Findings Of Fact Based upon my observation of the witnesses and their demeanor while testifying, the arguments of counsel, posthearing memoranda and the entire record compiled herein, the following relevant facts are found. On January 15, 1979, the then applicant, General United, submitted a joint application to the Department of Army Corps of Engineers and the Florida Department of Environmental Regulation for a permit to "remove a rock bulkhead approximately twenty (20) feet wide and fifty (SO) feet long to a minus five (- 5) feet below low tide, to connect upland canals to access channels." The excavation as requested pursuant to the permit application, if approved as applied for, would require the deposit of approximately 167 cubic yards of fill on uplands owned by the applicant (DER Exhibit 1). By letter dated May 15, 1979, Respondent, Department of Environmental Regulation, gave Petitioner notice that it intended to deny Petitioner's permit application for reasons, summarily stated, that the dredging/excavation as requested in the permit application would result in a degradation of local water quality and that the project, as applied for, would result in a reduction of the capability of habitat to support a well-balanced fish and wildlife population and an impairment of the management of feasibility of fish and wildlife management resources contrary to the public interest as defined in Sections 253.123 and 403.087. Florida Statutes. Public Law 92-500 and Section 17-4.07, Florida Administrative Code. Respondent thereafter filed a request for a formal administrative hearing pursuant to Section 120.57(1), Florida Statutes. The Petitioner called as adverse witnesses Messrs. R. F. Dumas, Field Agent; Donald Lawless, Chemist; and Curtis Kruer, Field Agent, all employed by the Department of Environmental Regulation. Petitioner's final witness was Dr. Earl Rich, a professor of biology and environmental consultant. Respondent called as witnesses Mike Nowicki, a Dredge and Fill Supervisor; and Messrs. Curtis Kruer and Donald Lawless. As applied for, the project entails the excavation of an access channel approximately twenty (20) feet wide and fifty (50) feet long to a depth of five (5) feet from Petitioner's uplands to the waters of Florida Bay. The parties stipulated that the opening would enter the waters of Florida Bay, which is a Class III water body as defined by Respondent's rules and regulations (Joint Exhibit 2). In the area of Sunset Acres, there is a canal system of approximately 1,940 feet, approxirately one-half of which is occupied by mobile home construction. The canal system is isolated from Florida Bay at the present time by a boulder bulkhead with an elevation of approximately three (3) feet above mean water level (Petitioner's Exhibit 3 and testimony of Rich). The adjacent canals are all approximately fifty (50) feet wide with an average depth of approximately seventeen (17) feet. There is agreement among the witnesses that the interior canal system is stratified and is very good to a depth of appraximately ten (10) feet, at which point the water quality deteriorates. At the lower levels, dissolved oxygen and specie diversity are low. Specie diversity in the upper column (distance of approximately ten (10) feet) supports approximately fifteen (15) fish species and twenty-two (22) species of macro-invertebrates . Algae growth was observed on the canal wall which denotes a continuity of plant and life support systems (testimony of Dr. Rich). Evidence reveals that the plant and fish specie diversity in the adjacent canal system was equally as diverse as that in the adjoining open waters of Florida Bay. The tests conducted in the water columns reflect that the dissolved oxygen levels in the upper column had average concentrations of approximately four (4) parts per million and that dissolved oxygen levels in adjacent canals which were open to Florida Bay fell in the range of 4.3 to 4.6 parts per million, 1/ which in some instances is below Class III standards (testimony of R. F. Dumas). The evidence reveals that there will he no discharge from septic tanks inasmuch as there is a collection and wastewater treatment plant for Sunset Acres. The testimony reveals that the proposed project is situated away from the prevailing winds and that there is little likelihood than detritus will be dumped into the canal systems by natural wind and wave action. In this regard, the evidence reveals that the tidal fluctuations in this area of Florida Bay are less than six (6) inches (testimony of Dr. Rich and Mr. Dumas). Evidence also reveals that inasmuch as the water quality in the interior canal system is strikingly similar and of the same quality as that water outside the canal systems, there is no reason to suspect that the opening of this project would degrade the water quality of the present canal systems based on the minimal tidal fluctuations in the area and the location of the project which is away from the prevalent winds. Nor were any facts introduced to support Respondent's concern for its assumption that the subject project would result in a degradation of water quality. Nor was there any showing that the proposed project, if permitted. would interfere with or otherwise hamper the propagation of fish and wildlife habitat. To the contrary. there is evidence that there is greater fish specie diversity in the canal systems than in the adjacent open waters of Florida Bay. It is likely that by permitting this project, the adjacent waters will benefit from such a rich and varied specie diversity (testimony of Dr. Rich and Petitioner's Exhibit 3).
Recommendation Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, James E. Bradwell, held a public hearing in this case on February 27, 1980, in Key West, Florida. The parties stipulated that the hearing closed March 18, 1980, the date on which the parties were granted leave to file memoranda supportive of their respective positions. Said memoranda has been received and was considered by me in preparation of this Recommended Order.
Findings Of Fact On December 12, 1991, Petitioner applied to the Respondent for a permit/water quality certification to grade and level, in stages, approximately 20,000 square feet or 0.45 acres of lake front to remove and prevent the formation of berms and depressions in the exposed lake bottom adjacent to his property. The project site is located at 3955 Placid View Drive which lies along the shoreline of Lake Placid, a natural waterbody in Highlands County, Section 24, Township 37 South, Range 29 East. Lake Placid is not an aquatic preserve, and is not an outstanding Florida water. It has been designated as a Class III waterbody. Petitioner's unsubdivided lot lies at the western end of Lake Placid. The shoreline measures approximately 203 feet. The western lot line also measures 203 feet, and fronts on Placid View Drive. The water level of Lake Placid has receded in recent years which allows large expanses of what was historically lake bottom to become beaches, lawns, and areas of habaceous marsh. The specific project which the Petitioner proposes calls for the leveling of the berms and depressions which form on the exposed lake bottom from collected water, which stagnates and permits various noxious creatures, including mosquitoes, to breed in them. The berms and depressions are approximately six inches high or deep and between one and three feet wide, and generally extend the length of the shoreline. The proposed area affected is approximately 20,000 square feet or 0.45 acres of lake front, although Petitioner proposes to actually level a much smaller area in stages of approximately 2,000 square feet on an "as needed" basis. No material other than sod in the beach area is proposed to be brought from or removed to off-site locations. Petitioner is highly sensitive to mosquito bites. The area proposed for leveling was previously cleared of vegetation without authorization. Very little revegetation of the shoreline has occurred since the area was cleared. Vegetation colonizing the beach, at present, includes pennyworts (Centella asiatica and Hydrocotyle umbellata) and water- hyssops (Bacopa sp.) Blue green algae was observed in the depressions which have formed along the shore since the clearing. Fauna observed on-site included gulls (Larus sp.), small fish in the adjacent lake shallows, and water-boatmen (Order Hemiptera) in the depressions. An area landward of the wetlands considered here was also cleared previously and is proposed to be seeded. An adjacent, uncleared shoreline was vegetated with primrose willow (Ludwigia sp.), cattail (Typha sp.), flat sedge (Cyperus odorata), and other wetland species for an almost 100% plant coverage. The Petitioner proposes to use a small tractor in leveling of the shore which will cause turbidity in the lake water. No turbidity controls were proposed by the Petitioner. Petitioner failed to provide reasonable assurances that the turbidity caused by the earthmoving equipment in areas presently above water would not cause degradation of water quality in Lake Placid; would not contribute to the long-term degradation of water quality in the lake caused by upland runoff that would flow into the lake without benefit of retention or filtration by shoreland vegetation (freshwater herbaceous habitat) which would be permanently removed under Petitioner's proposal. Nutrients such a nitrogen and phosphorus and pollutants such as pesticides, herbicides and other chemicals commonly used in lawn and garden care would be included in the runoff, and would have an adverse impact on fishing and marine productivity in the lake. The project would have a minor adverse impact on erosion and soil stabilization in the area surrounding the lake. Petitioner has failed to provide reasonable assurance that the proposed project is not contrary to the public interest. Petitioner can mitigate the project by eliminating the use of heavy equipment and substitute hand equipment to smooth out ruts, berms and depressions in jurisdictional areas.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Petitioner's application for Wetland Resource Regulation permit be DENIED. DONE and ENTERED this 8th day of March, 1993, in Tallahassee, Florida. DANIEL M. KILBRIDE 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 ths 8th day of March, 1993. COPIES FURNISHED: Francine M. Ffolkes, Esquire Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32399-2400 Mr. Vincent J. Woeppel 3955 Placid View Drive Lake Placid, Florida 33852 Daniel H. Thompson Department of Environmental Regulation Acting General Counsel Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32399-2400 Virginia B. Wetherell Secretary Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32399-2400
The Issue The issue is whether an Environmental Resource Permit should be issued to KGB Lake Howell, LLC, authorizing the construction of a surface water management system to serve an apartment complex known as the Estates at Lake Howell in the City of Casselberry, Florida.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: Background In this proceeding, Respondent, St. Johns River Water Management District (District), proposes to issue an Environmental Resource Permit to Respondent, KGB Lake Howell, LLC (Applicant), authorizing the construction of a stormwater management system to serve a 240-unit apartment complex known as the Estates of Lake Howell. The project will be located on an undeveloped tract of land in the City of Casselberry (City), Seminole County, Florida, just north of the Orange County line. It will include ten three-story buildings, parking, clubhouse/ administration building, amenity complex, and wet detention pond. The project also incorporates a 3.62-acre stormwater pond, now owned and used by Seminole County (County), lying east of Lake Ann Lane across from the project site, which was included in the overall acreage calculations for the purpose of increasing apartment density on the site. The Applicant has authorization from the County to apply for the permit incorporating that tract of land. The pond will continue to function as a stormwater facility for the County and will not accommodate stormwater from the project site. The project site consists of 38.9 acres located on the north side of Howell Branch Road, east of State Road 436 (also known as Semoran Boulevard), and west of Lake Ann Lane in the City. The site is currently undeveloped and includes an abandoned orange grove and upland pine flatwoods community, which make up approximately 14.6 acres, while the remaining 24.3 acres is a mixed forested wetland system. The property is now owned by the Harold Kasik Living Trust (Kasik property), which has a contract for purchase with the Applicant. The Kasik property is in the shape of a rectangle, 648 feet by 2,530 feet, with its long sides running north- south. It is bordered on the north and east by single-family residential and vacant land, to the south by commercial development, and to the west by high-density residential and commercial development. The property has a high elevation of approximately 83 feet on its southeastern corner and falls to the north/northeast, where the edge of the wetland system is at an elevation of 63 or 64 feet. The major development constraint on the site is the large wetland tract on the northern portion of the property. In order to minimize proposed impacts to the wetlands, the Applicant proposed the transfer of the development entitlements from the County land to benefit the Applicant's property. More specifically, the Applicant will acquire the County property, the Applicant will simultaneously grant a perpetual drainage easement over the property to the County, the Applicant will maintain the landscaping of the property in perpetuity, the Applicant will convey around five acres of wetlands on the northern end of the Kasik property to the County in fee simple, and the City will allow the transfer of development rights from the property. The project will adversely impact 0.99 acres of low- quality wetlands, of which 0.72 acres are to be dredged and 0.27 acres are to be filled to provide the fencing around the wet detention facility. To offset this impact, the Applicant proposes to preserve 17.8 acres of forested wetlands, plus 1.2 acres of forested uplands, or a mitigation ratio of 18:1. The District's guidelines for preservation mitigation applicable to this project are 10:1 to 60:1 for wetland impacts and 3:1 to 20:1 for upland impacts; thus, the mitigation plan falls within these guidelines. Under current conditions, stormwater runoff from the project site sheet flows into the on-site wetland and ultimately Lake Howell (the Lake), a Class III water body which meets all applicable water quality standards and is not an Outstanding Florida Water. After development occurs, stormwater from the developed portions of the property will be conveyed to a wet detention pond for required water quality treatment and peak discharge rate attenuation. After treatment in the detention pond, the water will discharge to the on-site wetland, as it does now, and eventually will be conveyed into the Lake. Off-site flows will continue to be conveyed into the on-site wetland. The wet detention pond, which has a minimum depth of twelve feet and a permanent pool of water with a mean depth of two to eight feet, has been designed to accommodate a 25-year, 24-hour storm. Post-development discharge will be less than pre-development, and the outfall structure has been designed to avoid channelization in the wetlands after the point of discharge. Since at least the late 1940's, Petitioner, Shirley Haynes, or her relatives, have owned, or resided on, a multi-acre tract of land just north of the project site at 2764 Lake Howell Lane. She has substantial frontage on the south side of the Lake. The southern portion of her property, which are wetlands, adjoins the northern boundary of the project site. For the past three years, Petitioner, Egerton van den Berg, has resided on a ten-acre tract of land at 1245 Howell Point, which is northeast of the project site. He has approximately 235 feet of frontage on the south side of the Lake. As argued in their Proposed Recommended Order, Petitioners generally contend that the application is "materially deficient" in several respects in violation of Rule 40C-4.101; that the Applicant has failed to satisfy Rule 40C-4.301(1)(c) and (d), which in turn constitutes a failure to meet the requirements of Rule 40C-4.302(1)(a)-(c); that the Applicant failed to satisfy the criteria in Sections 12.2.3(a)-(f), 12.2.1, 12.2.1.1, 12.2.1.3, 12.2.2.3(a)-(e), 12.2.2.4(a) and (b), 12.3.2.2(c), and 12.3.8(a) of the Applicant's Handbook: Management and Storage of Surface Waters (Applicant's Handbook); that the District did not adequately consider the cumulative impacts of the project as required by Section 373.414(8)(a), Florida Statutes; that a low flow analysis of the Lake was not performed, as required by Rule 40C-8.011(5); that the Applicant did not submit detailed mitigation plans as required by Section 12.3.3.2 of the Applicant's Handbook; that the 18:1 ratio for mitigation proposed by the Applicant is inappropriate; and that the District should not approve the density of the apartments established by the City. These concerns, to the extent they have been identified as issues in the parties' Pre-Hearing Stipulation, are addressed in the findings below. Where contentions have been raised by Petitioners, such as the placement of the detention pond over a depressional area, and they have not been argued in the Proposed Recommended Order, they have been deemed to be abandoned. Conditions for issuance of permits Rule 40C-4.301(1)(a)-(k), Florida Administrative Code, specifies eleven substantive requirements for which reasonable assurance must be given in order for a standard permit to be