Petitioners, Bill Watkins, was accepted as an expert in water quality. In describing potential impacts of the marina, however, he only opined that there "could be some effect on water quality"; however, he did not specifically establish adverse effects on water quality which could be anticipated or reasonably expected regarding violations of applicable standards. Mr. Watkins acknowledged: "As to whether or not that degree of pollution, and that's what we're talking about, degree of impact, would be something that would be, have a significant degradation effect, I could not answer without further site specific studies." Mr. Watkins further described the type of site specific information which would be required for him to make a proper assessment of water-quality impacts, including hydrographics and the nature of the sediments existing at the site. Other witnesses for the Petitioners similarly declined to opine regarding violations of the water-quality standards because site specific information was not available to them. Dr. DeMort, for example, explicitly declined to offer an opinion regarding water-quality violations. The opinions and testimony of the expert witnesses on water quality presented on behalf of St. Joe, as well as by the Department, are accepted in establishing that no water-quality violations by the construction and operation of the marina are anticipated. The reasonable assurance that water-quality violations will not occur through the construction and operation of the marina is illustrated by the unrefuted evidence concerning the hydrographics by which the site is characterized. A knowledge of site hydrographics is necessary to accurately determine potential water-quality impacts. A hydrographic study was prepared by St. Joe through the auspices of its consultant, Olsen Associates Incorporated. The experts who prepared that study testified on behalf of St. Joe at hearing, and a Department witness who reviewed the study testified by deposition. None of the Petitioners' expert witnesses addressed the subject of site hydrographics other than to note that they were an important consideration. Mr. Buckingham was accepted as an expert witness in the area of marine engineering with emphasis on hydrographics. He testified regarding the hydrographic study prepared and submitted by St. Joe. The study involved the collection of data at the site, including the gauging of water surface elevations over a two-day period in December of 1988; the comparison of those elevations to predicted elevations based upon historical data; a measurement of current velocities at the site; a dye study to assess the flow regime at the site; and the gathering of depth soundings and sediment samples to confirm the bathymetry and nature of bottom sediments at the site. The hydrographic study also involved the analysis of the data collected at the site. Hydrographics at the site are composed of two components, the transport of a pollutant by advective currents and the dispersion or diffusion of a pollutant within the water column. The physical transport by advective currents dominates the hydrographic circumstance prevailing at the marina site. A pollutant introduced at the site is more likely to be physically transported away from the site, in addition to being merely dispersed through the water column at the site. This is because of the relatively high current velocities prevailing. Both the transport and dispersion components were analyzed in the study to determine the time and distance necessary to reduce an initial concentration of a hypothetical pollutant to 10% of its initial concentration. A pollutant introduced at the site would be reduced to 10% of its initial concentration in less than seven minutes and within 400 feet of the site on the ebb tide and within 300 feet of the site on the flood tide. Moreover, the "plume" of this hypothetical pollutant would occur in a longshore direction parallel to the shore, as opposed to a direction toward the shore and would be of comparatively narrow width (approximately 30 feet). The hydrographics of this site are such that a complete water exchange will occur in 20 to 30 minutes at any point during the tidal cycle. The evidence thus demonstrated that the site is extremely well flushed by tidal currents. In his deposition, Ken Echternacht, of the Department, testified that data in the hydrographic study was realistic in his experience and that he had no questions or concerns regarding the data and methodology used to confirm that data. In addition to Mr. Buckingham's testimony and the study, itself, the testimony of Dr. Echternacht established that flushing is of no concern and is thoroughly adequate at the site. Dr. Echternacht is the Department's hydrographic engineer, whose function is to review all dredge and fill permit applications which may have impacts upon the hydraulics of surface water systems. He has reviewed approximately 1,500 dredge and fill permit applications. His testimony and that of Mr. Buckingham is accepted, as is that of other Department expert witnesses in establishing the excellent flushing characteristics of the site and that the construction and operation of the marina will not adversely affect the present hydrographic situation at the site, as that relates to establishing that no water quality violations will occur. All marinas are potential sources of pollutants. The first to be addressed involves the installation of the pilings themselves during the construction of the marina. This is a potential source of turbidity. Turbidity involves the suspension of bottom sediments and substrate material in the water column, which can pose, among other problems, the retardation of light penetration through the water column which can have an adverse impact on photosynthesis in marine grass beds. In extreme cases, it can cause the destruction of grass beds through killing of the grass by lack of adequate light penetration, as well as the smothering effect of sediments being deposited upon grasses. The method to be used by St. Joe in installing the pilings will be by "jetting" them into the bottom of the river initially and then driving the pilings into the river bottom to the required depth to support the piers. Witnesses for St. Joe and the Department established that this method will constitute an adequate safeguard to be employed during construction to minimize any turbidity. Any temporary or local turbidity caused by the installation of the pilings will be transitory and will pose no significant water-quality violation; however, turbidity curtains will, be employed, if necessary, by the applicant to control any such turbidity during construction. Another potential source of turbidity at a marina involves the dredging, washing or disturbance of the river bottom caused by boat propellers or boat keels. The evidence demonstrated that the risk of such "prop dredging" or wash at this marina will be negligible due to the design features and conditions at the site, including the channels and channel markers, and particularly by the depth of waters prevailing at the site. The marina basin and boat slips are located in water of sufficient depth to prevent prop dredging or wash. The =average depth of the entrance channels is between 10 and 12 feet. Maneuvering within the marina basin will occur in depths of 10 feet or greater. Although the most landward boat slips are located in depths of approximately eight feet, the average depth within most slips is approximately 10 to 12 feet. These depths are based upon the bathymetric survey of the site and confirmed by random soundings performed during the course of the hydrographic study in evidence. Further, these depths are "mean low water" depths. Mean low water reflects the "lowest expected level" within a 29-day tidal epic. The "mean lower low" level is the lowest expected level over the course of a year. That level prevailing at the site, according to the study, is 0.1 feet lower than mean low water. The maximum draught of boats expected to be moored at the marina is 4.5 feet. Thus, the depths in the marina will allow ample clearance between propellers and keels and the river bottom. The required clearance between boat bottoms and propellers and the river bottom can further be assured by proper placement of boats in the boat slips in the leasing process and in the assignment of boat slips to casual, temporary users of the marina. In other