issued. Subsection (3) of the same Rule provides that the standards and criteria contained in the Applicant's Handbook shall determine whether the foregoing reasonable assurances have been given. Additional conditions for the issuance of a permit are found in Rule 40C-4.302(1) when the project, or any part of it, is located in, on, or over wetlands or other surface waters. Therefore, because a part of the Applicant's system will be located in wetlands, the Applicant must also give reasonable assurance that the project will not be contrary to the public interest, and that it will not cause unacceptable cumulative impacts upon the wetlands or surface waters. a. Rule 40C-4.301 Paragraphs (a)-(c) of the Rule require that an applicant provide reasonable assurance that the project will not cause adverse water quantity impacts to receiving waters and adjacent lands, adverse flooding to on-site or off-site property, or adverse impacts to existing surface water storage and conveyance capabilities. If a system meets the requirements of Section 10.2.1(a) through (d) of the Applicant's Handbook, there is a presumption that the system complies with the requirements of Paragraphs (a) through (c). This presumption has been met since the evidence supports a finding that the post- development peak rate of discharge will be lower than the pre- development peak rate of discharge for a 24-hour, 25-year storm event. Therefore, the Applicant's system meets the requirements of these Paragraphs. Paragraph (d) of the Rule requires that an applicant give reasonable assurance that the project "will not adversely impact the value of functions provided to fish and wildlife and listed species by wetlands and other surface waters." To satisfy this requirement, an applicant must also demonstrate compliance with the two-prong test in Sections 12.2.2 and 12.2.2.4 of the Applicant's Handbook. Section 12.2.2 requires that an applicant provide reasonable assurance that a regulated activity will not impact the values of wetlands and other surface water functions so as to cause adverse impacts to the abundance, diversity, and habitat of fish, wildlife, and listed species. In its proposal, the Applicant proposes to fill a total of 0.99 acres of wetlands. Since these impacts will eliminate the ability of the filled part of the on-site wetland to provide functions to fish and wildlife, the filling will cause adverse impacts. Under these circumstances, Section 12.2.1.1 requires that the Applicant either implement practicable design modifications to reduce or eliminate these adverse impacts or meet one of the exceptions under Section 12.2.1.2. Under Section 12.2.1.1, a proposed modification which is not technically capable of being done, is not economically viable, or which adversely affects public safety through the endangerment of lives or property is not considered practicable. The Applicant’s design for the proposed project went through a number of iterations prior to submittal to the District to reduce adverse impacts to the wetlands. During the permitting process, the District requested that the Applicant consider a number of other suggestions to reduce or eliminate the adverse impacts to wetlands such as adding a fourth floor to the apartment buildings to eliminate the need for one apartment building, building a parking garage for the tenants, and eliminating the tennis and volleyball courts. Because the Applicant provided detailed reasons why none of those suggestions were practicable, it was not required to implement any of those design modifications. In addition, the Applicant’s decision not to include a littoral zone around the stormwater pond did not increase the amount of wetland impacts as that engineering decision resulted in a stormwater pond that was simply deeper and not wider. Therefore, the Applicant has met the requirement to reduce or eliminate adverse wetland impacts. Section 12.2.1.1 only requires an elimination and reduction analysis when: (1) a proposed system will result in adverse impacts to wetland functions and other surface water functions so that it does not meet the requirements of Sections 12.2.2 through 12.2.3.7, or (2) neither one of the two exceptions within Section 12.2.1.2 applies. In determining whether one of the two exceptions in Section 12.2.1.2 applies, the District must evaluate the long- term ecological value of the mitigation proposed by the Applicant. If the mitigation is not adequate to offset the adverse impacts of the proposed system, then it is unlikely either exception in Section 12.2.1.2 will apply. As noted above, the Applicant’s proposed dredging and filling of the southern edge of the wetlands on the project site will eliminate the ability of that wetland area to provide functions to fish and wildlife. However, the Applicant’s mitigation plan of placing 17.8 acres of wetlands and 1.2 acres of uplands under a conservation easement to preserve that property in its natural state in perpetuity will fully replace the types of functions that the part of the wetlands proposed to be impacted provides to fish and wildlife. The mitigation plan will also offset the adverse impacts that this project will have on the value and functions provided to fish and wildlife by the impacted part of the wetlands. In this case, the first exception under Section 12.2.1.2(a) applies as it meets that Section's two requirements: the ecological value of the functions provided by the area of wetland to be adversely affected is low, and the proposed mitigation will provide greater long-term ecological value than the area or wetland to be adversely affected. Also, the quality of the wetland to be impacted is low. All of the proposed impacts will occur in the area of the wetland that was historically disturbed and in which nuisance and exotic species are prevalent. Due to nuisance and exotic vegetation, the ecological value provided by that area to wildlife is low. The mitigation for the proposed project will provide greater long-term ecological value to fish and wildlife than the part of the wetland proposed to be impacted because the proposed mitigation will preserve eighteen times more wetlands that are of higher quality and provide greater value than the wetland area to be impacted. The type of wetland to be preserved, a mixed forested wetland containing hardwoods, is rare for the area. Although the mitigation plan will provide greater long-term ecological value to fish and wildlife than the part of the wetland proposed to be impacted, the Applicant did not meet the second exception in the elimination and reduction rule under Section 12.2.1.2(b) because the wetlands to be preserved are not regionally significant. In addition to meeting the elimination and reduction rule through implementation of practicable design modifications, the Applicant also satisfied the same rule by meeting the first exception found in Section 12.2.1.2(a). Thus, the Applicant has satisfied Section 12.2.2, which is the first prong of the test to determine compliance with Paragraph (d). The second prong of the test to determine whether Paragraph (d) of the Rule has been satisfied is found in Section 12.2.2.4. That Section requires that an applicant give reasonable assurance that the activity will not change the hydroperiod of a wetland so as to affect wetland functions. For the following reasons, that prong of the test has been satisfied. Since the wetlands are primarily groundwater-influenced, the construction of the stormwater pond between the project and the wetlands will not adversely affect the wetlands. As the soils surrounding the pond are very porous with a high infiltration and percolation rate, water from the stormwater pond will still reach the wetlands through lateral seepage. Further, the Applicant will install an energy dissipating device on the outfall spout at the point of discharge so that water will be spread out from the stormwater pond as it discharges into the receiving wetlands. As noted earlier, this will prevent an adverse channelization effect. Finally, stormwater runoff from the surrounding basins that currently discharge into the wetlands will not be affected by the construction of the stormwater system. That runoff will continue to flow into the wetlands on the project site. Because the Applicant has satisfied Sections 12.2.2 and 12.2.2.4, Paragraph (d) of the Rule has been met. Paragraph (e) of the Rule generally requires that an applicant provide reasonable assurance that a project will not adversely affect the quality of receiving waters. Here, the Applicant has provided such assurance. This is because the system has been designed in accordance with all relevant District criteria. Also, the Applicant has proposed to revise Permit Condition 26 as follows: Condition 26. This permit authorizes construction and operation of a surface water management system as shown on the plans received by the District on June 14, 2001, and as amended by plan sheet C4 (Sheet 07 of 207) received by the District on January 23, 2002. In view of this revision, the Applicant's wet detention system complies with all of the design criteria contained in Rule 40C-42.026(4). Under Rule 40C-42.023(2)(a), compliance with the design criteria contained in Rule 40C-42.026 creates a presumption that state water quality standards, including those for Outstanding Florida Waters, will be met. This presumption has not been rebutted; therefore, the requirements of Paragraph (e) of the Rule have been satisfied. Further, Sections 12.2.4.1 and 12.2.4.2 state, in part, that reasonable assurance regarding water quality must be provided both for the short term and the long term, addressing the proposed construction, alteration, operation, maintenance, removal, and abandonment of the system. The Applicant has provided reasonable assurance that this requirement is met through the design of its surface water management system, its long-term maintenance plan for the system, and the long and short-term erosion and turbidity control measures it proposes. If issued, the permit will require that the surface water management system be constructed and operated in accordance with the plans approved by the District. The permit will also require that the proposed erosion and turbidity control measures be implemented. Section 12.2.4.5 does not apply because there are no exceedances of any water quality standards at the proposed receiving water. Also, Sections 12.2.4.3 and 12.2.4.4 do not apply because the Applicant has not proposed any docking facilities or temporary mixing zones. Paragraph (f) of the Rule requires that an applicant not cause adverse secondary impacts to the water resources. Compliance with this requirement is determined by applying the four-part test in Section 12.2.7(a) through (d). As to Section 12.2.7(a), there are no secondary impacts from construction, alteration, and intended or reasonably expected uses of the proposed system that will cause water quality violations or adverse impacts to the wetland functions. The Applicant chose not to provide buffers abutting the wetlands but rather chose measures other than buffers to meet this requirement. The Applicant has provided reasonable assurance that secondary impacts will not occur by placing the stormwater pond between the planned project and the wetlands, so that the pond itself will serve as a buffer by shielding the wetland from the lighting and noise of the project, and by acting as a barrier to keep domestic animals out of the wetlands. In addition, the Applicant increased the amount of property to be preserved as mitigation by adding 2.97 acres of wetlands and 1.2 acres of uplands to the mitigation plan to mitigate for any remaining secondary impacts. Accordingly, the first part of the secondary impacts test in Section 12.2.7(a) is satisfied. As to Section 12.2.7(b), because there is no evidence that any aquatic or wetland-dependent listed animal species use uplands for existing nesting or denning adjacent to the project, the second part of the test has been met. No adverse secondary impacts will occur under the third part of the test in Section 12.2.7(c) because the proposed project will not cause impacts to significant historical or archaeological resources. Finally, adverse secondary impacts as proscribed by Section 12.2.7(d) will not occur because no evidence was presented that there would be additional phases or expansion of the proposed system or that there are any onsite or offsite activities that are closely or causally linked to the proposed system. Therefore, the proposed project satisfies Paragraph (f) of the Rule. Paragraph (g) of the Rule requires that an applicant provide reasonable assurance that a project will not adversely impact the maintenance of surface or ground water levels or surface water flows established in Chapter 40C-8. Minimum (but not maximum) surface water levels have been established for the Lake pursuant to Chapter 40C-8 for the basin in which the project is located. The project will not cause a decrease of water to, or cause a new withdrawal of water from, the Lake. Therefore, the project satisfies this requirement. Finally, Petitioners have acknowledged in their Proposed Recommended Order that the Applicant has given reasonable assurance that the requirements of Paragraphs (h), (i), (j), and (k) have been met. The parties have also stipulated that the receiving water (Lake Howell) meets all Class III water quality standards. Therefore, the project satisfies the requirements of Subsection 40C-4.301(2). Rule 40C-4.302 - Public Interest Test Under Rule 40C-4.302(1)(a)1.-7., an applicant must provide reasonable assurance that the parts of its surface water management system located in, on, or over wetlands are not contrary to the public interest. Similar requirements are found in Section 12.2.3. The Applicant has provided reasonable assurance that the parts of the project that are located in, on, or over wetlands (mainly the detention pond and fill) are not contrary to the public interest, because the evidence showed that all seven of the public interest factors to be balanced are neutral. Because the proposed permanent mitigation will offset the project’s adverse impacts to wetlands, no adverse effects to the conservation of fish and wildlife due to the project’s permanent nature will occur. The evidence also showed that best management practices and erosion control measures will ensure that the project will not result in harmful erosion or shoaling. Further, it was demonstrated that the project will not adversely affect the flow of water, navigation, significant historical or archaeological resources, recreational or fishing values, marine productivity, or the public health, safety, welfare or property of others. Finally, the evidence showed that the project’s design, including permanent mitigation, will maintain the current condition and relative value of functions performed by parts of the wetland proposed to be impacted. Therefore, the project meets the public interest criteria found in Rule 40C-4.302(1)(a). Rule 40C-4.302(1)(b) - Cumulative Impacts Rule 40C-4.302(1)(b) and Section 12.2.8 require that an applicant demonstrate that its project will not cause unacceptable cumulative impacts upon wetlands and other surface waters within the same drainage basin as the regulated activity for which the permit is being sought. Under this requirement, if an applicant proposes to mitigate the adverse impacts to wetlands within the same drainage basin as the impacts, and if the mitigation fully offsets these impacts, the District will consider the regulated activity to have no unacceptable cumulative impacts upon wetlands and other surface waters. The Applicant has chosen to mitigate for the impacts to 0.99 acres of wetlands by preserving 17.8 acres of wetlands and 1.2 acres of uplands on-site. Since this mitigation will occur in the same drainage basin as the impacts and the mitigation fully offsets those impacts, the Applicant satisfies the requirements of the Rule. Rule 40C-4.302 - Other Requirements The parties have stipulated that the requirements of Paragraphs (c) and (d) of Rule 40C-4.302(1) do not apply. There is no evidence that the Applicant has violated any District rules or that it has been the subject of prior disciplinary action. Therefore, the requirements of Subsection (2) of the Rule have been met. Miscellaneous Matters County Pond Site The Seminole County pond site located on the east side of Lake Ann Lane and across the street from the project is not a jurisdictional wetland and does not have any wetland indicators. It is classified as an upland cut surface water. The Applicant is not proposing to impact any wetlands at the pond site, and the site is not part of the proposed mitigation plan for the project. The permit in issue here is not dependent on the pond site, and nothing in the application ties the project with that site. Indeed, the transfer of density rights from the County property is not relevant to the District permitting criteria. Review of Application When the decision to issue the permit was made, the District had received all necessary information from the Applicant to make a determination that the project met the District's permitting criteria. While certain information may have been omitted from the original application, these items were either immaterial or were not essential to the permitting decision. The application complies with all District permitting criteria. Contrary to Petitioners' contention, the Applicant does not have to be the contract purchaser for property in order to submit an application for that property. Rather, the District may review a permit application upon receipt of information that the applicant has received authorization from the current owners of the property to apply for a permit. In this case, the Applicant has the permission of the current owners (the Harold Kasik Living Trust).
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the St. Johns River Water Management District enter a final order granting the requested permit as described above. DONE AND ENTERED this 29th day of March, 2002, in Tallahassee, Leon County, Florida. ___________________________________ DONALD R. ALEXANDER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 29th day of March, 2002. COPIES FURNISHED: Kirby B. Green, III, Executive Director St. Johns River Water Management District Post Office Box 1429 Palatka, Florida 32178-1429 Shirley B. Haynes 2764 Lake Howell Road Winter Park, Florida 32792-5725 Egerton K. van den Berg 1245 Howell Point Winter Park, Florida 32792-5706 Charles A. Lobdell, III, Esquire St. Johns River Water Management District Post Office Box 1429 Palatka, Florida 32178-1429 Meredith A. Harper, Esquire Shutts & Bowen Post Office Box 4956 Orlando, Florida 32802-4956
Findings Of Fact Based upon the evidence adduced at hearing, and the record as a whole, the following Findings of Fact are made: Petitioner is a property owners association. Its members own property in the Cahill Pines and Palms subdivision (hereinafter referred to as "Cahill") located on Big Pine Key in township 66 south, range 29 east, in Monroe County, Florida. Cahill is a primarily residential, waterfront subdivision with a man- made canal system. It was platted in 1955. Construction of the canal system began shortly thereafter and was completed in the early 1970's. The Cahill canal system consists of six canals: a 2300 feet long and 75 foot wide, east-west, main feeder canal that dead-ends at its eastern terminus and connects with Pine Channel at its western end /2 (hereinafter referred to as "Canal #1"); and four shorter, /3 but as wide, north-south canals which dead-end at their northern termini and either intersect with, or but for an obstruction would intersect with, Canal #1, at their southern ends (hereinafter referred to as, from west to east, "Canals #2, 3, 4, 5, and 6"). The approximate average water depths of the six canals are as follows: Canal #1, first 1500 feet, west to east: 17.1 feet; Canal #1, remaining 800 feet: 13.3 feet; Canal #2: 16.9 feet; Canal #3: 14.4 feet; Canal #4: 13.2 feet; Canal #5: 13.5 feet; and Canal #6: 15.3 feet. At the northern end of Canal #2 is a full-service commercial marina which has been in operation for at least seven years. The Cahill canal system is obstructed in two areas by earthen plugs: at the southern end of Canal #3 (hereinafter referred to as the "north plug"); and in Canal #1, approximately 1500 feet to the east of Pine Channel (hereinafter referred to as the "south plug"). The two plugs, which contain seagrasses, mangroves and other vegetation, are located on land that is privately owned and that has not been acquired by the federal government to be a part of the National Key Deer Refuge. Because of the existence of the plugs, navigational access to the open waters of Pine Channel from the Cahill canal system is available only from Canal #2 and from that portion of Canal #1 that is to the west of the south plug (hereinafter referred to as the "open or unplugged canals"). The remainder of the canal system is closed off (hereinafter referred to as the "closed or plugged canals"). The open canals contain a total of 25.964 million gallons of water and the closed canals contain a total of 38.964 million gallons of water. Neither the water in the open canals nor the water in the closed canals is presently of substandard quality. Fish and mollusks of various types are in abundant supply in the closed canals. There is a greater diversity and a larger number of living species in the open canals, however. The vegetation on the lots surrounding the Cahill canal system consists primarily of Australian Pines. The lack of other vegetation has resulted in scarification and presents a problem in terms of stormwater runoff entering the canals. This is particularly true with respect to the undeveloped lots, which are unlandscaped /4 and do not have an artificial shoreline. Of the 228 lots in the Cahill subdivision, approximately 73 are on the open canals (hereinafter referred to as the "open lots") and 155 are on the closed canals (hereinafter referred to as the "closed lots"). Approximately 44 of the open lots and approximately 75 of the closed lots are developed. Undeveloped open lots, on the average, sell for approximately $50,000.00. The average selling price of undeveloped closed lots is approximately $14,000.00 or $15,000.00. As a general rule, open lot residents of the Cahill subdivision, unlike their closed lot counterparts, have boats docked behind their homes. There is, as might be expected, considerably more boat traffic on the open canals than on the closed canals. The north and south plugs were the subject of a civil complaint filed in 1980 by the federal government in the United States District Court for the Southern District of Florida against Peace River Groveland, Inc., Charles Kinsell, Jr., and J.R. Shields. The matter was resolved by the entry of the following order by the judge assigned to the case: Whereas, the plaintiff, the United States of America, has filed a complaint in the above-styled matter, and the plaintiff and the defendant, by their respective attorneys, have each consented to the making and entry of this Final Judgment without further pleading or trial or adjudication of or finding on any issues of fact or law raised by the complaint. NOW, THEREFORE, without trial or adjudication of any issue of fact or law herein, and without this Final Judgment constituting evidence or admission by any party with respect to any issue in the pending action or in any other proceeding, and upon consent of the parties, it is hereby ORDERED, ADJUDGED AND DECREED as follows: I This Court has jurisdiction of the subject matter of this action and of the parties thereto. II The provisions of this Final Judgment shall be binding upon the parties jointly and severally, their successors and assigns; all directors, officers, agents, servants, and employees of the defendants. III For the purposes of this Order, all references to geographical locations shall be directed to the annotated Plat of the Cahill Pines and Palms Subdivision, Section 26 and 27, Township 66 South, Range 29 East, Monroe County, Florida, attached to this Order as Exhibit "A". IV Plaintiff and Defendants agree that PEACE RIVER GROVELAND, INC., owned and developed Blocks 6, 7, 8, 9, 10 of Cahill Pines and Palms Subdivision, Big Pine Key, in Sections 26 and 27, Township 66 South, range 29 East, Monroe County, Florida. During 1972 canals were excavated and plugs were left in at points "A" and "B". Between 1974 and 1979 the plugs (at Points "A" and "B") were breached two times by parties unknown. Both times the defendant, PEACE RIVER GROVELAND, INC., restored the plugs. V Defendants agree to maintain these canal plugs to the restored dimensions, unless and until an United States Army Corps of Engineers' permit to remove or otherwise alter these plugs has been granted. VI Plaintiff agrees to record this document in the official property records of Monroe County, Florida. VII Jurisdiction is retained for purpose of enabling the party to this Final Judgment to apply to this Court at any time for such further order and directions as may be necessary or appropriate for construction or carrying out of this Final Judgment, or for the modification or termination of any of the provisions thereof or for the enforcement or compliance thereof. Petitioner, on several prior occasions, has unsuccessfully sought a permit from the Department to remove the plugs. Its most recent prior application was denied by final order issued March 24, 1981, which adopted "in toto" the Recommended Order that the Hearing Officer had issued following a February 6, 1981, hearing. The permit application at issue in the instant case (hereinafter referred to as the "Application") was filed with the Department on July 19, 1991. It requests permission to permanently remove, to a depth of -5.5 feet N.G.V.D., the north and the south plugs, which, the Application accurately states, "are presently creating the blockages to property owners' access to Pine Channel and open water." The amount of material to be removed is considerably less than 10,000 cubic yards. Accompanying the Application was a letter, dated February 9, 1991, from John Cahill to Petitioner's President, the body of which read, in pertinent part, as follows: In response to your letter of January 28, 1991, we have no objections to you (as President of Cahill's Pines & Palms Property Owners Association) establishing a class action to remove the two blockages of the canals in said property. However, some years ago we sold the parcel which includes the blockages (and the present canals). At hand I do not have the addresses of the individuals that purchased this parcel but I am sure that if you contact either: Eric Kip . . . . or William Bradley . . . . They will be able to lead you in contacting them. I do appreciate that if opened these canals will connect to the canals which the County of Monroe has listed as owned by the heirs of Agnes M. Cahill[. I]f this is the reason for contacting us, you do in fact have our permission to proceed at your expense. I have not written to the County regarding this matter for the above mentioned reasons. The Department did not deem the Application complete until the spring of 1993, after it had received from Petitioner the results of a study of the Cahill canal system and its environs that had been done by John Larkin, an environmental consultant Petitioner had hired to perform the water quality sampling the Department required. Representatives of the Department and Petitioner engaged in considerable debate regarding the methods to be employed in conducting such sampling. A meeting on the matter was held on September 24, 1992, in the Department's Fort Myers office. Following the meeting, Petitioner's President sent the following letter, dated November 2, 1992, to Greg O'Connell, an Environmental Supervisor II in the Department's Water Resource Regulation Section: In regards to our meeting on September 1992 at your office for the compliance hearing, we have concluded that D.E.R. has accepted and acknowledged the completion of the original information supplied with ou[r] application with the exception of a water sample and a hydrographic survey as outlined during our meeting. The test sample stations and completion with four sample stations to be submitted to Mr. Ken Echternacht, P.E. of D.E.R. in Tallahassee. To further update our efforts and for your benefit as Superintendent of our application file, we had a meeting of our association membership and all present unanimously agreed to continue with our application to remove two plugs in the Cahill Subdivision located in Big Pine Key, Florida. The financial expense of approximately $17,000.00 is presently being negotiated. Mr. John Larkin will head these two remaining items of the completeness study. Mr. David Horan will continue as our representative and consulting attorney and continue to handle any exceptional litigations required. We would appreciate a written response to this letter and a directive from your office to the U.S. Army Corps of Engineers, Miami and the Dept. of Environmental Regulation in Marathon, Florida that our processing is being continued and that our application is not suspended at this time, as directed in your letter to these offices at an early date. Thank you for your continued work on this case. The Department responded to this November 2, 1992, letter, by sending the following letter to Petitioner's President: The Department received your letter on November 6, 1992 regarding the meeting held in the District's Fort Myers office on September 24, 1992. Water quality sampling and a hydrographic survey are the remaining items that prevent your application from being complete. As discussed in the September 24, 1992 meeting you are concerned about keeping costs down by sampling at a minimum number of stations and performing a minimum number of parameter analyses. Please be advised that the resultant data from four (4) sampling stations at unidentified locations must provide reasonable assurance that water quality will not be degraded by the proposed canal plug removal before a permit can be issued. All water quality sample results should be submitted to the Department's District Office at the above address. Application No. 441998285 remains incomplete as stated in the previous Department completeness summary letters. The Department is not pursuing denial of your application for failure to supply additional information since you have provided notification that progress is being made towards providing the remaining completeness items. Please provide the Department with an approximate date that the water quality data and hydrographic survey will be submitted. Until the completeness items are submitted, all processing of the application is suspended. If you have any questions concerning this matter, please contact Greg O'Connell at our Fort Myers office at the letterhead address or by telephone at (813) 332-6975. Water column and sediment samples were collected by Larkin in or around January of 1993. The samples were collected from four stations: two in the closed canals (one in Canal #3 and the other in Canal #5); one in the open canals, just to the south of the north plug; and one in Pine Channel. Samples from all four stations were integrated or composited and the integrated/composited samples were then tested and analyzed. The sediment samples were tested and analyzed one day after the expiration of the maximum allowable "holding time." With this one exception, the collection of the samples and their testing and analysis was accomplished in a scientifically sound manner designed to obtain accurate and reliable information regarding the composition and properties of these samples. It was Larkin's intention, if the testing and analysis of the integrated/composite samples revealed any "spike" (i.e., the presence of any contaminant in excess of minimum detection limits), to collect additional samples from each of the four stations and have them tested separately so as to determine from which station or stations the detected contaminant or contaminants had come. The testing and analysis of the integrated/composite water column samples failed to reveal the presence of any contaminants in excess of minimum detection levels, and the results of the testing and analysis of the sediment samples, considered in conjunction with the reported visual observations that had been made regarding the outstanding transparency of the water in the Cahill canal system, reflected no abnormalities of concern. Accordingly, no additional sampling, testing or analysis was done before this information was provided to the Department. In or about late February of 1993, the Department received the initial results of Larkin's study. By letter dated March 25, 1993, the Department notified Petitioner's President of what it considered to be the study's shortcomings. The body of the letter read as follows: The Department received your water quality sampling results on February 24 and 26, 1993. The sampling methodology used to collect the samples for the following parameters is not consistent with the Department and EPA procedures: WATER COLUMN Gasoline by-products Diesel by-products Pesticide scan Oils and grease SEDIMENT CHEMISTRY Aluminum Cadmium Copper lead Zinc Arsenic Diesel by-products Pesticide scan Herbicide scan Total organic carbon Specifically the background station was composited with potential impact stations (samples collected within the plugged canals) and a station located just outside of plugged canals. The data submitted does not provide representative water column and sediment quality in the plugged canals because it was mixed with the ambient station. The "integrated composites" collected and analyzed provide no means to compare the potential impact areas (plugged canals) with the ambient water quality. The purpose of collecting the water quality data is to determine if the proposed opening of the plugged canal system will have an [e]ffect on the adjacent Outstanding Florida Waters. The sampling methodology utilized is invalid and does not address the purpose of this investigation. The Department cannot make a determination of what potential impacts the opening of the plugged canal systems will have on the adjacent Outstanding Florida Waters. Reasonable assurances have not been provided that ambient water quality will not be degraded by the proposed canal plug removal. The total suspended solid samples were run after the expiration of the holding time and the resultant data is invalid. Water column total organic carbon samples were collected at depths and bottom, not mid-depth and 20 cm. above bottom as requested. Oxidation reduction potential data was collected at a sample depth of 2' and 10', not at 20 cm. above the bottom as requested. Please resample the above parameters using methodology consistent with the Department's request or request that the Department continue to process your application with the data submitted. The Department has not received the hydrographic survey requested in previous completeness summaries and discussed in the September 24, 1992 meeting held in the District's Fort Myers office. If you have any questions concerning this matter, please contact Greg O'Connell of our Fort Myers office at the letterhead address or by telephone at (813) 332-6975. Larkin, on behalf of Petitioner, responded to the Department by letter dated March 27, 1993. In his letter, Larkin argued that the sampling, testing and analytical procedures and techniques that were employed in his study were those upon which the Department and Petitioner agreed at their September 24, 1992, meeting in Fort Myers. Larkin asserted that "[t]his agreement was formed between the agency (FDER) and the Property Owners to save on exorbitant testing costs" and that the procedures and techniques agreed upon are "proven and accepted . . . throughout all agencies and . . . widely used to accomplish cost savings." Larkin then stated the following: The results were that there was no indication of any pollutant in the water column. The metals were all in normal range for any background comparison. The sediments showed counts in Fluoranthene (2700 ug/kg), Silvex (less than 0.75 ug/kg) and 2,4-D (less than 7.5 ug/kg). All parameters in the composite water column samplings were below contamination levels, even at the multiplier of 4 and found in much greater quantities throughout the Florida Keys. Consequently, no additional testing would be necessary as per our agreement. As indicated by your March 25, 1993 letter, it seems that you (FDER) are ignoring our compliance meeting on September 24, 1992 in regard to this issue. As you have stated, "the integrated composites collected and analyzed, provide no means to compare the potential impact areas (plugged canals) with the ambient water quality" is partially true. What is not stated, is that the composite water column data- at "extremely low" limits of detection- show no indication of parameters that would effect the quality of any water- anywhere- at any time, even at 4 times the minimum detection limit. Therefore, the procedure has saved the property owners several dollars in testing costs and should [as]sure F.D.E.R. that there [are] no water column pollutants in the area of the 4 stations, including the ambient areas. Ergo, the ambient water quality will not be degraded by the proposed canal plug removal and is even more clear to that fact in the individual testing included at the individual stations. In regard to the suspended solids being tested after the expiration of the holding period, please forgive the lab on record. The samples and handling of the same were completed as noted in the enclosed chain of custody record. The lab apologizes and will re-run any more TSS samples free of charge, if necessary. However, the future sampling will most likely be of better quality. As stated in the data sent to F.D.E.R., there was a 3" rain event just before sampling. As stated in the study in regard to secchi disc readings, the water clarity was improving. Please advise me if you want repeated sampling of the parameter or if you will accept the long approved method of secchi reading in lieu of the fact the ambient water was less clear than the closed canals. Water column T.O.C. samples were collected as required. The lab report only typed out the last word of the sample description. Please refer to the sample data (samples run on sample points as calibrated insitu on Jan. 13, 1993 data sheet) and also on the enclosed chain of custody record. Oxidation redux potential was not only taken as required, but was included at many other depths and stations where it was not required by F.D.E.R. Please refer to Jan. 13 & Jan. 18, 1993 sample data insitu sheets. Also please read about the RPD (Redux Potential- Discontinuity layer) in the conclusion section of my report. In light of the above facts, I request that you read the Cahill Canal Study sent to you in depth and please note that the additional data included in the study paints a picture of un-requiredthe Cahill canal eco-system,[ a] holistic view that show[s] the plugged canals as no threat whatsoever to the ambient waters. With respect to the "hydrographic survey" the Department required, Larkin promised to provide a "complete study" sometime after April 8, 1993. Following this exchange of letters in March of 1993, neither Petitioner nor anyone acting on its behalf conducted any further water column or sediment sampling, testing or analysis. On or about May 20, 1993, the Department conducted a field survey and appraisal of the project site. During its field survey and appraisal, the Department took approximately 56 dissolved oxygen readings at 19 different stations (18 in the Cahill canal system and one in Pine Channel). /5 The highest reading was 13.3 milligrams per liter, which was obtained at a station at the northern terminus of Canal #3. There were only two readings below 5.0 milligrams per liter (a 4.5 milligrams per liter reading obtained at a station in Canal #6 and a 4.6 milligrams per liter reading obtained at a station in Canal #5). The two readings obtained from the station in Pine Channel were both 9.3 milligrams per liter. The hydrographic information that Petitioner provided the Department was reviewed by Kenneth Echternacht, a hydrologist employed by the Department. After reviewing the information, Echternacht reached the following scientifically sound and credible conclusions, which he reduced to writing in a memorandum, dated June 25, 1993, that he sent to O'Connell: The estimated flushing for the presently open portion of the waterway was calculated to be 14.5 days. The flushing for the open section exceeds the 4 day flushing criterion by approximately 3.6 times. Clearly, the open portion poses a potential problem to the maintenance of acceptable water quality. For the presently closed sections of the waterway, the calculated flushing time was found to be 38.6 days. Again, this system would pose a significant potential for contamination to adjacent open waters if opened for use. The waters behind the barrier that presently appear to pose no problem would clearly become a repository for contaminants associated with boat usage. Because of the exceptionally long flushing time, contaminants would build up over time. Below standard water quality throughout the waterway would be expected and, associated with this, below standard water would be exported into adjacent clean water on each ebbing tide. Recommendation Based on hydrographic considerations, the project is not permittable. On August 20, 1993, the Department issued a notice of its intent to deny Petitioner's application for a permit for its plug removal project. In its notice the Department listed six proposed "changes to the project [that] may make the project permittable." Removal of the plugs as proposed will result, at least temporarily, in the elimination of the vegetation presently found on the plugs. Any regrowth would take six months to a year and be in the form of seagrasses or algae. Petitioner's plug removal project will also spur development in the Cahill subdivision and lead to an increase in boat traffic in the Cahill canal system, as well as in the adjacent waters of Pine Channel. Such activity will result in the discharge of additional contaminants in these waterways. As Echternacht stated in his June 25, 1993, memorandum that he sent to O'Connell, "[b]ecause of the [canal system's] exceptionally long flushing time, [these] contaminants would build up over time" and result in a significant degradation of the water quality of not only the Cahill canals, but also of Pine Channel, into which Cahill canals flow. This degradation of water quality will have an adverse effect on marine productivity and the conservation of fish and wildlife that now inhabit these waterways. Consequently, in the long run, the removal of the plugs will negatively impact fishing opportunities in the area. On the other hand, the project will have a beneficial effect on navigation and recreational boating and related activities. It will have no impact on historical and archaeological resources. Backfilling the canals to a depth of -6.0 MLW in conjunction with plug removal, as the Department suggested in its August 20, 1993, Notice of Permit Denial, would result in less deterioration of water quality than would otherwise be the case, but it would not completely solve the water quality problems caused by plug removal. Moreover, such backfilling would create an ideal habitat for the upside-down stinging jellyfish, whose presence would discourage people from using the canals for swimming and similar recreational activities. In any event, Petitioner has indicated that this proposed mitigative measure is unacceptable to it. Petitioner has proposed no mitigative measures of its own, although it has suggested that "future monitoring could be set up to determine any possible water quality deterioration" and if "there was any 'significant' water quality deterioration . . . the plugs could be reconstructed in their present location."