words, the larger boats will be assigned to the deeper, more waterward slips. Other measures include warning signs, which should be placed along the six-foot depth contour, along the landward edge of the entrance channels and beyond the waterward extent of the grass beds. This will insure that boaters do not stray into shallow-water, aquatic habitat areas. A second factor in determining the potential for prop dredging at the marina is the nature of the sediments themselves. Four witnesses, including those testifying for the Department and for the Petitioners, established that the sediments at the site are primarily sand-based, with minimal organic silt content. The sandy nature of the sediments minimizes the potential for turbidity caused by prop dredging or prop washing (hydraulic currents created by propeller operation) because sand, by its density, mass and weight, tends to settle out to the bottom much quicker if it is suspended in the water column. Even if prop dredging did occur at the marina, generating turbidity, the high flushing characteristic of the site would quickly transport and disperse any such turbidity and render it undetectable and likely prevent its deposition on the grass beds. A potential source of pollutants at a marina is boat fuel. Expert witnesses for the Department and the applicant established that the design and operational features of the marina, primarily the absence of any fueling facilities, will minimize or eliminate the potential for pollutants generated by fueling operations. Another potential source of pollutants at a marina is waste from boat heads and bilges generated by flushing boat heads or pumping out of bilges with bilge pumps. Expert witnesses for St. Joe, as well as the Department, established that the design and operational features with which this marina will be characterized will minimize or eliminate the potential for such pollutants to be generated because liveaboard boats will be prohibited, and the pumping out of heads and bilges will also be prohibited because of the conditions agreed to by the applicant for a grant of this permit. Another potential source of pollutants at a marina is the use of anti-fouling paint used on the bottoms of boats and the periodic scraping and repainting of boats. Expert witnesses for the Department and the applicant established that the operational features and design of this marina will minimize the potential for pollutants from this source because boat painting, sanding, and scraping and other operations attendant to boat painting will be absolutely prohibited at the marina. Finally, another potential source of pollutants would be trash and garbage materials. The potential for pollution from this source will be minimized by the use of trash containers and dock boxes located at frequent intervals around the piers and boat slips, as well as the instructional signs to be placed on the piers and slips by the applicant and the publication of marina rules in order to inform boat operators and guests of the necessity to dispose of trash in the proper containers. It has thus been established that the design and operational characteristics of the marina and conditions to be imposed thereon will minimize or eliminate the potential for pollutants to be generated and placed in the surface waters at the site. The marina will not occasion violations of applicable water-quality standards. Any pollutants which might be deposited in the surface waters at the site will be quickly transported and dispersed so as to be undetectable at the marina or in the vicinity of the marina because of the critical role played by the hydrographics prevailing at the site. Public Interest Impacts Much of the testimony at hearing regarding impacts upon the various public interest standards, including wildlife and habitats, focused upon the grass beds, and the benthic communities prevailing in deeper water at the site, as well as the fact that the site is used by manatees. Dr. Quinton White was accepted as an expert in biology and biological impacts of marina construction and operation. He testified on behalf of the applicant. His testimony and that of other expert witnesses offered by St. Joe and the Department established that there would be no adverse impact on benthic communities and organisms, including manatees, caused by the construction and operation of the marina. The Petitioners called expert witnesses on the issue of impacts on wildlife. Mike Allen, a Florida Game and Fresh Water Fish Commission staff member, testified that he was not really qualified as an expert in fisheries or benthic communities but, rather, in terms of terrestrial species which are not involved in this proceeding. Lawson Snyder, another Florida Game and Fresh Water Fish Commission staff member, was accepted as an expert in fisheries biology on behalf of Petitioner but testified that the marina's impacts upon fish and wildlife would not be detectable. Jim Valade, a Florida Department of Natural Resources staff member, was also accepted as an expert in marine biology, including fish and manatees, but testified that the permit applicant has taken steps to protect manatees in virtually all aspects and that his department's concerns regarding the safety of manatees have been adequately addressed by the design and proposed operation of the marina. Bill Watkins, a St. Johns River Water Management District staff member, was accepted as an expert in biology, but testified that the design of the marina provides the grass beds "a fair degree of protection" and declined to opine that the marina would have any adverse impacts upon wildlife or fish. Finally, Dr. Carol DeMort, in her deposition, specifically declined to render any opinion regarding adverse impacts upon wildlife or fish. Thus, the evidence adduced by the Petitioners at hearing did not rebut the evidence introduced by the applicant that the marina will have no detectable impacts upon wildlife or habitats involved in the vicinity of the site St. Joe introduced evidence concerning impacts from shading upon grass beds by the marina structures themselves and from turbidity "washed" onto, the grass beds by motorized boats maneuvering in the marina basin. Expert testimony was adduced that established that shading caused by the widest pier, that is, the main pier with a width of 12 feet, would have no adverse impact on the grass beds due to shading. That testimony was unrebutted and is accepted. Two expert witnesses for St. Joe, a marine engineer and a biologist, as well as a Department witness, established that, even assuming that turbidity was generated by propeller action in the marina basin, the turbidity resulting from prop wash would not be transported 275 feet from the marina basin offshore to the :grass beds at the inshore area. They attributed those opinions to the nature of the sediments involved which are not readily suspended, the flushing at the site, the distance between the basin and the grass beds, and the typical extent of prop wash from boats expected to be used at the marina. The Petitioners presented two witnesses, who testified regarding the impacts of prop wash. Mr. Allen, an expert in upland terrestrial species, testified regarding the potential for deposition of sediments on grass beds but also acknowledged that the hydrographics at the site, the distance between the marina basin and the grass beds and other protective measures would minimize this potential. One lay witness for the Petitioners testified to the effect that if a "handful" of boat owners in the marina violated the "no wake" restrictions and accelerated their boats in violation of those restrictions, they would cause turbidity to be placed upon the grass beds. His testimony was contradicted, however, by a marine engineer, who testified that prop wash is a function of many parameters (e.g., the RPM of the engine, the horsepower of the engine, the draught of the boat, and configuration of the propellers, etc.). He established that it would not be reasonable to expect prop wash extending twice the length of a boat. Regarding impacts upon benthic communities at the site, the applicant introduced expert testimony which established that the benthic communities in that vicinity of the marina, including the grass beds, fin fish, shellfish, and other organisms, will not be adversely impacted by the construction and operation of the marina in light of the safeguards which would be imposed upon the permit, as delineated herein. This is primarily due to the absence of significant concentrations of pollutants to be expected and the hydrographics prevailing at the site as that relates to the unlikelihood of boat grounding, prop dredging, and prop wash suspending pollutants and turbidity and depositing them on benthic community habitat areas. Only one of Petitioners' witnesses, Dr. DeMort, testified in her deposition concerning potential impacts upon benthic communities. Dr. DeMort made it clear, however, that she had conducted no investigations and studies necessary to enable her to render an expert opinion on the impacts upon the benthic communities prevailing at the site which might be caused by the marina's construction and operation. Her testimony in this regard only related to marina installation and operation in general and was not related to the specific design characteristics and proposed operational parameters of the subject marina. Manatees are an endangered species. There is much concern about their welfare with regard to the proposed project because all parties acknowledge that the site and the shoreward grass bed areas, particularly, are frequented by manatees, particularly for summer foraging. Manatees tend to forage in shallow waters and associated grass beds. Boats pose definite hazards to manatees and cause significant manatee deaths each year due to impact from boats, as much as 15% to 30% of the known population. In response to this hazard, the U.S. Marine Mammal Commission has recommended that grass beds be protected and that establishment of protective or "no wake" zones in manatee foraging areas be accomplished. In light of such restrictions voluntarily agreed to by St. Joe and its expert testimony in this regard and in light of the manatee education and awareness measures proposed by the applicant, it has been demonstrated that the marina will not have any negative impact on the manatee population in the area. The Petitioners' only expert witness concerning manatees, Jim Valade, indeed, opined that the marina had taken steps to protect manatees "in virtually all aspects". In this connection, the design features in the management and operational plan discussed herein and proposed by the applicant embodies measures to address potential impacts upon manatees which frequent the marina site. These include manatee awareness signs to be posted at the marina; and an additional specific condition has been agreed upon by the Department and the applicant which specifies the size, lettering and other details of the warning signs, and the location of them within the marina, all of which will be included in a plan to be submitted to, reviewed, and approved by the Florida Department of Natural Resources. Additionally, a permanent educational display will be located at the Yacht Club informing boaters who frequent the facility of the presence of manatees in the area and the need to minimize the impact of boats upon manatees. During construction, if a manatee is sited within 100 yards of the marina site, construction activities will cease and not resume until manatees have left the area. A handbook will be prepared concerning manatees and the effect on them of boat operation, which will be distributed to employees of the facility and to Yacht Club members and guests. This requirement and the review of it by Yacht Club members and guests will be an integral requirement in the terms of the slip leases. Additionally, no docking facilities, pilings or cleats will be located along the portions of the piers not containing boat slips in order to discourage boaters from attempting to moor at those locations, which will reduce the number of boats frequenting the marina, as that relates to manatee safety. This portion of the St. Johns River functions as a highly productive juvenile fish nursery and sports fishing area. Therefore, an examination of the marina's potential impacts upon marine productivity, fishing and recreation in the area is an important consideration in this proceeding. The discussion of this potential impact involves the same issues discussed in connection with impacts upon water quality and wildlife habitat; namely, the generation of pollutants and the impacts upon the grass beds and benthic communities directly by boat operation itself. Unrefuted testimony adduced by the applicant and the Department has established that impacts upon the fish population and upon marine productivity, fishing and recreational values will not be adverse. No deliterious effect is likely to be occasioned the fisheries and fish habitat and the habitat of other aquatic organisms in terms of juveniles or adults or to the sport fishing values of the area in which the marina will be located. Indeed, the marina structures and the shade and concealment offered by moored boats will provide additional habitat for juvenile fish, as well as provide an additional source of food because of the "fouling communities" of life forms which will be expected to grow on the pilings. These will serve as food for juvenile fish and some species of adult fish which, in turn, will enhance the food supply of predatory fish operating at an upper level in the food web. The boats and structures themselves also will operate as a source of protection for certain fish populations from predators. The Petitioners produced a fisheries biologist as an expert witness, who testified in this regard; but he acknowledged that he did not know whether noticeable impacts on conservation of fish, marine productivity and recreational values will be caused by the installation and operation of the marina. He testified in a general sense that he feared some negative impacts might result but did not feel that any such impacts would be detectable based upon testimony he heard and deferred to, including testimony that the littoral zone would not be impacted by the marina to any significant degree. He ultimately opined that the marina would likely have little impact on sports fishing. The other witness produced by the Petitioners concerning impacts upon fishing and recreational values was unable to render any expert opinion, by her own admission, because she had conducted no studies or otherwise been provided information regarding the design and proposed operation of the marina. Consequently, the testimony adduced by the applicant as to these parameters is accepted; and it has been established that the marina will not adversely impact fisheries, fish conservation, aquatic habitat, sport fishing, recreational values and marine productivity in the area involved at the project site. Regarding potential impacts upon the public health, safety and welfare and property of others, the applicant and the Department adduced expert testimony that no adverse impact regarding these interests will occur. The testimony of Petitioners' experts similarly establishes that the marina would not pose safety hazards or would otherwise give rise to any noticeable impacts upon the public health, safety, welfare and property of others. Regarding potential impacts upon navigation or the flow of water, St. Joe and the Department introduced expert testimony to establish that the marina would not adversely impact navigation or the flow of water, and it is so found. The Petitioners' introduced no evidence regarding this subject. Regarding potential impacts upon significant historical and archaeological resources, the applicant and the Department introduced evidence that no adverse impact as regards these resource parameters will occur. Although one of the Petitioners, in her testimony, speculated that the marina could "detract" from the William Bartram scenic highway, she was unable to specify how the marina would impact the highway or to what extent the highway was a significant, historical or archaeological resource. It is found that no such adverse impact on the William Bartram scenic highway will occur. Cumulative Impact Regarding cumulative impacts, the applicant and the Department introduced evidence that the marina would not give rise to impacts which, cumulative with the impacts of other marina facilities, would be significant. The evidence establishes that there are six marinas within four miles of this marina site; two upriver, and four downriver. Due to the hydrographic circumstances in the area and the distance of the other marinas from this site, it has been demonstrated that the addition of this marina to the area will not result in any adverse cumulative impacts. Mr. Mike Allen, the expert in upland terrestrial species (not involved in this proceeding), referenced in his testimony the cumulative impacts he feared on sports and commercial fishing. Mr. Allen made it clear, however, that his reference was not to cumulative impacts caused by the marina and existing marinas but, rather, to impacts which could be brought about by many such future facilities located in this particular area. The evidence does not reflect, however, that any other marinas are conceptually contemplated or are the subject of other permit applications for this area for the future. It is thus found that no significant adverse cumulative impacts will be occasioned by the installation and operation of the subject facility.