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Department of Environmental Protection enter a final order denying Petitioner's application for a dredge and fill permit to remove the north and south plugs separating the open and closed canals in the Cahill canal system. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 9th day of May, 1994. STUART M. LERNER 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 9th day of May, 1994.
The Issue The issues are whether Respondent, Mosaic Fertilizer, LLC (Mosaic), has provided reasonable assurances that the proposed mining and reclamation of the South Fort Meade Mine in Hardee County can be conducted in a manner that comports with the applicable statutes and rules such that the proposed Environmental Resource Permit (ERP), Conceptual Reclamation Plan (CRP), variance from minimum standards for dissolved oxygen, and variance from littoral zone percentage provisions for the Project should be issued by Respondent, Department of Environmental Protection (Department).
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: Mosaic is a limited liability company authorized to do business in the State of Florida and is the applicant in these proceedings. It was formed by the merger of IMC Phosphates Company and Cargill, Inc., in 2004. Mosaic has applied for permits to mine, reclaim, and conduct associated activities on property in Hardee County, Florida, known as the South Fort Meade Hardee County tract. These activities are referred to in this Recommended Order as the "Project" or "site." The Department is a state agency with jurisdiction over ERP permitting under Part IV, Chapter 373, Florida Statutes, for phosphate mining activities with jurisdiction over phosphate mining reclamation under Part III, Chapter 378, Florida Statutes, and with jurisdiction over variances associated with phosphate mining under Section 403.201, Florida Statutes. Pursuant to that authority, the Department reviewed the ERP, CRP, DO Variance, and Zone Variance applications for the Project. Lee and Sarasota Counties are political subdivisions of the State of Florida. Both Counties have filed challenges to other mining applications and have been found to have standing in those cases. The site is located within the Greater Charlotte Harbor Basin, approximately sixty percent of which lies within Lee County. In this case, Lee County is concerned about the potential destruction of stream and wetlands in the mine area and the impact of mining and its effects on Charlotte Harbor and the Peace River. Sarasota County is a member of the Peace River Manasota Regional Water Supply Authority, and they jointly hold a water use permit, which authorizes them to withdraw water from the Peace River for potable supply. Sarasota County operates a water treatment plant on the Peace River downstream from the site and is concerned with potential impacts to water quality and wetlands. After three years of data collection and site analysis, on October 13, 2006, Mosaic filed applications with the Department's Bureau of Mine Reclamation for an ERP/Water Qualify Certification for the disturbance of approximately 7,756 acres of uplands, wetlands, and other surface waters within a 10,856– acre area which makes up the site; a CRP for the same parcel; and the associated Zone and DO Variances. Three sets of additional information were requested by the Department, and on January 31, 2008, the applications were deemed to be complete. On June 30, 2008, the Department issued Notices of Intent to issue the permits and grant the variances. The Project is located within the Peace River Basin. Little Charlie Creek, a tributary to the Peace River, enters the site in the northeast part of the tract and flows diagonally across the tract in a general southwest direction. The Project is located to the east of the Peace River, east of the town of Bowling Green, northeast of the City of Wauchula, and just south of the Polk-Hardee County Line in Hardee County, Florida. The Project site is twenty-nine miles from the Sarasota County line and fifty-three miles from the Lee County line. The Peace River eventually empties into Charlotte Harbor near Port Charlotte in Charlotte County. The Project consists of approximately eighty percent of upland land cover types, including large acreages converted to agricultural uses, such as cattle grazing, citrus production, and row crop production. The Project site consists primarily of citrus groves and pasture. Richard W. Cantrell, Deputy Director of Water Resources for the Department, has extensive experience and knowledge concerning agricultural parcels of this size in Central Florida. Based on his familiarity with the site, he indicated that all the streams have been impacted, the impacts to some areas of the site are severe, and the "site contains some of the most polluted streams with respect to sedimentation that I have ever seen." The other Mosaic and Department ecological experts familiar with the site concurred in that assessment, and the substantial data collections and application information support that assessment of the site. Of the 2,590.7 acres of wetlands on the property, approximately 751 acres of wetlands and other surface waters will be impacted. Of that 751, 91 are upland cut ditches or cattle ponds, 108 acres are other surface waters, and 274 acres are herbaceous wetlands. Virtually all of the native upland vegetation on the site has been destroyed due to the agricultural activities that have been undertaken on the site over time. Only remnant patches of native upland remain on the site. These comprise approximately nine percent of the site and are predominantly within the riparian corridors of Little Charlie Creek and the Peace River and are proposed to be preserved. The evidence established that the majority of the wetlands and streams proposed for impact are lower in quality; the higher quality wetlands are typically associated with the riparian stream corridors and are proposed to be preserved. The preserved uplands are primarily pasture but also include one hundred thirty-nine acres of upland forest. Twenty-nine distinct vegetative communities were mapped on the site during approximately two years of evaluation and assessment utilizing the Florida Land Use, Cover and Classification System (FLUCCS). There are numerous natural stream segments that were mapped on the parcel including the primary drainage systems on site, consisting of the Peace River, Little Charlie Creek, Lake Dale Branch, Parker Branch, and Max Branch. Substantial portions of the natural streams and their flood plains will be preserved; sixty-two natural stream segments totaling 58,769 linear feet will be mined. No sovereign submerged lands are proposed to be impacted by the activities. The Peace River to its ordinary high water line is sovereign submerged lands; however, no other streams on site are claimed as sovereign. Therefore, no authorization to utilize or impact sovereign submerged lands is required. The field work assessing the ecological condition of the site's wetlands, streams, and surface waters consisted of detailed quantitative and qualitative assessments using FLUCCS, the Wetland Rapid Assessment Procedure, and the Uniform Mitigation Assessment Methodology (UMAM) codified in Florida Administrative Code Rule Chapter 62-345. The level of assessment expended in evaluating the native upland and wetland habitats on the site was considerable and provided reasonable assurances that the current condition and relative value of the systems were adequately considered in the permitting process. From 2002 to 2004, Mosaic conducted intense ecological evaluations of the site, evaluating historical and aerial photography and other site documentation and conducting extensive examinations in the field, including vegetative, macroinvertebrate, and fish sampling and surveying, surface and ground water quality and quantity monitoring, wildlife observations, surveys and trapping, stream mapping and evaluation, soil analysis, and other efforts, both in areas to be mined and areas to be preserved, and in both uplands and in wetlands. The ecological assessments were primarily conducted prior to the hurricane events of 2004, although additional field work was conducted following the hurricanes. Mosaic and the Department's experts revisited the site in the fall of 2008 and agreed that the various ecological and biological assessments conducted prior to the hurricanes would tend to overstate the quality of the site as compared to its current condition. The hurricanes caused a significant amount of damage to the remaining forested habitats on the site. A formal wetland jurisdictional determination was issued and published without challenge in 2007 and therefore conclusively establishes the boundaries of the wetlands and surface waters on the site for permitting purposes. Seasonal surveys for wildlife on the site were conducted in 2003-2004 using the wildlife survey methodology prescribed and approved by the Florida Fish and Wildlife Conservation Commission. Specialized wildlife surveys and night-time surveys were also conducted. A total of 4,600 man hours of effort were expended to evaluate the presence of fish and wildlife, including threatened and endangered species, on the site. The entire site was surveyed, with over 2,600 miles of wildlife transects, to assess the presence of wildlife, and detailed information was recorded for all wildlife observations, including anecdotal observations by the ecologists performing the wetland assessments. Mosaic also engaged in an extensive effort to identify the natural stream channels proposed for impacts on the site. After discussion with the Department staff, Mosaic distinguished the natural streams in accordance with FLUCCS codes 511, 512, 513, and 514, as required by Florida Administrative Code Rule 62C-16.0051(4). Streams are a subset of the term "other surface waters" for ERP purposes. Although streams are defined in Section 373.019(18), Florida Statutes, as are other watercourses and surface waters, there is no operative use of, or reference to, streams in Part IV, Chapter 373, Florida Statutes, governing ERP permits. Also, there are no specific ERP mitigation requirements applicable to streams. Thus, the only specific regulatory use of the word "stream" occurs in the context of Florida Administrative Code Rule 62C-16.0051, and not the ERP rules. The Department and Mosaic established that the delineation of streams proposed for impact by mining on the site was sufficient and adequate for purposes of the CRP rules. In addition, Mr. Cantrell stated that, for purposes of the acre- for-acre, type-for-type (for wetlands) and linear foot (for streams) reclamation requirements in Florida Administrative Code Rule 62C-16.0051, the Department required Mosaic to delineate a stream as such until the point it enters or after it leaves a wetland area and to delineate the wetland polygon itself as a wetland, not a stream. This is true even if water continues to flow through the wetlands and reform as a stream at the other side. If the stream will not be impacted, then nothing in either the ERP or CRP rules requires its precise delineation, because the CRP rules apply only to reclamation of impacted areas. Thus, Lee County's assertion that "streams" has some special status by virtue of the definition in Section 373.019(18), Florida Statutes, has not been accepted. Mr. Cantrell further testified that the Department utilizes a substantially similar definition to delineate "streams" pursuant to Florida Administrative Code Rule 62C-16.0051(4), but as noted in Findings of Fact 44-46, subsection (5) of the rule requires restoration on a linear foot basis only of natural streams. Lee County contended that over 12,000 feet of natural streams were omitted or misidentified in the application. However, based upon the evidence presented, both historical and current, and applying the applicable regulations and statutes, this argument has been rejected. This contention was based on after-the-fact approximation of stream locations and lengths plotted from memory in a desktop analysis. Further, during his site visit to mark stream locations, Lee County's expert failed to use a handheld GPS device or maps. Therefore, the evidence submitted by Mosaic and the Department as to the location and length of the streams proposed for impact has been credited. Mr. Cantrell testified that even the best of the streams proposed for impact have been subjected to at least sixty years of agricultural disturbance and manipulation. For example, the system 22 series of stream segments will be impacted and replaced by the clay settling areas. While the witness characterized segment 22(o) as the most stable and least impacted of the streams to be mined, that segment is 376 feet long and located at the uppermost reach of the 22 systems. It is an extremely small percentage of the overall 12,000 plus feet of less stable and more severely impacted parts of system 22. Mosaic and the Department analyzed the origins and current condition of the streams to be impacted, most of which are less than three-to-four feet wide and one foot or less deep and flow only intermittently and seasonally. The ecological and hydrologic conditions of the site and its fish and wildlife populations and habitat values were assessed for purposes of the ERP and CRP regulatory criteria. Respondents' characterization of the functional value of the wetlands, streams, and surface waters is supported by a preponderance of the evidence. Lee and Sarasota Counties' assertion that the site wetlands and streams are in "good" condition and can be easily restored is not credited in light of the lack of empirical data to support this contention. The only way to recover the phosphate ore is through mining to remove the overburden layer and expose the phosphate matrix with a dragline. The first step prior to any land disturbance associated with phosphate mining is the installation of a "ditch and berm" system, which is recognized as a best management practice (BMP) by the Department and the United States Environmental Protection Agency. Installation of the ditch and berm system proceeds in phases to protect unmined wetlands and habitats from mining impacts as mining progresses; it is not constructed all at once. The ditch and berm remains in place around an individual mining unit until mining and reclamation have been completed and monitoring indicates the revegetation is sufficiently established such that no violations of water quality standards will occur upon re-connection to adjacent and downstream waters. It is then removed in accordance with the reclamation plan. The system serves a number of purposes described below. Berms are required to be constructed in accordance with specific design criteria. The height of the berm will be designed in accordance with rules specific to such structures to prevent water from overtopping the berm during a 25-year, 24- hour storm event, even if the ditch becomes blocked. Following installation of a ditch and berm system, bulldozers clear the mining area of vegetation. Up to three large electrically powered draglines operate generally in parallel rows to remove the overburden layer (the upper layer of sand and clay soil), which is approximately 23.6 feet thick on average, to expose the phosphate matrix, which is approximately 13-to-15 feet thick on average. The overburden is cast to the side in piles to be later reused in reclamation. The phosphate matrix is a mixture of sand, clay, and phosphate, which must be separated after mining. At the beneficiation plant, washing, screening, and flotation processes are used to separate the phosphate rock from the sand and clay. After washing and screening, the sand is pumped back to the mine cuts for use in reclamation, and the clay is pumped to clay settling areas (CSAs) in slurry form to decant. Both the transport of sand back to the mine areas for use in reclamation and the transport of clays to CSAs are considered "mining operations," not "reclamation." See Peace River/Manasota Regional Water Supply Authority, et al. v. IMC Phosphates Company, et al., DOAH Case No. 03-0791 (DOAH June 16, 2006; DEP July 31, 2006); Fla. Admin. Code R. 62C-16.0021(10) and (15). Thus, contrary to Lee County's allegation, the transportation of clays and sand is not a valid consideration in the financial responsibility required for mitigation. Through testimony and its materials balance tables, which are part of the application, Mosaic demonstrated that it has sufficient sand tailings and other waste materials to meet all of its reclamation requirements mine-wide, including both the Polk side and the Project site. However, while there is sufficient sand available to create the proposed reclamation topography and contours, the tables and testimony demonstrated a need, on a mine-wide basis, for lakes, as voids will remain otherwise. There will be only a very small pile of available sand remaining after all reclamation obligations on both the Polk side and the Project are met, an insufficient amount to eliminate the need for deep lakes as proposed. Mr. Myers, Mosaic's Vice-President of Mining, testified as to the three basic ways the waste materials generated by the beneficiation plant are disposed of on-site to facilitate reclamation. Sand tailings will be utilized in areas to be reclaimed as native habitats, wetlands, and streams. Clays will be disposed of in CSAs. However, based on the materials balance and logistical issues, the "land and lakes" reclamation method, which utilizes only the available overburden material remaining on-site after mining, will be used for the lake reclamation. This method allows sand tailings preferential use in reclamation of native habitats and use of shaped and contoured overburden in areas not proposed for wetland mitigation. Such is the case for the proposed reclaimed lakes. A CSA is an above-grade impoundment to hold clay slurry pumped from the beneficiation plant. This clay slurry is pumped into one side of a CSA in the form of muddy water. The clay settles to the bottom, and the clear water remains at the top. The clear water is drawn out from the opposite side of the impoundment, where it is recycled back to the beneficiation plant and mine for reuse. Over time, the clay consolidates and solidifies to form a solid soil, the surface area is drained, and the impoundment reclaimed. Three CSAs will be constructed on the northern portion of the site to hold the clay that cannot be stored in already- permitted CSAs in Polk County. The use of stage filling has allowed Mosaic to have additional usable space in its CSAs, minimizing the footprint of new CSAs in Hardee County. In addition, approximately fifty percent of the clay waste from the site will be disposed of at