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is therefore, RECOMMENDED that the application of St. Joe Paper Company for the dredge and fill permit at issue be granted, provided that the terms and conditions enumerated in the Department's Intent to Issue, in evidence as St. Joe Exhibit 9, and accepted by the applicant, as well as those conditions found in this Recommended Order to be necessary and supported by the evidence, are incorporated in the permit as mandatory conditions. DONE AND ENTERED this 26 day of October, 1990, in Tallahassee, Leon County, Florida. P. MICHAEL RUFF Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 29 day of October, 1990. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 89-5053 Applicant's/Respondent's Proposed Findings of Fact 1-53. Accepted, but are subordinate to the Hearing Officer's Findings of Fact on the same subject matter, particularly in those several instances where conditions on the grant of the permit have been recommended to be modified somewhat by the Hearing Officer in light of the totality of the preponderant evidence presented. Rejected, as unnecessary. Accepted. Respondent DER's Proposed Findings of Fact The Department submitted no proposed findings of fact but, rather, adopted those submitted by the applicant/Respondent. Petitioners' Proposed Findings of Fact Petitioners, Hoffert, presented no proposed findings of fact but, rather, a letter in the nature of final argument which has been referenced and discussed in the above Preliminary Statement to this Recommended Order. Petitioners, Cornwell, submitted a post-hearing pleading; but it contained no specific, separately-stated proposed findings of fact, which can be separated from their mere recitation and discussion of testimony in evidence and arguments such that coherent, specific rulings could be made. Petitioners, Cornwell's post-hearing pleading did not conform to the instructions given to them by the Hearing Officer at the conclusion of the hearing concerning the appropriate manner for submission of proposed findings of fact, and they were submitted late. They have been considered in the rendition of this Recommended Order, however, in spite of the fact that they were filed in a tardy fashion. COPIES FURNISHED: Dale H. Twachtmann, Secretary Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, FL 32399-2400 Daniel H. Thompson, Esq. General Counsel Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, FL 32399-2400 T. R. Hainline, Jr., Esq. ROGERS, TOWERS, ET AL. 1300 Gulf Life Drive Jacksonville, FL 32207 William H. Congdon, Esq. and Joanne Barone, Esq. Department of Environmental Regulation Twin Towers Office Building Room 654 2600 Blair Stone Road Tallahassee, FL 32399-2400 Barbara Davis Winn 3448 State Road 13 Jacksonville, FL 32259 Mary and Irv Cornwell 2652 State Road 13 Switzerland, FL 32259
The Issue The issue in this case is whether Respondent, the Department of Environmental Protection (DEP), should grant the application of Respondent, Leland Egland, for an Environmental Resource Permit (ERP), Number 44-01700257-001-ES, to fill an illegally-dredged trench or channel in mangrove wetlands between Florida Bay and what was a land-locked lake, to restore preexisting conditions.
Findings Of Fact Since 1988, Applicant, Leland Egland, has resided in a home built on property he purchased in Buccaneer Point Estates in Key Largo, Florida, in 1986--namely, Lots 14 and 15, Block 2, plus the "southerly contiguous 50 feet." A 1975 plat of Buccaneer Point shows this "southerly contiguous 50 feet" as a channel between Florida Bay to the west and a lake or pond to the east; it also shows a 800-foot linear canal extending from the lake or pond to the north. Egland's Lot 14 borders Florida Bay to the west; his lot 15 borders the lake or pond to the east; the "southerly contiguous 50 feet" is between Egland's lots 14 and 15 and property farther south owned by another developer. See Finding 10, infra. Buccaneer Point lots in Blocks 1 (to the east) and 2 (to the west) surround the lake or pond and canal. The developer of Buccaneer Point applied to the Florida Department of Environmental Regulation (DER) in 1977 for a permit to dredge a channel, characterized as a flushing channel for the lake or pond, which was characterized as a tidal pond with replanted red mangroves. (There was no evidence as to the character of this pond before the 1977 permit application or if it even existed.) DER denied the permit application because the: proposal . . . to open a pond to Florida Bay . . . will connect an 800 linear foot dead-end canal. The pond and canal will act as a sink for marl and organic debris which will increase Biological Oxygen Demand and lower Dissolved Oxygen. The project is expected to result in substances which settle to form putrescent or otherwise objectionable sludge deposits and floating debris, oil scum, and other materials, in amounts sufficient to be deleterious. Based on the above, degradation of local water quality is expected. * * * Furthermore, your project will result in the following effects to such an extent as to be contrary to the public interest and the provisions of Chapter 253, Florida Statutes: Interference with the conservation of fish, marine life and wildlife, and other natural resources. Destruction of natural marine habitats, grass flats suitable as nursery or feeding grounds for marine life, including established marine soils suitable for producing plant growth of a type useful as nursery or feeding grounds for marine life. Reduction in the capability of habitat to support a well-balanced fish and wildlife population. Impairment of the management or feasibility of management of fish and wildlife resources. As a result, the proposed channel to Florida Bay was not dredged (although some of the lake side of the proposed channel apparently was dredged before the project was abandoned); the building lots surrounding the lake or pond (now known as South Lake) and canal were sold as waterfront lots on a land-locked lake without access to Florida Bay; and the "southerly contiguous 50 feet" was included with the conveyance to Egland, along with the Lots 14 and 15 of Block 2. The evidence was not clear as to the characteristics of the "southerly contiguous 50 feet" in 1977, or earlier. When Egland purchased his property in 1986, it was a mature mangrove slough with some tidal exchange between the lake and Florida Bay, especially during high tides and stormy weather. Some witnesses characterized the area of mangroves as a shallow creek in that general time frame (from about 1984 through 1988). According to Vince Easevoli, at least under certain conditions, a rowboat could be maneuvered between the lake and Florida Bay using a pole "like a gondola effect." But Egland testified to seeing Easevoli drag a shallow-draft boat through this area in this general time frame, and the greater weight of the evidence was that the mangrove slough was not regularly navigable channel at the time. During this general time frame (the mid-to-late 1980's) several Petitioners (namely, Stanley Dominick, John and Katherine Easevoli, and their son, Vince Easevoli) purchased property on South Lake. All but Vince built homes and resided there; Vince did not reside there until after Hurricane Andrew in 1992, but he sometimes stayed at the residence on his parents' property during this general time frame. In the early 1990's, the slough or creek became somewhat deeper, making it increasingly more easily passable by boat. Large storms such as Hurricane Andrew in 1992 and the "storm of the century" in 1993 may