the Polk site to further minimize the clay disposal footprint and eliminate and reduce impacts. To evaluate the number of CSAs required, Mosaic asked Ardaman & Associates, a consulting firm, to examine different clay generation scenarios when predicting the CSAs required by mining and beneficiation. The life of mine waste disposal plan, most recently updated in September 2008, indicated that, in all but one scenario (the seventy percent clay containment scenario), all three CSAs would be required. However, Mosaic witness Garlanger established that all three CSAs in Hardee County would be necessary based on the best available information as to the amount of clays reasonably likely to be generated by mining; the seventy percent scenario is not likely. No evidence was presented to rebut that testimony. A diversion system was also voluntarily included for the CSAs by Mosaic. In the highly unlikely event of a dam failure, this system will re- direct any escaped water and/or clay materials to adjacent open mining cuts where they can be safely stored. The diversion system will be reclaimed when the CSAs are reclaimed. The evidence established that the ditch and berm system, CSAs, and diversionary structure are capable of being constructed and functioning as designed. The reclamation plan includes avoidance (no mining) of approximately 3,100 acres, or twenty-nine percent, of the site, including more than seventy-one percent of the total wetlands on-site. Of this, 2,100 acres will be placed in a perpetual conservation easement. There is a wide gamut of habitat types on the site that will be preserved and not mined, including both streams and wetlands. The most complex and least impacted habitats on the site have generally been included in the preserve area. The project includes disturbance of 751.3 acres of wetlands and other surface waters, which include non-wetland floodplains, cattle ponds, and upland-cut ditches, and mining of 58,769 linear feet of natural and modified natural streams. An additional 1,661 linear feet of stream channel will be disturbed but not mined for six temporary crossings for dragline/utility/ pipeline corridors. To mitigate for impacts to streams and wetlands under the ERP rules, Mosaic will create 641 acres of wetlands and other surface waters and 67,397 feet of stream channel and will also provide a conservation easement to the Department on 2,100 acres of unmined wetland and upland habitat associated with the major riparian systems. The conservation easement area will be permanently preserved and protected from secondary impacts. The UMAM rule is applied to ERP applications to measure the functional loss to wetlands and other surface waters proposed for impact and the functional gain associated with the proposed mitigation. Functional loss is compared to functional gain to determine whether sufficient mitigation has been offered that offsets the proposed impacts. The proposed preservation and wetland and surface water creation, along with certain upland enhancements, will provide more than enough UMAM mitigation "lift" (with 48 excess credits) to satisfy the ERP mitigation obligations and offset those wetland impacts that cannot be eliminated or reduced. The UMAM scores for the reclaimed areas are conservative, that is, using higher risk factors by assuming muck or other appropriate topsoil will not be available, and take into account the risk or difficulty associated with creation of a particular system, based on actual UMAM scores for existing reclaimed systems. Time lag, which is normally a factor considered in the UMAM mitigation equation, expressly does not apply to phosphate mines pursuant to Florida Administrative Code Rule 62-345.600. Thus, Lee County's attempt to argue that some greater amount of mitigation of streams is required to account for the time required to construct and reinstate flow and vegetation to the streams is not credited. Mr. Cantrell confirmed that "fat" was built into the foot-for-foot stream reclamation because 7,000 more feet of stream will be reclaimed beyond the amount impacted; some "stream" segments, specifically, stream segment 18(i), probably should not have been required to be reclaimed at all. Under Florida Administrative Code Rule 62C-16.0051, the 511 and 512 classified "natural" streams are the only streams warranting reclamation as streams under the Department's reclamation rules. Only natural streams currently existing immediately prior to mining are required to be reclaimed on a linear foot basis. Reclamation meeting the requirements of Florida Administrative Code Rule 62C-16.0051 is adequate mitigation under the ERP program in Part IV, Chapter 373, Florida Statutes, if it maintains or improves the functions of the biological systems currently existing onsite. See § 373.414(6)(b), Fla. Stat. Mr. Cantrell established that, under subsection (5) of the rule, the Department has discretion to request the applicant to restore wetlands and streams to a different type of system than existing on the site if "mitigating factors indicate that restoration of previously modified streams as a different type of lotic system would produce better results for the biological system and water quality." The evidence established that the rules do not require reclamation of artificially created water courses or remnant stream segments that lack the functions or landscape position one normally associates with natural streams. Instead, a better lotic system will be created that will improve existing functions and water quality, consistent with Section 373.414(6)(b), Florida Statutes, and the CRP rules. In addition to the wetlands and surface waters created to meet mitigation requirements, the Project will also reclaim uplands and will include what is known as "land and lakes" reclamation in the southeastern portion of the site. Utilizing shaped and contoured overburden, Mosaic will create four lakes totaling 180 acres and 43 acres of associated herbaceous littoral zone as CRP reclamation. This is based predominantly on the mine-wide materials balance showing a need for reclaimed lakes to account for mine voids on the Hardee site, the Polk site, or both. As a result, Mosaic has proposed 180 acres of reclaimed lakes in Hardee County in lieu of 500 acres of reclaimed lakes in Polk County, as this results in eliminating overall reclaimed lake acreage while satisfying Hardee County's request for deep lakes. In addition, timing and property logistics in that portion of the site make transport of tailings to the area from the beneficiation plant problematic. As the site is an extension of the existing South Fort Meade Mine in Polk County, Mosaic possesses permits that are not at issue in this proceeding, but are relevant to the project. Discharges from a mine recirculation system require a National Pollutant Discharge Elimination System (NPDES) permit. Discharges may only occur at specified discharge points upon verification that the discharge meets stringent water quality conditions in the permit, which are set to ensure that water quality standards in the receiving water are met at the point of discharge (without mixing) and that downstream water quality will be protected. A separate NPDES permit is not needed for the Project, because Mosaic already has a valid NPDES permit for the Polk County beneficiation facility, which will serve the site. Mosaic currently has a Water Use Industrial Permit (WUP) issued by the Southwest Florida Water Management District (SWFWMD). The WUP includes both the Polk County and Hardee County portions of the South Fort Meade mine and governs both dewatering of the mine area prior to mining and operation of water supply wells located in Polk County that will be used to provide supplemental water to the recirculation system. Mosaic's evidence demonstrated that the Project will not cause adverse water quantity impacts, consistent with Florida Administrative Code Rules 40D-4.301(1)(a), 40D-4.302(1), and 62C-16.0051 and related BOR provisions. Mosaic presented evidence concerning the potential long term impacts of the proposed project on surface and ground water quantities and flows both during active mining and reclamation activities, and after reclamation is complete. Extensive analyses were presented by Mosaic's expert witnesses and evaluated by the Department. Such analyses showed no adverse impacts to water quantity on the site, adjacent properties, or in the Peace River or Charlotte Harbor. The site was studied extensively by Mosaic, and detailed hydrology characteristics were assessed as part of the preparation of the ERP and CRP applications. Various surface water stations, topographic maps, and ground water sampling points were utilized and geologic information was developed by evaluation of various borings across the site. Mosaic witness Burleson, a professional engineer, further considered soil types, land use and vegetative cover, and existing site hydrologic factors such as culverts, bridges, and other such changes to the site by the prior owners. Mosaic's modeling expert, Dr. Mark Ross, considered these factors on a regional scale in his integrated modeling for the 360 square mile regional basin. In the region of Florida that encompasses the site, there are three major hydrogeologic layers that are significant to a hydrologic analysis: (1) the surficial aquifer system, comprised of the overburden (the top layer of soil) and the phosphate matrix; (2) the confining layer and intermediate aquifer system; and (3) the Floridan, or deep, aquifer system. The confining layer separates the surficial from the intermediate and Floridan aquifer systems. By understanding the surface and ground water systems and physical characteristics of the site, the Mosaic experts were able to apply appropriately-calibrated hydrologic models to assess (1) pre-mining and post-reclamation floodplains and storm event runoff comparisons; (2) base flows to reclaimed streams; (3) potential hydrologic impacts of stream crossings; (4) effectiveness of the perimeter "recharge ditches"; (5) hydroperiod of reclaimed wetlands; and (6) potential impacts of the project on flows in the Peace River. These models were used to predict with reasonable certainty the effect of the Project on water quantity on-site, off-site, and on a regional scale. As set forth below, the evidence established that water quantity and flows in adjacent unmined wetlands and streams will be maintained during mining activities as a result of the installation of the ditch and berm system as proposed. Before the ditch and berm system is constructed, Mosaic will refine the design of the system based on actual geological data and gradient information to assure the ditch and berm will function as proposed and modeled. The ditch and berm system is inspected regularly. Recharge wells within the recharge ditch are not required unless localized conditions dictate use of the wells. Contrary to Lee County's assertions, this site is distinguishable from the Ona mine site (which is also in Hardee County), and the depth of mining is far more shallow with relatively few areas mined to a depth of fifty feet, which was common at the Ona mine site. Additionally, Mosaic must install perimeter monitor wells at regular intervals adjacent to and downgradient of the ditch and berm system prior to mining. These wells are monitored prior to mining to establish a baseline and regularly throughout mining in accordance with the requirements of Mosaic's WUP and the ERP to assure that the water table in adjacent areas is not adversely affected by mining activities. The water in the ditch portion of the perimeter system must be maintained at levels sufficient to maintain groundwater levels in undisturbed areas. Maintaining water in the ditch at appropriate levels precludes drainage of groundwater from adjacent sites into open mine cuts. Mosaic witness Pekas, a professional engineer, conducted modeling to determine whether adequate base flow will be provided to protected streams and reclaimed streams during mining. Provided the ditch and berm system is operated properly, proper base flows will be maintained. All of the hydrologic experts agreed that proper operation of a ditch and berm system assures that adequate groundwater outflow, or base flow, is available to support adjacent streams and wetlands during mining. During active mining operations, the ditch and berm system collects rainfall on areas within the system. The ditch and berm system temporarily detains this rainfall, preventing the direct discharge of untreated, turbid runoff to adjacent wetlands and waters, but does not permanently retain the rainfall. The evidence demonstrated that most of the rainfall that falls on areas disturbed by mining and mining-related activities is detained by the perimeter ditches, routed to the mine recirculation system, and is subsequently discharged, when it meets water quality standards, through NPDES-permitted outfalls to waters of the state. This will serve to attenuate surface water flows, allowing surface water retained during storm events to be discharged during extreme low flow events, providing for less "flashiness" in the streams. Lee County's assertion that runoff will be permanently retained is not credited; the evidence clearly established that controlled releases of treated stormwater occur through the permitted NPDES outfalls. The evidence shows that Mosaic will re-connect mined and reclaimed areas at the mine in Polk County at a rate exceeding the rate at which the Project's mine areas will be diverted by the ditch and berm system. Thus, any potential downstream impact of the ditch and berm construction on the site will be offset and buffered beyond the safeguards incorporated in the project design. The evidence demonstrated that the proposed ditch and berm recharge and monitoring system described here is capable, based upon generally accepted engineering principles, of being effectively performed and functioning as proposed and will preclude any adverse impact on the surficial aquifer beneath the preserved areas and adjacent properties and on adjacent surface waters and wetlands. The Department will apply the relevant BOR criteria concerning water quantity impacts on a pre-mining/post- reclamation basis consistent with the application of these same criteria to other non-mining ERP applicants. In this case, the Department reviewed Mosaic's submittals, assessed the impacts, and determined no adverse impacts to water quantity would occur during mining. Mosaic submitted a detailed analysis of potential surface water quantity impacts that may occur after reclamation is complete. This analysis included evaluation of post- reclamation floodplains and storm event run-off compared to pre- mining patterns, and characteristics of reclaimed natural systems. Floodplains, run-off, and reclaimed natural systems were assessed in the manner described below. Mosaic modeled potential impacts of the project on surface water flow using existing site conditions to calibrate and verify the model. Mr. Pekas developed a water balance hydroperiod spreadsheet model calibrated using existing, on-site wetlands to evaluate the expected hydroperiods of various types of wetland systems proposed to be reclaimed at the site. The evidence shows that the Pekas spreadsheet model was an appropriate model for predicting hydroperiods for reclaimed wetlands. Appropriate ranges for the expected hydroperiods and other hydrological characteristics needed for the different types of wetland systems to be created in the post-reclamation landscape were established. In order to reflect natural conditions, the Department specifically requested that the targets for expected hydroperiods of reclaimed wetlands vary across the established range of the hydroperiod for the type of wetland at issue, and these target hydroperiods are summarized in Table E-6 to the draft ERP. Mosaic demonstrated and verified that the Pekas spreadsheet reasonably predicts the hydroperiods to be expected from a given design for a proposed reclaimed wetland. After mining, site-specific conditions such as hydraulic conductivity will be reassessed and final design parameters will be developed accordingly. Lee County's witness Jonas demonstrated the importance of hydraulic conductivity when she adjusted the value for wetland 2-1C (one of Mr. Pekas' verification wetlands) from 0.5 to 30, based on a value not from the Project site, but from an off-site reclamation project. Not surprisingly, she concluded that a conductivity of 30 would not provide hydrology to support the wetland functionality. Her analysis demonstrates the importance of requiring reclamation of subsurface hydrology not based on an off-property conductivity value, but on site- specific hydraulic conductivity information. In his own analysis, Mr. Pekas relied on actual soil borings on-site, and at wetland 2-1C the average hydraulic conductivity was 0.5, which when modeled, provided appropriate hydrology for that wetland. Furthermore, ERP Specific Condition 11 requires Mosaic to reclaim wetlands with functionally equivalent hydraulic conditions based on verified field information as to site- specific hydrologic properties existing after mining, and the wetlands will not be released until functioning as required. The preponderance of the evidence demonstrates that reclaimed wetland can be designed and built in a manner that will achieve the required hydroperiods for each wetland type proposed to be disturbed and reclaimed at the site, including the bay swamps. In addition, each of the wetlands must be individually evaluated immediately prior to construction to provide additional verification of site-specific hydrologic conditions to assess, re-model, and verify the final wetland designs prior to construction. Condition 11c of the draft ERP also requires Mosaic to mimic the existing hydraulic conductivity and gradients near streams to ensure that base flows will be present post-reclamation. All of this will ensure that reclaimed streams will be hydrologically supported, and wetlands with the target hydroperiods requested by the Department will be constructed. The contrary testimony of Lee County's hydrologists does not credibly rebut this evidence. In performing their calculations, they utilized unrealistic numbers. The claim of Lee and Sarasota Counties' experts that they lacked sufficient information to form an opinion as to the accuracy of the modeling is not sufficient to overcome the evidence submitted by Mosaic to meet this criterion. See, e.g., National Audubon Society, et al. v. South Florida Water Management District, et al., DOAH Case No. 06-4157, 2007 Fla. ENV LEXIS 164 at *21 (DOAH July 24, 2007, SFWMD Sept. 13, 2007). Mr. Burleson determined that the original drainage patterns of the site would be restored