have contributed to these changes, but human intervention seems to have been primarily responsible. In 1994, Egland added a swimming pool south of the residence on his lots. During construction, some illegal filling took place. Several witnesses testified that the illegal fill occurred to the north of the creek, which was not affected. Vince Easevoli's lay interpretation of several surveys in evidence led him to maintain that illegal fill was placed in the mangrove slough and that the creek became narrower by approximately four feet and, eventually, deeper. But no surveyor testified to explain the surveys in evidence, which do not seem to clearly support Easevoli's position, and the greater weight of the evidence was that illegal fill was not added to the creek in Egland's "southerly contiguous 50 feet." At some point in time, hand tools were used to deepen the slough or creek and trim mangroves without a permit to enable a small boat to get through more easily. As boats were maneuvered through, the creek got deeper. Eventually, propeller-driven boats of increasing size were used to "prop- dredge" the creek even deeper. According to Petitioner, Tom Hodges, when he and his wife purchased their lot on the lake in 1994, it was possible to navigate the creek in a 22-foot Mako boat (at least under certain conditions), and their lot was sold to them as having limited access to Florida Bay. (There was evidence that access to Florida Bay could increase the price of these lots by a factor of three.) Petitioners Martha Scott and Marianne Delfino also purchased their property on the lake in 1994. Tom Hodges claimed to have seen manatees in the lake as early as 1994, but no other witnesses claimed sightings earlier than 1997, and the accuracy of this estimate is questionable. Even if manatees were in the lake during this time frame or earlier, it is possible that they used an access point other than the creek. At the southeast corner of South Lake in Buccaneer Point, there is a possible connection to a body of water farther south, which is part of a condominium development called Landings of Largo and leads still farther south to access to Florida Bay near a dock owned by Landings of Largo. While this connection is shallow, it may have been deep enough under certain conditions to allow manatees to pass through. Apparently not with manatees but rather with boaters from the lake in Buccaneer Point in mind, Landings of Largo has attempted to close this access point by placement of rebar; Landings of Largo also has placed rip-rap under its dock farther south to prevent boats from passing under the dock. However, there are gaps in the rip-rap, some possibly large enough for manatees to pass. In approximately 1995 or 1996, Egland observed Vince Easevoli and his father, John Easevoli, digging a trench through the mangrove slough with a shovel and cutting mangrove trees with a saw in Egland's "southerly contiguous 50 feet." Others were standing by, watching. Egland told them to stop and leave.6 These actions made the creek even deeper and more easily navigable by boat, which continued to further excavate the trench by such methods as "prop dredging." In 1997 Hany Haroun purchased property adjacent to South Lake where he lives with his wife, Christine. By this time, Florida Bay was easily accessible by boat from the lake, and Haroun paid $260,000 for the property. He estimated that his property would be worth about $150,000 less without boat access to Florida Bay. In approximately 1997, manatees began to appear in South Lake year round from time to time, especially in the winter months. In 1997, the Hodgeses saw one they thought may have been in distress and telephoned the Save Our Manatee Club and Dolphin Research for advice. Following the advice given, they used lettuce to coax the manatee over to their dock to check its condition and videotape the event. The manatee appeared healthy and eventually departed the lake. On subsequent visits, manatees have been seen and videotaped resting and cavorting with and without calves and possibly mating in the lake. Groups of as many as seven to eight manatees have been seen at one time in the lake. Tom Hodges, Vince Easevoli, and Hany Haroun testified that they have enjoyed watching manatees in the lake since 1997. It can be inferred from the evidence that Elaine Hodges also has enjoyed watching manatees in the lake. There was no evidence as to the extent to which other Petitioners enjoy watching manatees in the lake. In 1997, the ACOE began an investigation of the illegal dredging of Egland's "southerly contiguous 50 feet." According to Egland, he was in communication with ACOE; presumably, he told ACOE what he knew about the illegal dredging on his property. According to Egland, ACOE advised him to place posts in the dredged channel to keep boats out. When he did so, Tom Hodges removed the posts. Egland replaced the posts, and Hodges removed them again. When Egland told ACOE what was happening, ACOE asked him to try reinstalling the posts and screwing plywood to the posts to achieve a stronger, fence-like barrier. Hodges also removed these barriers, and Egland did not replace the posts or plywood barrier again. In 1998, ACOE mailed Egland a Cease and Desist Order accusing him of illegal dredging in his "southerly contiguous 50 feet" and demanding that he restore the mangrove slough to its previous conditions. Egland was angry at being blamed for the dredging and initially disputed ACOE's charges and demands. But ACOE and the United States Environmental Protection Agency (EPA), which accepted the role of lead federal enforcement agency on December 18, 1998, was seeking monetary civil penalties. In addition, Egland received legal advice that, if restoration were delayed, he could be sued for damages by someone purchasing property on the lake or canal in the meantime upon the mistaken belief that there was boat access to Florida Bay. For these reasons, Egland agreed to comply with the Cease and Desist Order. However, ACOE and EPA informed Egland that he might have to obtain a permit from DEP to fill the dredged channel in compliance with the Cease and Desist Order. On May 22, 2000, Egland applied to DEP for an ERP to restore a trench about 100 feet long varying from seven to ten feet in width that was illegally dredged on his property. He estimated that a total of 160 cubic yards of fill would be required, to be spread over approximately 900 square feet. He assured DEP that rip-rap would be used to contain the fill and that turbidity screens would be used during construction. During processing of Egland's application, DEP requested additional information, which Egland provided, and DEP's Environmental Manager, Edward Barham, visited the project site in October 2000. Based on all the evidence available to him at that point in time, Barham viewed Egland's proposed fill project as a simple restoration project to correct illegal dredging and return the mangrove slough to its preexisting condition. For that reason, Barham recommended that DEP process the application as a de minimis exemption and not charge a permit application fee. Subsequently, some Petitioners brought it to DEP's attention that manatees were accessing South Lake through the channel Egland wanted to fill. DEP saw no need to verify the accuracy of Petitioners' information or obtain additional information about the manatees use of the lake because DEP still viewed it as a restoration project. However, DEP decided that it would be necessary to include specific conditions in any ERP issued to Egland to ensure that no manatees would be trapped in the lake or otherwise injured as a result of filling the channel. Primarily due to the need for these conditions, and also because of anticipated opposition from Petitioners, DEP decided to charge Egland a permit application fee and not process the application as a de minimis exemption. DEP staff visited the mangrove slough on numerous occasions between October 2000, and final hearing and observed that the trench continued to get deeper over time as a result of continued prop-dredging and digging. In early August 2001, Tom Hodges observed a man walking back and forth with a wheel barrow between a storage shed on Egland's property and the channel. (Hodges was on his property across South Lake but use of binoculars enabled him to see this.) The next day, Hany Haroun discovered a poured- concrete slab forming a plug or dam in the channel on the lake side. Haroun reported his discovery to Tom Hodges, who investigated with his wife, who took photographs of the structure. At some point, the Hodgeses realized that a manatee was trapped in the lake. The manatee did not, and appeared unable to, use the other possible access point towards Landings of Largo to escape. See Finding 10, supra. The Hodgeses telephoned Barham at DEP to report the situation and complain. Tom Hodges then proceeded to break up the concrete, remove the resulting rubble, and place it on the path to the storage shed, freeing the manatee. The incident was reported in the newspaper the next day and prompted Petitioners to file their Motion to Dismiss and for Other Relief on August 9, 2001. See Preliminary Statement. The evidence was inconclusive as to who poured the concrete, or had it poured, and why. Egland testified that he was in Egypt on an extended trip at the time and denied any knowledge of the concrete plug until he saw the rubble on his property upon his return from Egypt. Egland testified that he saw no "aggregate" in the concrete, which would make it relatively easy to break up, and he suspected that Petitioners were responsible for pouring the concrete in order to publicly make false accusations against Egland. Petitioners denied Egland's accusation. Vince testified that the concrete contained rebar for strength. The evidence was inconclusive as to who was responsible for this incident. As pointed out by Petitioners, DEP did not investigate and does not know whether there is any freshwater upwelling in the lake, whether manatees have mated in the lake, or whether calves have been birthed in the lake. DEP also did not investigate and does not know whether South Lake is unlike other manatee habitat in the area. DEP did not investigate or obtain any information as to how many manatees use the lake, or what manatees use the lake for, in addition to the information provided by Petitioners. Carol Knox, an Environmental Specialist III with the Florida Fish and Wildlife Commission, testified as a manatee expert based on her knowledge of manatees and manatee habitat in the area, as well as the information known to DEP. It was her opinion that, regardless what South Lake might offer manatees in the way of habitat, closing the channel (with the specific conditions required by DEP to protect manatees during the filling itself) would have no adverse impact on manatees because it did not appear that manatees made use of the lake before the channel was dug in 1996 or 1997, and ample other manatee habitat of various kinds continued to be available in the area.7 Based on the testimony of Knox and Barham, and the totality of the evidence in this case, it is found that Egland provided reasonable assurance that his proposed restoration project will not harm or adversely affect manatees or their habitats. Petitioners also questioned Egland's assurances as to water quality. Vince Easevoli, Stanley Dominick, and Hany Haroun testified to their concerns that water quality in the lake will decline if the channel is closed. As Petitioners point out, DEP did not require Egland to provide any water quality measurements. This was because the proposal is reasonably expected to reverse the effects of the illegal dredging on water quality and to return both the water in the lake and canal and the water in Florida Bay to the quality that existed prior to the illegal dredging. Without requiring any water quality measurements, it is reasonably expected that the water quality in Florida Bay would not decline in any respect; to the contrary, if anything, Florida Bay's water quality would be expected to improve by reduction of contributions from the lake and canal. Conversely, water quality in the lake and canal would be expected to decline but not below what it was before the illegal dredging. Petitioners also question DEP's failure to require Egland to provide a survey or stake the area to be filled, so as to ensure against filling too much of the mangrove slough. But the proposed ERP contains a specific condition: "The final fill elevation of the fill shall be at the elevation of the substrate within the adjacent mangrove wetlands." Barham testified persuasively that this specific condition is adequate to provide reasonable assurance. Compliance can be ascertained by simply viewing the site after completion of the restoration project, and compliance can be enforced by requiring removal of excess fill as necessary. The proposed ERP also contains a general condition that the permit does not convey or create any property right, or any interest in real property, or authorize any entrances upon or activities on property which is not owned or controlled by Egland.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Respondent, the Department of Environmental Protection, enter a final order granting the application of Leland Egland and issuing ERP Number 44- 01700257-001-ES. DONE AND ENTERED this 25th day of November, 2002, in Tallahassee, Leon County, Florida. ___________________________________ J. LAWRENCE JOHNSTON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 25th day of November, 2002.
The Issue The issue for determination is whether Jupiter Hills Lighthouse Marina is entitled to be issued a permit by the Department of Environmental Protection for its project application submitted July 29, 1992, and revised November 15, 1993, to enlarge an existing marina and add new slips.
Findings Of Fact On July 29, 1992, Jupiter Hills Lighthouse Marina (Respondent Jupiter Hills) submitted an application to the Department of Environmental Protection (Respondent DEP) for a permit to enlarge an existing dock facility to 488 feet and to increase the existing 6 slips to 48 new slips. Respondent Jupiter Hills is located 0.7 miles north of Martin County Line Road, on U. S. Highway One, Indian River Lagoon, Jensen Beach to Jupiter Inlet Aquatic Preserve, more particularly described as Martin County, Section 19, Township 40 South, Range 43 East, Indian River Lagoon Class III Waters. On November 15, 1993, Respondent Jupiter Hills amended its application at the request of Respondent DEP. The revised proposed project increases the dock facility from 6 slips to 18 slips, restricting 12 of the 18 slips for sailboat use; and proposes a new 149 foot long T-shaped pier from the existing pier, creating a total dimension of 180 feet by 60 feet. Further, Respondent Jupiter Hills proposes to remove four existing finger piers and 10 existing mooring pilings, to add eight finger piers and 34 new mooring pilings, and to place riprap along the existing seawall and new pier. The proposed project is located in an Outstanding Florida Water (a designated aquatic preserve), the Jensen Beach to Jupiter Inlet Aquatic Preserve, which is a part of the Indian River Preserve. Significant water quality parameters for this proposed project include coliform bacteria, heavy metals, and oil and grease. Water quality standards for oil and grease are not being currently met. However, to address this noncompliance, Respondent Jupiter Hills has agreed to include, as part of this project, the installation of an exfiltration trench to trap grease coming from the uplands. This trench will improve water quality, causing a net improvement of water quality in the proposed project area. Stormwater from the area, including a portion of U. S. Highway One and parking areas within U. S. Highway One right-of-way, discharge directly into Respondent Jupiter Hills. This stormwater then drains directly into tidal waters. The exfiltration trench is designed to intercept up to three-fourths of an inch of the stormwater flow currently draining into the basin. The owners of Respondent Jupiter Hills will maintain the exfiltration trench. They have signed a long-term agreement with Respondent DEP for the maintenance of the trench, and the agreement is included in Respondent DEP's Intent to Issue. Water quality standards for fecal coliform are currently being met. The construction of the proposed project will not preclude or prevent continuing compliance with these standards. Respondent Jupiter Hills has proposed a sewage pump-out station which is not currently in the area and which will encourage boaters to pump boat sewage into the city treatment area instead of dumping the sewage into the water. The pump-out station will be connected to the central sewage