post-reclamation. Mosaic provided reasonable assurances that the proposed reclamation is capable of being constructed and functioning as proposed. The preponderance of the evidence demonstrated that the proposed mining and reclamation of the site will not cause adverse water quantity impacts post-reclamation, as addressed by Florida Administrative Code Rules 40D-4.301(1)(a) and (c), associated BOR provisions, and Florida Administrative Code Rule 62C-16.0051(8)(b). Mosaic presented evidence demonstrating reasonable assurances that the proposed project will not cause adverse flooding to on-site or off-site property, consistent with Florida Administrative Code Rules 40D-4.301(1)(b) and 62C- 16.0051(8) and associated BOR provisions. During mining, there is no reasonable likelihood that active mining and reclamation activities at the site will result in any increased flooding conditions upstream of, on, or downstream of the site. The ditch and berm system reduces direct surface water runoff from areas disturbed by mining operations during peak rainfall events. Subsequent NPDES discharges of water typically lag slightly behind the rainfall events. This lag during mining decreases peak discharges in adjacent streams while augmenting lower flows slightly, thereby attenuating peak flows. Mr. Burleson evaluated the pre-mining and post- reclamation peak flow analyses for the project site to determine whether the post-reclamation topography, soils, and vegetative cover would result in flooding, using the Interconnected Pond Routing program or "ICPR" model, an accepted model for stormwater modeling, as required by the BOR. Mosaic's evidence established that the Project will not adversely impact existing surface water storage and conveyance capabilities, consistent with Florida Administrative Code Rule 40D-4.301(1)(c) and related BOR provisions. Additionally, Mosaic proposes to preserve from mining the 100-year flood plain of Little Charlie Creek and the Peace River and most of the higher quality small tributaries on the site. The smaller streams to be mined will be restored in a way that maintains or improves pre-mining conditions and will not cause harmful or erosional flows or shoaling. The federal Hydrologic Engineering Center Reservoir Analysis System and the National Flood Frequency Program were used by Mr. Burleson to verify the floodplains are accurately mapped and also that there will not be an increase in flood risk in the post-reclamation condition. The preponderance of the evidence demonstrates reasonable assurances that the proposed mining and reclamation activities at the site will not result in adverse flooding impacts, consistent with Florida Administrative Code Rules 40D- 4.301, 40D-4.302(1)(a)3., and 62C-16.0051(8), and the BOR, including water quality standards in Chapter 4. The evidence presented by Dr. Ross established that the proposed mining and reclamation activities on the site will not adversely impact flows in the Peace River. No adverse effects of the Project will be observable at the Zolfo Springs United States Geological Survey (USGS) gauging station. A minimum flow for the Upper Peace River has been established pursuant to Section 372.042, Florida Statutes. A minimum low flow of 45 cfs from April to June (Upper Peace MFL) was established at Zolfo Springs by the SWFWMD; since the MFL has not been met since adoption, a recovery plan has been instituted. See Fla. Admin. Code R. 40D-8.041(7). Lee County asserts that the Project will violate the Upper Peace MFL and the recovery plan, arguing that a reduction in average annual flow, regardless of how infinitesimal, constitutes a violation of Florida Administrative Code Rule 40D-4.301(1)(g). This argument was refuted by Dr. Ross, who established that the project would increase flows during low flow periods. The Department concurred with, and the evidence supports, Dr. Ross' assessment that the project would not exacerbate the Upper Peace MFL or interfere with the recovery plan. Dr. Ross created a regional-scale integrated model utilizing public domain computer programs in an iterative fashion that coupled surface water and ground water to comprehensively evaluate the effects of the project on the flows in the Peace River post-reclamation. The regional approach included a full range of upstream and downstream influences on the site, not simply mining, that could affect the hydrologic evaluation of any impacts from the Project on the Peace River. The model domain included 360 square miles. To account for site-specific impacts in the model, Dr. Ross increased the refinement and discretization over the site. Thus, the model was capable of considering impacts from the site in its entirety within the region as measured at the Zolfo Springs USGS gauging station. Zolfo Springs is the first USGS gauging station directly downstream of the site and is the point of compliance for minimum flows adopted for the Upper Peace River system. The regional model predicted virtually no change in flows at the Zolfo Springs gauging station after the project as proposed is reclaimed, and that both the high and low flows observed at Zolfo Springs would be maintained post-reclamation. Dr. Ross concluded that there would not be any reduction of low flows at Zolfo Springs due to the Project. He further concluded that the Project will not impact or affect the recovery of minimum flows. Dr. Ross calculated the differences between the model- predicted high flows and low flows from the observed flows and found that the modeled high flows were slightly attenuated and the modeled low flows were slightly augmented at Zolfo Springs. The attenuation is consistent with the increased storage for water in the post-reclamation system. Consistent with Florida Administrative Code Rule Chapter 40D-8, the Department considered potential impacts to low flows as the determining factor in determining whether a minimum low flow requirement like the one set for the Upper Peace MFL will be met. It concluded that the project is consistent with the Upper Peace MFL and its recovery strategy. The recovery strategy discusses projects which, like the one proposed, would yield a long-term increase in low flow conditions by storing some peak flow volumes and releasing them in low flow conditions. The Department's interpretation of its ERP rules and BOR provisions regarding MFLs, as well as other governing rules, is reasonable and has been accepted. Lee County's experts based their MFL testimony on an inappropriate use of annual average flow information and improper interpretation of Mosaic's data. Further, they inappropriately attempted to reach conclusions by estimates and extrapolation, and the overall weight of the evidence supports Mosaic's evidence that mining and reclamation will not cause a violation of the Upper Peace MFL. Accordingly, Mosaic has provided reasonable assurances that the requirements of Florida Administrative Code Rule 40D- 4.301(1)(g) and associated BOR provisions have been satisfied. The ditch and berm system and other proposed BMPs, such as silt fences, at the site will provide water quality protection to adjacent undisturbed surface waters and wetlands during mining and reclamation activities. The actual construction of the ditch and berm and stream crossings will be conducted using BMPs to avoid adverse construction-related impacts. During mining, the ditch and berm system will preclude uncontrolled releases of turbid water to adjacent un-mined areas. The evidence established that the proposed Project will not cause a violation of water quality standards, either in the short-term or long-term. Dr. Durbin, an ecologist, evaluated water quality data from the existing South Fort Meade mine in Polk County and compared data from the 10-year period before the mine opened against the 10-year period after the mining began, finding water quality to be equivalent or better after mining began in Polk County. This allowed him to conclude that water quality on the site will not be adversely affected and, in light of existing agricultural activities, will be maintained or improved both during mining and post-reclamation; water quality in reclaimed systems will be sufficient to maintain designated uses of the systems. Dr. Durbin opined that the ERP contains detailed water quality monitoring requirements that, based on his long experience, are sufficient to establish a baseline, assess compliance, and detect significant trends. Sarasota County's witness has no experience in ERP or CRP permitting and his suggestion for far more frequent monitoring is not credited. No additional monitoring conditions or criteria are warranted. For the above reasons, Mosaic has demonstrated by a preponderance of the evidence that reasonable assurances that water quality standards will not be violated either during mining, while reclamation is underway, or post-reclamation. The evidence further established that accepted BMPs will be used during mining to protect the water quality of adjacent and downstream waters, and that these measures can be expected to be effective to prevent any violations of water quality standards. Dr. Durbin provided unrebutted evidence that water quality standards in waters of the state and downstream of the project will be met post-reclamation and existing water quality in the unmined and reclaimed wetlands and waters will be maintained or improved post-reclamation. Thus, no adverse water quality impacts to the Peace River or Charlotte Harbor will occur during mining or post-reclamation. Therefore, reasonable assurances have been given that the requirements of Sections 373.414(1) and 373.414(6)(b), Florida Statutes, Florida Administrative Code Rules 40D- 4.301(1)(e) and 62C-16.0051(7), and associated BOR provisions are satisfied as to water quality. There is a wide range of habitat types on the site that will be preserved and not mined, including both streams and wetlands. The most complex and least impacted habitats on the site have generally been included in the no-mine and preserved areas. Mosaic does not propose to mine all or even most of the jurisdictional wetland and surface waters. In fact, seventy-one percent will be avoided. When developing a mining plan, Mosaic considers how to eliminate or reduce proposed impacts to waters and wetlands. The evidence established that Mosaic and the Department engaged in a protracted elimination and reduction discussion throughout the review process associated with the site's ERP/CRP applications. BOR Section 3.2.1 emphasizes the effort required to assess project design modifications that may be warranted to eliminate and reduce impacts to ecological resources found on the site. This effort was undertaken with the Department as early as 2004 during the DRI pre-application conferences. The major project design modifications involved the preservation of the named stream channels, the 100-year floodplain of the Peace River and Little Charlie Creek, and the 25-year floodplain of the other named tributaries. These areas will be permanently preserved by a 2,100-acre conservation easement; 1,000 additional acres will remain unmined. Also, the project design was modified and developed to maximize resource protection by integrating the Polk and Hardee mining operations. The testimony established how the activities at the Hardee operation will be greatly facilitated by relying upon and using the beneficiation plant and infrastructure already in place and permitted at the Polk site. Almost fifty percent of the clays generated at the Hardee mine will be disposed of in the existing Polk County CSAs, thereby eliminating one CSA altogether and substantially reducing the footprint needed for CSAs on the site. Likewise, the Department established that mine-wide, approximately 320 acres of lakes were eliminated. The Department discussed further modifications to the mine plan with Mosaic throughout the lengthy review process, doing a wetland and stream-by-stream assessment of the functions provided and the reclamation capability to maintain or improve the functions of the biological systems present prior to mining. The balance was struck between temporary resource extraction, recognized by Florida law as inextricably related to wetland disturbance, and the significantly altered natural resource features found on the site. In light of the 3,100 acres already eliminated and reduced from impact consideration, the Department in its discretion did not find it necessary to pursue economic data or analysis on the "practicability" of any further reductions. The highly disturbed nature of the wetlands and other surface waters being impacted gave the Department a high degree of confidence that mitigation and reclamation of these areas would in fact maintain and improve the functions provided prior to mining. Specifically, Mosaic has eliminated impacts to stream systems to the greatest extent practicable. Based on a Department field evaluation in late August 2008, Mosaic was directed to revise the no-mine line in the 3A stream system to more accurately reflect the floodplain of the stream draining the two bay heads north of the stream. In October 2008, Mosaic made the revision to add approximately 2.7 acres to the no-mine area. The majority of the streams proposed for impact by mining cannot be avoided, given the location of the three CSAs that are required for clay disposal associated with mining. The evidence established that there is no other location for the three CSAs that will have a lesser ecological or public health, safety, or welfare impact than the proposed location, given the site topography. As noted above, the volume of clays to be disposed of on the site has been reduced by half, and three CSAs are still needed. The location was chosen to move the CSAs as far from the Peace River and Little Charlie Creek as possible in light of the site topography, and this location avoids all impacts to named stream systems. As set forth above, Mosaic has demonstrated by a preponderance of the evidence that the best and most complex habitats on the site have been preserved at the expense of a loss of a significant amount of phosphate reserves in the preserved areas. All significant stream systems have been avoided to the extent practicable in light of the necessary CSAs. Both Mosaic and Department witnesses testified that the proposed no-mine area was the result of design modifications to eliminate or reduce impacts to wetlands to the greatest extent practicable. This satisfies the requirements of applicable rules and Section 373.414(1)(b), Florida Statutes. Florida Administrative Code Rule 62C-16.0051(4) and (5) provides specific guidance on the classification and reclamation of natural streams. The Department provided direction to the applicant through the review process in the identification of natural streams and the design guidance manual to ensure foot-for-foot replacement and functional replacement or improvement. The permit reflects the 58,769 feet of the streams identified as numbers 511 and 512 to be impacted, and Mosaic has proposed approximately 65,700 feet of restored stream. Lee County's assertion that 2.3 miles of additional unmapped streams should be added to the reclamation obligation has been rejected. It is clear many of the areas alleged to be unmapped streams were depressions, low lying areas, or standing water within wetland areas more accurately identified as marshes or swamps. The fact that a discernible natural stream channel exists upstream and downstream of a wetland did not change the accuracy of acknowledging the different structure, form, and functional attributes that result in the wetland being distinct from the stream. Also, many of the alleged unmapped streams were located in the no-mine areas, and thus the alleged lack of delineation is of no consequence. Lee County's witness Erwin admittedly took no measurements of the alleged streams. Also, he provided no evidence that he or his staff delineated the alleged streams on- site. Rather, he reconstructed where they were located as a desktop exercise from memory, without any aids or tools used in the field. He then superimposed an alignment and put it on a GIS layer over an aerial photograph, resulting in an electronically generated approximation. The witness offered no physical evidence of depth, width, length, or bankfull width of stream function, but merely an assertion as to areas that appeared to have a bed or channel, even if dry, and the attributes or functions of a stream were immaterial or irrelevant to his analysis. No other independent witness attested to the alleged stream discrepancy, whereas both Mosaic's expert, Mr. Kiefer, a recognized fluvial geomorphologist, and the state's expert on jurisdictional delineations, Mr. Cantrell, who was the author of the applicable rules, expressly disagreed with these allegations. The testimony of Mosaic and the Department is found to be the most persuasive on this issue. Mosaic and the Department established that the proposed stream restoration plan is more than adequate to meet the requirements of Florida Administrative Code Rule 62C- 16.0051(5) and will ensure the reclaimed streams maintain or improve the biological function of the streams to be impacted. Dr. Janicki, a scientist who testified on behalf of Lee County, was critical of the stream restoration plan. However, he acknowledged he was not an expert in stream restoration and that part of his job was to "look at how we might improve . . . on some of those shortcomings in the [stream] restoration plan." Dr. Janicki incorrectly assumed the design curve numbers were based on regional curves from north and northwest Florida rather than site-specific measurements. He stated that the guidance document was generalized and lacking specificity, but Table 4 contained in the guidance document contains nineteen stream morphological parameters for all forty- nine of the stream segments to be reclaimed. Dr. Janicki has never designed nor implemented a stream restoration project, and he acknowledged that he is not a fluvial geomorphologist. Conversely, Mosaic witnesses Boote and Kiefer, both accepted in this area, stated unequivocally that the plan was sufficiently detailed and that a qualified restoration and construction contractor could implement the plan in the field with appropriate field adjustments and construction level refinements based on site conditions. The allegation that the plan does not comport with ERP and CRP requirements because it lacks sufficient specificity is not credited. First, the ERP rules do not contain stream-specific restoration criteria. Second, the CRP stream rules adopted in May 2006 have never been applied in a prior case, and in this case the Department determined in its discretion that the plan as proposed meets the stream reclamation requirements of the CRP rules. Similarly, the stream restoration plan was criticized because measurements from every single segment or reach of stream were not used to develop the post-mining stream. However, Mr. Boote and Mr. Kiefer confirmed that only the most stable and least impacted of the stream segments on site were used as templates for stream reclamation. None of the recognized stream experts suggested that erosive, unstable "F" and "G" classified stream segments should be replaced in that unstable form or used as the template for reclamation. By a preponderance of the evidence, Mosaic has established that the reclamation plan for the site will more than offset any adverse impacts to wetlands resulting from the mining activities, because it will maintain or improve water quality and the functions of biological systems present on the site today, as required by Sections 373.414(1) and 373.414(6)(b), Florida Statutes. The evidence established that applicable Class III water quality standards will not be violated and that the water in wetlands and surface waters on-site post-reclamation will maintain or improve and be sufficient to support fish and wildlife in accordance with Florida Administrative Code Rules 62C-16.0051 and 40D-4.301(1)(e) and relevant BOR provisions. The proposed mitigation will also restore a more appropriate or more natural hydrologic regime that will allow for a better propagation of fish and invertebrates in reclaimed systems. The reclamation plan will maintain the function of biological systems of wetlands to be mined on-site by replacing the wetlands to be impacted with wetlands of the same type and similar topography and hydrology in the post-reclamation landscape. In many cases, it will enhance the function of those systems by improving the landscape position of the wetlands, relocating them closer to the preserved Little Charlie Creek corridor, and moving cattle ponds and pasture away from the corridor. Likewise, the existing streams proposed for mining will be replaced with stream reaches modeled on streams that are comparable or better than the existing, unstable, and eroded streams. The Department has determined that Mosaic can reclaim the streams and wetlands to at least as good as or better than existing condition on the site. Mosaic has provided reasonable assurances that the proposed reclamation plan will maintain or improve the existing function of biological systems. Mosaic's reclamation plan for the site therefore satisfies the mitigation requirements of Part IV, Chapter 373, Florida Statutes, and the implementing regulations and the BOR, as applied to phosphate mining activities through Section 373.414(6)(b), Florida Statutes. Through the testimony of witnesses Durbin, Kiefer, and Simpson, as well as documentary evidence, Mosaic has established that the proposed project, as reclaimed, will cause no adverse impacts on the value of functions provided to fish and wildlife and will not adversely affect the conservation of fish and wildlife, including endangered or threatened species and their habitats, as required by Section 373.414(1)(a)2., Florida Statutes, Florida Administrative Code Rules 40D- 4.301(1)(d) and 40D-4.301(1)(a)2., as well as the associated BOR Section 3.2.2 provisions. Likewise, the CRP criteria pertaining to fish and wildlife will be met. See Fla. Admin. Code R. 62C- 16.0051(11). Mosaic's reclamation and site habitat management plan will maintain or improve the functions of the biological systems on the site with respect to fish and wildlife, including threatened and endangered species and their habitat. Mosaic witness Simpson provided unrebutted testimony that the proposed mining and reclamation will not have adverse impacts on wildlife populations or conservation of wildlife including threatened or endangered species and their habitats and that proposed reclamation would maintain or improve wildlife habitat values. The evidence shows that the mining and reclamation will not have adverse impacts on fish populations or conservation of fish. The fish habitat on the site will either be preserved or, if mined, will be replaced with in many cases superior habitat. There will be a net increase in suitable fish habitat post-reclamation. The wetland and stream fish habitats on the site will provide appropriate habitat for the fish and wildlife that can be expected to occur in the region. The sampling described above can be expected to reflect the majority, if not all, of the fish species reasonably expected to be present on the site. Mosaic witness Durbin further confirmed that the fish species collected on-site are consistent with similar sites in the immediate vicinity with similar agricultural usage with which he is familiar. In August and September 2008, verification of that fish sampling effort was performed by Dr. Durbin, an outside consulting firm (ECT), and the Department. They confirmed that the fish collection efforts reasonably reflect the native and exotic fish species that are likely to occupy the site. Through the testimony of Dr. Fraser, Lee County compared two streams on the Ona mine site with three stream segments on the Project site. However, the sole basis of the witness' comparison was recollections of field work he participated in over four years ago and photos taken at that time compared with photos taken at the new site. The witness conceded that he did not consider or compare sedimentation levels in the two stream systems. On the other hand, Department witness Cantrell established that the streams compared by Dr. Fraser were dissimilar. In fact, one of the streams Dr. Fraser held up as an apparent example of prime aquatic habitat was Stream 20C, which Mr. Cantrell demonstrated is nearly completely choked by sand and sedimentation. All of the streams proposed for impact are first or second order streams; most of them are intermittent, carrying flow only seasonally and therefore are only periodically occupied by fish and macroinvertebrate communities. The fish that do tend to utilize such systems in the wet season tend to be very small, usually less than one inch in size. The proposed preservation will preserve the best aquatic habitat on the property; the streams to be preserved are the main pathways and aquatic habitats utilized by fish. Mosaic witnesses Durbin, Keenan, and Kiefer all testified that the reclamation plan will restore better aquatic habitat for fish and other aquatic organisms than exists presently on site on a greater than acre- for-acre, type-for-type and linear foot basis. They further testified that the proposed reclamation will provide better aquatic habitat for fish and wildlife than currently provided, consistent with both ERP and CRP requirements. In addition, Dr. Fraser's suggestion that the fish sampling done on the site was insufficient and that the ERP should be modified to require fish collection as a success criterion for the reclaimed streams is not credited. This is because such a proposal is not a requirement of the ERP or CRP rules. Dr. Fraser's comparisons of reclaimed to unmined streams were inconsistent with his own anecdotal fish observations, and he testified as to the difficulty of ensuring adequate fish sampling or knowing where fish will be on any given day, given their mobility. Also, he provided no comparisons as to how the reclaimed streams sampled are constructed compared to the plan for the site and admitted he did not know how or when they were built. Dr. Fraser's discussion of fish in basins where mining has occurred was discredited by his own data showing that no reduction in the number of native fish species has occurred over time in those basins. Mosaic's reclamation plan, which consolidates the native upland and wetland habitats along the Little Charlie Creek corridor, will improve the fish and wildlife function of those systems and increase fish and wildlife abundance and diversity, as set forth above. There will be no adverse impacts to fish and wildlife and their habitat or to the conservation of fish and wildlife, including listed species, post-reclamation, because the fish and wildlife function of the tract will be maintained and in many cases improved by the reclamation and habitat management plans. This is particularly true in light of the existing condition, hydrologic connection, location, and fish and wildlife utilization of the wetlands and surface waters on site. Therefore, Mosaic has provided reasonable assurances that the requirements of Section 373.414(1)(a)2., Florida Statutes, Florida Administrative Code Rules 40D-4.301(1)(d) and 40D- 4.302(1)(a)2., and the relevant BOR provisions have been satisfied. Mosaic demonstrated that it has reclaimed wetlands, uplands, and streams consistent with the regulatory requirements and permit conditions in place at the time the area was reclaimed. Indeed, many of these reclaimed areas, whether or not under different ownership and control or whether released from further regulatory requirements, continue to demonstrate that they are successful and functioning ecosystems. The reclamation proposed for the site is state-of- the-art, reflecting the most recent evolution of reclamation techniques for uplands, wetlands and streams, with more planning and detail that should achieve the reclamation goals faster. Many older wetland projects were designed to meet a +/- 1-foot contour and were designed with older generations of equipment and survey techniques. However, Mosaic's third party contractor's bulldozers/tractors are now equipped with GPS and sensors to enable grade tolerances within two inches, allowing for much more accurate backfilling and wetland construction. Accordingly, Mosaic's newer wetlands contain both deep and shallow areas with gradation/zonation in between. Hydrologic regimes and hydroperiods can thus be effectively created to target and achieve more specific hydrologic conditions required by certain wetland systems such as seepage slopes and wet prairies. Nonetheless, the projected UMAM scores for the reclaimed systems take into account a higher risk factor for systems that historically were more difficult to reclaim. Mosaic has provided reasonable assurances of its ability to restore the hydrology and types of vegetation found on the site and of its ability to create ecosystems that will maintain or improve the function of the biological systems proposed for mining on the site. Mosaic has restored wetlands in a variety of configurations ranging from small round depressions of less than a few acres to large complex polygons in excess of two hundred acres, as well as wetlands with low slope gradients. For example, Mr. Kiefer described and depicted Mosaic's ability to restore a bay swamp at point 84(5) at the Fort Green Mine and at Alderman Bay. Lee and Sarasota Counties focused on bay swamps in particular, but failed to acknowledge that Mosaic will be reclaiming 98.5 acres of bay swamps while only impacting 62.1 acres. Mosaic demonstrated that herbaceous and forested wetlands can be and have been restored by Mosaic and its predecessors. Mosaic has demonstrated that it can restore the various zones and depths of freshwater marshes, including shrub marshes, from the deep emergent zone to the wet prairie fringe, and has demonstrated that these zones in reclaimed marshes are providing important and key wetland functions, such as water quality, food chain support, habitat, and other functions, similar to those functions provided by site marshes. This evidence was not effectively rebutted by Lee or Sarasota Counties. In fact, Sarasota County witness Lipstein acknowledged Mosaic is proposing to mitigate for all impacts. When asked if the proposed bay swamps will be successful or unsuccessful, she replied that she did not know and, "you will have to just wait and see if it reaches that success criteria." There have been different success criteria applied in Department permits over the years, and Mosaic has demonstrated the ability to meet those changing and more stringent criteria. In the past, stream restoration was accomplished relatively simply by contouring the stream valley and floodplain to support wetland vegetation, then allowing a flow channel to self-organize. While this technique has resulted in successful streams that met Department permit criteria, it can take many years to occur. For example, Dogleg Branch (which is located on the site of another mining operation) took almost twenty years to achieve success. Mosaic has previously developed successful stream restoration projects which have been documented to provide flow regimes similar to that of natural flatwoods streams, with in- stream aquatic habitat diversity similar to or better than the stream segments proposed for mining at the site and which met reclamation criteria. Mosaic witness Kiefer demonstrated this with evidence of the functions that various reclaimed streams provided. He also showed that, in newer stream restoration projects, like Maron Run, certain functions and form, such as habitat availability, bank stability, meander, and pool-riffle sequence, are developing rapidly. Also, Department witness Rivera testified to Mosaic's commitment to achieving stream success in its efforts to retrofit certain of these earlier reclaimed streams to achieve greater function and habitat diversity. Using an average sinuosity of 1.35, over 65,700 linear feet of streams will be created as part of the mitigation plan. The foot-for-foot requirement for the reclaimed streams will be exceeded by 7,000 feet. Mosaic's mitigation proposal incorporates state-of- the-art stream restoration techniques and the post-reclamation topography to be used as guidance for the final construction plans. The guidance is based on extensive data collected from twenty-one cross sections of reference reaches within the project area, including measurements for channel dimensions, sinuosity, bankfull, and entrenchment ratios. Snags, debris, and other woody material will be placed at appropriate intervals within the channel to provide in-stream habitat and aid in-channel stabilization and development. Restored streams will have primarily forested riparian zones. Trees will be planted using techniques that will assist rapid canopy closure and aid in rapid bank stabilization. Biodegradable erosion control blankets will be used to control erosion. The streams will be designed such that the stream morphology fits within the Rosgen Stream Classification System (Rosgen) described in the reference reaches. To create a design template, Mosaic's experts carefully measured the important geomorphic characteristics of the stream segments to be disturbed. The plan incorporates, among other factors, design specifications for meander patterns, longitudinal valley and bed slopes, bank slopes, cross-sectional area, widths, depths, large woody debris, pools, riffles, bends, and sediment composition. It is the second known low-order stream creation plan in Florida to provide this level of detail. The stream plan represents an overall improvement upon the existing conditions at the site, as Mosaic is generally only mining small, shallow, intermittent stream segments of significantly lower ecological value and will create streams that are less erosive and will have greater in-stream habitat diversity and availability than the segments to be mined. Accordingly, the reclaimed streams segments will at least maintain and in many cases improve the ecological functions served by the existing segments. Special emphasis has been placed on assuring that post-reclamation soils are a suitable growing medium for the proposed reclaimed habitat. Soils will be used to closely mimic the native Florida soils profile. Mosaic witness Schuster established that proposed reclaimed soil conditions do not pose limitations on Mosaic's ability to create upland and wetland ecosystems. The soil reclamation plan uses parent materials available after mining in a sequence similar to the textural or horizon sequence in soils present at the site before mining. This soil profile will have a created topsoil layer as a suitable growing medium and subsurface layers whose thicknesses can be adjusted to achieve the drainage class, that is, hydraulic conductivity or permeability, that is needed to support the post-reclamation hydrology. The overburden used to form the lower part of the reclaimed soil sequence is native Florida soil and underlying geologic material. The overburden is excavated so that the matrix can be mined, but then the material is put back in the mined areas in a sequence that resembles native soil horizons. Where available, the top layer of the soil sequence will be a direct transfer of muck/topsoil pursuant to the permit conditions. Where donor topsoil is not available, other appropriate materials can be used if approved by the Department. Possible methods may include establishment of cover crops, green manuring, mulching, and sod placement, all of which have been demonstrated to provide organic matter and a suitable growing medium for reclaimed wetlands and will facilitate success of the wetlands. These methods comport with the requirements of Florida Administrative Code Rule 62C-16.0051(3). For reclamation, Mosaic will use various thicknesses of materials including sand tailings and overburden, depending on the area to be reclaimed and the needed hydraulic conductivity as dictated by the modeling that is required. Sand tailings will be utilized in native habitats. Sand tailings have a much higher rate of hydraulic conductivity than overburden, which is low, but not impermeable. Reclaimed soils behave similarly to native soils. On site development of soil morphology at reclaimed sites has occurred, including organic matter accumulation in the topsoil formation of redox concentrations, and other components of soil structure, which evidence that the same natural processes are present in both reclaimed and native soils. Lee County's witnesses incorrectly assumed an overburden cap that will not be present. Mosaic has provided appropriate cost estimates for financial assurances of reclamation and has satisfied the BOR requirements of providing third-party estimates and draft financial assurance documentation. The first three years of mitigation at one hundred ten percent is $3,957,356.00. This amount is determined to be sufficient. Lee and Sarasota Counties' witnesses could provide no contrary cost estimates of actual comparable large-scale projects. The proffered costs of Lee County witness Erwin were rejected in another mining case (the Ona case), they ignore the definitions of "waste" and "mining operations," and they assume mitigation requirements not found in the BOR. The evidence supports a finding that all adverse impacts, including any secondary impacts, associated with the Project will be temporary and will be offset by the proposed