system, but boaters will not be required to use the sewage pump-out station. However, since liveaboards are more likely to cause fecal coliform violations, Respondent Jupiter Hills has agreed that no liveaboards will be permitted in the proposed project. Water quality standards for heavy metals are currently being met. The construction of the proposed project will not preclude or prevent continuing compliance with these standards. Respondent Jupiter Hills proposes to use construction materials which have not been treated by heavy metals. Also, because the proposed project area flushes in one tidal cycle, any additional metals from the boats themselves would be swept away quickly. The proposed project will not adversely impact or affect the public health, safety or welfare or the property of others. Respondent Jupiter Hills has provided reasonable assurance that water quality standards will be met, continue to be met, and not violated. As a result, the public health and safety are protected. The proposed pump-out facility will reduce the incidences of illegal head discharges into the Jupiter Sound. Thus, this facility will benefit the health and safety of swimmers or others participating in water-related activities in the Jupiter Sound. The proposed project will not adversely affect the conservation of fish and wildlife, including endangered or threatened species, or their habitats. Respondent Jupiter Hills has agreed to several measures designed to reduce any adverse impacts to fish and wildlife and the measures have been incorporated into the Intent to Issue. Respondent Jupiter Hills has agreed to not allow new power boats to dock at the proposed facility, which will prevent adverse affects on the manatee population in the area. Additionally, the proposed pump-out facility will improve the water quality, resulting in a benefit to fish and wildlife, including the Benthic habitat and seagrasses. Respondent Jupiter Hills has further agreed to install navigational signs, directing boaters away from manatees, and no wake signs, indicating the presence of manatees; these signs do not presently exist. Furthermore, Respondent Jupiter Hills has agreed to post signs directing boaters away from any seagrasses located in the proposed project area. Whether seagrasses in the proposed project area will be adversely affected is also a factor to be considered. Inspections and surveys of the proposed project area in December 1992 and mid-March 1993 revealed one patch of Halophila decipiens and Halophila johnsonii at the 100 foot contour but no seagrasses within the footprint of the proposed project. A survey of the area in late April 1994 revealed some seagrasses in the proposed project area but no seagrasses within the footprint of the proposed project. In September 1995, an examination of the area revealed Halophila decipiens just waterward of the existing slips down to the southern property boundaries 20 to 30 feet wide and revealed sparse seagrasses approximately 300 to 500 feet from the shoreline. Halophila decipiens is more abundant and thick in the summer and tends to die off and at its thinnest in the winter. Neither Halophila decipiens nor Halophila johnsonii are threatened or endangered species of seagrasses. The seagrasses provide a significant environmental benefit. The benefits include nutrient recycling in the area and providing habitat for Benthic invertebrates, such as crabs, which are at the bottom of the food chain. Also, other plants grow on the seagrasses, such as algae, and the other plants provide food for other organisms. Manatees eat several seagrasses, including Halophia decipiens but it is not one of the manatees preferred seagrasses. Seagrasses can be adversely affected in two ways. One way is that prop dredging could scar the seagrasses. However, as to the proposed project, the depth of the water in the area of the seagrasses will prevent any adverse affects from prop dredging. The second way that seagrasses can, and will, be adversely affected is being shaded by the proposed dock or by boats tied-up to the dock. The density of the seagrass, pertaining to this proposed project, is thin and low and approximately one percent of actual coverage. In determining whether the proposed project is clearly in the public interest, Respondent DEP uses a balancing test which consists of taking the public interest criteria and weighing the pros and cons of the proposed project. Balancing the adverse impacts on the seagrasses and the positive effects of the public interest criteria, the proposed project is clearly in the public interest. The slips in the proposed project will increase by 12; however, the slips can only be used by sailboats. Since sailboats move slowly, the manatees in the area will not be adversely affected by the proposed project. Neither navigation nor the flow of water will be adversely affected by the proposed project. Further, no harmful erosion or shoaling will be caused by the proposed project. Adequate depths are off of the end of the dock for boats to safely navigate. Shoaling is not a potential problem, and therefore, any potential shoaling which may develop will not adversely affect navigation. The proposed dock will not impact navigation into the Intracoastal Waterway (ICW) because the dock will not extend into the ICW and because Respondent Jupiter Hills will provide navigational aids to guide boaters to access the Atlantic ICW. Furthermore, there is sufficient depth for navigation between the end of the proposed dock and the sandbar where the seagrasses are located. Boat traffic coming from the south will primarily originate from the residences to the south. The proposed dock will force these boaters 200 feet offshore where the natural channel is located. Additionally, the dock will keep boaters further offshore from the riparian land owners to the north, including the Petitioners. To improve the public interest aspects of the project, Respondent DEP proposed that Respondent Jupiter Hills install riprap, which Respondent Jupiter Hills agreed to do. Installation of the riprap will be 367 feet along the perimeter of the proposed dock and in a 10 by 50 foot area along the bulkhead north of the dock. Some shoaling will result but will not affect navigation. The riprap will provide substrate and shelter for marine life. The fishing or recreational values or marine productivity will not be adversely affected by the proposed project. Marine productivity will increase because the sewage pump-out station will improve the water quality which will benefit the Benthic community. The proposed project will be of a permanent nature. Significant historical and archaeological resources will not be adversely affected by the proposed project. The Department of State, which is responsible for historical and archaeological resources, reviewed the Notice of Intent and has no objection to the proposed project. The current condition and relative value of functions being performed by areas affected by the proposed project will be increased and, therefore, benefited. No cumulative impacts are associated with the proposed project. The proposed project is not in an area of pristine shoreline; the area is highly developed. Approximately 1,200 feet to the south of the proposed project is a 270 foot dock with about 50 slips. When considered with the other docks in the area, the extension of the dock in the proposed project will not significantly or measurably further violate the water quality. Respondent Jupiter Hills has provided reasonable assurance that the proposed project is clearly in the public interest.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Environmental Protection issue a final order issuing Permit No. 432170499 to Jupiter Hills Lighthouse Marina. DONE AND ENTERED this 8th day of April, 1996, in Tallahassee, Leon County, Florida. ERROL H. POWELL, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 8th day of April, 1996. APPENDIX The following rulings are made on the parties' proposed findings of fact: Petitioners Proposed Findings of Fact Partially accepted in finding of fact 1. Partially accepted in finding of fact 3. Partially accepted in findings of fact 1 and 2. Partially accepted in finding of fact 2. Partially accepted in finding of fact 10. Rejected as being irrelevant, or unnecessary. See, conclusion of law 43. Also, partially accepted in findings of fact 19-27, 34-35. Partially accepted in finding of fact 4. Partially accepted in finding of fact 5. Partially accepted in findings of fact 5 and 6. Partially accepted in finding of fact 7. Partially accepted in finding of fact 9. Rejected as being unnecessary. Also, see finding of fact 18. Partially accepted in finding of fact 10. Partially accepted in findings of fact 8, 9, and 10. Partially accepted in finding of fact 9. Partially accepted in findings of fact 12 and 13. Partially accepted in finding of fact 11. See, conclusion of law 46. Partially accepted in findings of fact 9 and 16. Partially accepted in finding of fact 18. Partially accepted in finding of fact 18. Partially accepted in finding of fact 31. Partially accepted in findings of fact 18 and 28. Partially accepted in findings of fact 29 and 30. Partially accepted in finding of fact 31. Partially accepted in finding of fact 33. Partially accepted in finding of fact 9. Partially accepted in finding of fact 37. Partially accepted in finding of fact 36. Rejected as being argument, or a conclusion of law. Rejected as being argument, or a conclusion of law. Partially accepted in finding of fact 23. Partially accepted in finding of fact 23. Partially accepted in finding of fact 24. Rejected as being irrelevant, or unnecessary. Partially accepted in finding of fact 20. Partially accepted in finding of fact 20. Partially accepted in finding of fact 20. Rejected as being irrelevant, unnecessary, argument, or a conclusion of law. Rejected as being irrelevant, unnecessary, argument, or a conclusion of law. Partially accepted in finding of fact 20. Rejected as being irrelevant, unnecessary, argument, or a conclusion of law. Partially accepted in findings of fact 20 and 21. Partially accepted in finding of fact 26. Partially accepted in findings of fact 3 and 20. Partially accepted in finding of fact 20. Rejected as being not supported by the greater weight of the evidence, argument, or a conclusion of law. Rejected as being irrelevant, unnecessary, argument, or a conclusion of law. Rejected as being irrelevant, unnecessary, argument, or a conclusion of law. Rejected as being irrelevant, unnecessary, argument, or a conclusion of law. Rejected as being not supported by the greater weight of the evidence, argument, or a conclusion of law. Rejected as being irrelevant, unnecessary, argument, or a conclusion of law. Partially accepted in findings of fact 19-27. Rejected as being irrelevant, unnecessary, argument, or a conclusion of law. Rejectd as being irrelevant, unnecessary, argument, or a conclusion of law. Rejected as being irrelevant, unnecessary, argument, or a conclusion of law. Rejected as being irrelevant, unnecessary, argument, or a conclusion of law. Rejected as being irrelevant, unnecessary, argument, or a conclusion of law. Respondent Jupiter Hills' Proposed Findings of Fact Partially accepted in finding of fact 1. Partially accepted in finding of fact 1. Partially accepted in finding of fact 2. Partially accepted in findings of fact 1 and 2. Partially accepted in finding of fact 13. Partially accepted in finding of fact 13. Partially accepted in findings of fact 30 and 31. Partially accepted in finding of fact 14. Partially accepted in finding of fact 17. Partially accepted in finding of fact 29. Partially accepted in finding of fact 34. Partially accepted in finding of fact 36. Partially accepted in finding of fact 13. Partially accepted in finding of fact 38. Partially accepted in finding of fact 39. Partially accepted in findings of fact 29, 30 and 33. Partially accepted in finding of fact 31. Partially accepted in finding of fact 15. Partially accepted in findings of fact 4, 5, 8, and 11. Partially accepted in findings of fact 5 and 6. Partially accepted in finding of fact 9. Partially accepted in findings of fact 5, 8, and 9. Partially accepted in finding of fact 9. Partially accepted in finding of fact 9. Partially accepted in finding of fact 9. Partially accepted in finding of fact 16. Partially accepted in findings of fact 9, 14, 15, and 16. Partially accepted in findings of fact 18, 24, and 27. Partially accepted in findings of fact 18 and 28. Partially accepted in finding of fact 28. Partially accepted in finding of fact 18. Partially accepted in finding of fact 22. Partially accepted in finding of fact 21. Partially accepted in findings of fact 20 and 26. Partially accepted in finding of fact 26. Partially accepted in findings of fact 20 and 26. Rejected as being irrelevant, or unnecessary. Rejected as being unnecessary, argument, or a conclusion of law. Partially accepted in finding of fact 27. Partially accepted in finding of fact 27. Rejected as being argument, or a conclusion of law. Rejected as being unnecessary, argument, or a conclusion of law. Rejected as being irrelevant, unnecessary, argument, or a conclusion of law. Partially accepted in finding of fact 25. Partially accepted in finding of fact 33 Partially accepted in finding of fact 33. Partially accepted in finding of fact 40. Rejected as being irrelevant, or unnecessary. Rejected as being irrelevant, or unnecessary. Rejected as being irrelevant, or unnecessary. Partially accepted in finding of fact 10. Rejected as being unnecessary, or a conclusion of law. Partially accepted in findings of fact 27 and 41. Respondent DEP's Proposed Findings of Fact Partially accepted in finding of fact 1. Partially accepted in finding of fact 2. Partially accepted in finding of fact 3. Partially accepted in finding of fact 4. Partially accepted in finding of fact 5. Partially accepted in finding of fact 6. Partially accepted in finding of fact 7. Partially accepted in finding of fact 8. Partially accepted in findings of fact 9 and 10. Partially accepted in finding of fact 11. Partially accepted in findings of fact 12 and 13. Partially accepted in finding of fact 15. Partially accepted in finding of fact 14. Partially accepted in finding of fact 15. Partially accepted in finding of fact 16. Partially accepted in finding of fact 17. Partially accepted in finding of fact 18. Partially accepted in findings of fact 19 and 20. Partially accepted in finding of fact 20. Partially accepted in finding of fact 20. Partially accepted in finding of fact 20. Partially accepted in finding of fact 21. Partially accepted in finding of fact 22. Partially accepted in findings of fact 25 and 26. Partially accepted in finding of fact 26. Partially accepted in finding of fact 26. Partially accepted in finding of fact 27. Partially accepted in finding of fact 27. Partially accepted in finding of fact 28. Partially accepted in finding of fact 29. Partially accepted in finding of fact 30. Partially accepted in finding of fact 31. Partially accepted in finding of fact 32. Partially accepted in finding of fact 33. Partially accepted in finding of fact 33. Partially accepted in finding of fact 34. Partially accepted in finding of fact 35 Partially accepted in finding of fact 36. Partially accepted in finding of fact 37. Partially accepted in finding of fact 37. Partially accepted in finding of fact 38. Partially accepted in finding of fact 39. Partially accepted in finding of fact 40. Partially accepted in finding of fact 41. NOTE: Where a proposed finding of fact has been partially accepted, the remainer has been rejected as being irrelevant, unnecessary, cumulative, not supported by the evidence presented, not supported by the greater weight of the evidence, argument, or a conclusion of law. COPIES FURNISHED: J. A. Jurgens, Esquire Post Office Box 1178 Winter Park, Florida 32790-1178 Timothy C. Laubach, Esquire Sears and Manuel, P.A. 1218 Mount Vernon Street Orlando, Florida 32803 M.Tracy Biagiotti, Esquire Scott Hawkins, Esquire Jones, Foster, Johnston & Stubbs, P.A. Post Office Box 3475 West Palm Beach, Florida 33402 (Attorney for Jupiter Hills Lighthouse Marina) Lynette L. Ciardulli Assistant General Counsel Department of Environmental Protection 2600 Blair Stone Road Tallahassee, Florida 32399-2400 Douglas MacLaughlin Assistant General Counsel Department of Environmental Protection 2600 Blair Stone Road Tallahassee, Florida 32399-2400 Kenneth Plante General Counsel Department of Environmental Protection Douglas Building 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 Virginia B. Wetherell, Secretary Department of Environmental Protection Douglas Building 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000
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. /