reclamation. All of the proposed impacts from the Project will occur within the Peace River Basin, and Mosaic's proposed mitigation will all occur within the Peace River Basin as well. Therefore, the cumulative impacts review requirements of Section 373.414(8)(a), Florida Statutes, and Florida Administrative Code Rule 40D-4.302(1)(b) are satisfied. The BMPs put into place will prevent adverse secondary impacts from occurring during mining, and no adverse secondary impacts are expected from the project post- reclamation. No secondary impacts to listed wildlife are reasonably expected to occur, based on the buffers and on the post-reclamation habitat that will exist. In summary, Mosaic has demonstrated by a preponderance of the evidence that the proposed project meets the permitting criteria of Florida Administrative Code Rule 40D-4.301 and associated BOR provisions. Florida Administrative Code Rule 40D-4.302(1)(a) requires reasonable assurances the proposed activities "will not be contrary to the public interest" as determined by balancing seven factors. See also § 373.414(1), Fla. Stat. For the reasons set forth below, the preponderance of evidence supports a finding that the public interest factors set forth in the statute and rule weigh in favor of issuing the permit. The Florida Legislature has recognized that phosphate mining "is important to the continued economic well-being of the state and to the needs of society." See § 378.202(1), Fla. Stat. Mosaic has demonstrated by a preponderance of evidence that both the public and the environment will benefit from the project as described above. Mining of the site will also result in a more general benefit to the public, including local residents. It is estimated that mining of the site will result in fifty million tons of recoverable phosphate rock reserves, which will be used to make fertilizer. Mosaic employs 272 people at its South Fort Meade facility and spends approximately $75,000.00 per employee per year for direct wages, benefits, and compensation. In addition, it has been estimated there are four to five persons employed in support industries for each direct Mosaic employee, considering contractors, vendors, and suppliers. The site project is expected to generate up to $23 million in severance taxes, tangible taxes, property taxes, and other benefits to Hardee County over the life of the mine. The evidence shows that the proposed activities will not cause adverse impacts to the public health, safety, or welfare or to the property of others. Fla. Admin. Code R. 40D- 302(1)(a)1. Witness Burleson established that the water quantity criteria in BOR Chapter 4 have been satisfied and that no flooding problems will occur. No environmental hazards or public health and safety issues have been identified. Section 373.414(1)(a)1., Florida Statutes, Florida Administrative Code Rule 40D-4.302(1)(a)1., and BOR Section 3.2.3.1 have accordingly been satisfied. The evidence established that the proposed mining and reclamation will not cause adverse impacts to the conservation of fish and wildlife or their habitat, including endangered or threatened species, satisfying Florida Administrative Code Rule 40D-4.302(1)(a)2. and BOR Sections 3.2.2, 3.2.2.3, and 3.2.3.2. The evidence shows that the proposed activities will not cause adverse impacts to navigation or flow and will not cause harmful erosion or shoaling. Fla. Admin. Code R. 40D- 4.302(1)(a)3. The evidence shows that the proposed activities will not cause adverse impacts to fishing or recreation or marine productivity, and the lakes will enhance fishing and recreation. Fla. Admin. Code R. 40D-4.302(1)(a)4. As a matter of law, Section 378.202(1), Florida Statutes, provides that phosphate mining is a temporary activity. Fla. Admin. Code R. 40D-4.302(1)(a)5. The parties have stipulated that there will be no adverse impacts on historical or archaeological resources. Fla. Admin. Code R. 40D-4.302(1)(a)6. The evidence shows that the current condition and relative value of functions of the site landscape have been significantly affected over time by agricultural activities, causing alteration of natural streams and wetlands and low fish and wildlife utilization. A preponderance of the evidence established that these negative impacts will be ameliorated by the proposed reclamation. Fla. Admin. Code R. 40D-4.302(1)(a)7. In light of the above, Mosaic has provided reasonable assurances that Section 373.414(1)(a), Florida Statutes, Florida Administrative Code Rule 40D-4.302(1)(a), and associated BOR requirements for the public interest test have been satisfied, and those criteria weigh in favor of issuing the permit. Section 373.414(6)(b), Florida Statutes, establishes the appropriate mitigation for wetland and surface water impacts associated with phosphate mines as follows: "Wetlands reclamation activities for phosphate and heavy minerals mining undertaken pursuant to chapter 378 shall be considered appropriate mitigation for this part if they maintain or improve the water quality and the function of the biological systems present at the site prior to the commencement of mining activities." Part III of Chapter 378, Florida Statutes, addresses phosphate land reclamation, and the Department has adopted specific regulations pursuant to this part, which are found in Florida Administrative Code Rule 62C-16.0051. For the reasons set forth below, Mosaic has demonstrated by a preponderance of the evidence that the reclamation and restoration standards in Florida Administrative Code Rule 62C-16.0051 have been met. The parties stipulated the Project will meet the safety standards in subsection (1) of the rule. Any temporary structures will be removed following mining and the area then reclaimed. Appropriate BMPs will also be installed. The Project will meet the backfilling and contouring requirements of subsection (2). Specifically, the evidence shows that the area will be backfilled and contoured to achieve the desired landforms; slopes will be no steeper than a 4:1 ratio; bank stabilization techniques will be used; and post- reclamation contouring and topography will help ensure that the reclamation plan and hydrologic response is successful. The reclamation will meet the requirement in subsection (3) that Mosaic use good quality topsoil when available and other suitable growing media to achieve the planned vegetative communities. The Project will meet the acre-for-acre requirement for wetlands because more acres of wetlands and surface waters are being proposed to be restored than will be impacted. The Department uses FLUCCS Category II to determine whether the minimum type-for-type requirement is met. Thus, the type-for-type requirement is met by looking at the forested wetlands acreage overall and the herbaceous wetlands acreage overall. Subsection (4) has been satisfied by the proposed CRP. While the herbaceous wetland fringe of the lakes is included in the acre-for-acre, type-for-type calculation, the open waters of the lake are not. The Project will meet the type-for-type requirement in the rule because, category-by- category, type-for-type, more than a 1:1 ratio of forested and herbaceous wetlands are being restored. As noted above, the wetlands and streams were mapped during the application process in accordance with the directives of the Department and the requirements of subsection (4). Where wetlands are directly associated with or adjacent to streams, restoration of both is integrated and included in the restoration plan. Non-wetland and wetland floodplains will be restored as directed by the Department in accordance with this rule. No natural lakes or ponds exist on site, thus the portion of this rule related to natural lakes does not apply. All natural streams proposed for impact will be restored foot-for-foot based on Rosgen Level II. More stream linear feet (65,700 feet) are being replaced than are being mined (58,769 feet). Therefore, the requirements of subsection (5) have been met. Subsection (6) has been satisfied after accounting for the Littoral Zone Variance described below authorized by Florida Administrative Code Rule 62C-16.0051(13). The design of the reclaimed wetlands and lakes will maximize beneficial drainage, provide fish and wildlife habitat, maintain downstream water quality, and incorporate a variety of vegetation and hydraulic zones. Greenbelts of vegetation are incorporated. Subsection (7) has been satisfied. There will be no water quality concerns either during mining or post-reclamation with the reclaimed streams, lakes, wetlands or other surface waters. Subsection (8) has been met; the Project is not expected to cause flooding, and the original drainage pattern will be restored to the extent possible. Subsection (9) has been satisfied with respect to waste disposal. Areas used for clay settling will be minimized, and only three CSAs are proposed for the site, as fifty percent of the clays generated at the site will be disposed of in previously-permitted CSAs in Polk County. Backfilling of mine cuts is the highest priority use for the site's sand tailings. No tailings will be sold. The evidence showed that sand tailings will not be permanently stored above natural grade, although temporary stock piles are authorized to facilitate reclamation. Reclamation of CSAs will occur as expeditiously as possible. Solid waste was not an issue in this proceeding. The revegetation proposed for the Project will succeed to achieve permanent revegetation and meets the requirements of subsection (10). Mosaic has submitted a plan for revegetation that lists species by species what will be replaced through planting or seeding into each of the different types of wetlands. The revegetation plan and planting tables provide clear guidance to the entire reclamation plan and will minimize erosion, conceal the effects of mining, and recognize the requirements for fish and wildlife habitat. Upland cover and forested upland requirements in the rule will be met under the CRP; the appropriate forested densities are set forth in the CRP and can reasonably be expected to be established within one year. Likewise, the wetland vegetative cover requirements in the CRP meet the rule requirements and can be easily met. As set forth above, the wetlands to be created are of the types Mosaic has successfully recreated in the past, and advances in reclamation and maintenance techniques will further ensure the vegetation plan is successfully implemented. The vegetative plans, including the stream plan, provide appropriate habitat for fish and wildlife. The best available technologies will be used to restore and revegetate wetlands. Furthermore, the vegetation plan meets and exceeds the requirements for the use of indigenous species. Native plants and grasses will be used in all native habitats. As required by subsection (11), measures have been identified and incorporated into the CRP to offset fish and wildlife values lost as a result of mining operations. Special programs to restore and/or reclaim particular habitats, especially for endangered and threatened species have been identified. A Site Habitat Management Plan has been incorporated to prevent adverse impacts to threatened and endangered species, and the proposed conservation easement and reclamation plan will protect and restore currently impaired habitat to a better condition. Specifically, Dr. Durbin testified with respect to the CRP requirements for aquatic species, including fish and macroinvertebrates; the best fish and wildlife habitat onsite will be preserved. Mr. Simpson testified regarding habitat preservation and reclamation activities, the proposed wildlife management plans, and the proposed enhancements to habitat that will benefit wildlife, including listed wildlife. Mosaic has sufficiently addressed the requirements of subsection (11) of the rule in the CRP. Subsection (12) has been satisfied. The proposed mining and reclamation schedule in the application documents comports with the rule requirements by including time schedules for mining, waste disposal, contouring, and revegetation, and the completion dates for such activities comport with the rules. Mosaic has proposed, and the DEP has indicated an intent to issue, the Littoral Zone Variance as an experimental technique to improve the quality of the reclaimed lakes pursuant to this subsection and Section 378.212(1)(e), Florida Statutes. Given the depth of the proposed reclamation lakes, Mosaic applied for, and the Department has proposed to grant, a variance from the water quality standard for DO in the lower portions of the lakes. The DO Variance from Florida Administrative Code Rule 62-302.530(31) is being sought pursuant to Sections 373.414(6)(a), 373.414(17), and 403.201(1)(a), Florida Statutes, which provide the minimum standards for DO levels in surface waters. Class III freshwater water quality standards apply to those portions of the site that constitute surface waters as defined by Florida law. For at least those reclaimed lakes that will connect offsite to downstream waters or wetlands (Lakes 1, 3, and 4), there is no dispute that Class III water quality standards would apply. The minimum water quality standard for DO in freshwater systems is 5.0 milligrams per Litre (mg/L). The evidence demonstrated that alternatives to the lakes in terms of both size and location were considered. The Department considered the proposed lakes as part of the elimination and reduction of overall wetland impacts on both South Fort Meade Polk and Hardee. On balance, it is a preferable alternative to use the available sand resulting from mining of the Hardee County portion of the South Fort Meade mine to eliminate lakes and create additional wetlands on the Polk County portion of the mine rather than utilize that sand to eliminate all lakes on the Hardee County portion of the site. This is especially true given the desire of Hardee County for recreational lakes and the Department's preference to reduce the overall acreage of the reclaimed lakes at the South Fort Meade mine. It is not feasible to make the lakes shallower given the available materials. There is no practicable means known or available for increasing DO in the deep pockets of lakes of the proposed depths that would not have a potential negative effect. This fact has been established and recognized by the Florida Legislature in Section 373.414(6)(a), Florida Statutes, which provides that the deep pits left by mining operations may not meet the DO criteria below the surficial layers of the lakes. The Legislature has further provided that a variance from the DO standard can be issued where deep lakes must be left as part of the reclamation plan. Id. The evidence established that lower DO levels may at times occur in the deep pockets of some of the reclaimed lakes to the same extent and effect as those lower levels occur in natural lakes of similar depths. This effect will occur only in the hypolimnion, or lower levels, of the lakes in the hotter summer months. The evidence likewise established that it is very unlikely that DO levels below 1.0 mg/L will occur at any time in any of the proposed reclaimed lakes. Provided the DO levels do not drop below 1.0 mg/L for any extended period of time, the only expected effect of the occasional seasonal reduction in DO in the lowest level of the reclaimed lakes will be to temporarily exclude fish from those lower portions of the lake during the summer months, which is also true of natural deep lakes. The evidence established that reclaimed lakes function well and provide habitat for fish and wildlife. Water quality standards will be met in all of the lakes other than occasional seasonal DO violations in the lower portions of the deepest lake. All water quality standards, including DO, will be met at all lake outlets and discharge points. All other applicable regulatory criteria will be met in the reclaimed lakes. Dissolved oxygen levels in the upper layers of the lakes are expected and required to meet the minimum DO criteria in Florida Administrative Code Rule 62- 302.530 and will be adequate to support healthy fish populations. The evidence showed no downstream impacts will occur due to the DO Variance for the lakes. The evidence showed reclaimed lakes support healthy fish and macroinvertebrate communities and provide recreational fishing opportunities. Even older lakes, such as the Tenoroc lakes (located in an old mining area in Polk County), provide substantial recreational fishing and wildlife utilization opportunities. This testimony was not rebutted. The evidence offered by Lee and Sarasota Counties as a means to increase DO levels in the reclaimed lakes actually demonstrated that artificially attempting aeration of a deeper lake can have negative environmental effects. Therefore, the testimony of witnesses Janicki and Merriam has not been credited. By a preponderance of the evidence, Mosaic proved entitlement to the DO Variance for the lakes pursuant to Sections 373.414(6)(a) and 403.201(1)(a), Florida Statutes. Given the location of the reclaimed lakes and as a means of experimenting with different reclamation planting techniques to create a variety of shorelines, Mosaic also applied for, and the Department has proposed to grant, a variance from the reclamation requirements in Florida Administrative Code Rule 62C-16.0051 pertaining to the planting of littoral shelves or zones around reclaimed lakes. The Littoral Zone Variance is being sought under Section 378.212(1)(e), Florida Statutes, from Florida Administrative Code Rule 62C-16.0051(6)(a) and (b), which provides minimum water zones for emergent and submerged vegetation, known as the littoral zones of the lakes. Subsection (6) of the rule provides for a twenty-five percent high-water zone of water fluctuation to encourage emergent and transition zone vegetation, and that a twenty percent low water zone between the annual low water line and six feet below the annual low water line to provide fish bedding areas and submerged vegetation zones. These vegetative zones are collectively known as the littoral zone of a lake. Traditionally, these percentages have been met in reclaimed lakes by sloping and creation of a uniform fringe of herbaceous wetland vegetation completely encircling the lake; however, such uniform fringes are not typical around natural lakes, which vary in composition and width. Rather than create a uniform band of vegetation around the lakes, Mosaic has proposed to reclaim the littoral zones around the reclaimed lakes by concentrating them in several broad, shallow areas, including the outlets of the lakes where such outlets occur (Lakes 1, 3 and 4). Of the proposed lakes, one will meet the littoral zone requirement, two will have over twenty percent of the total area in littoral zone, and the remaining lake will have a littoral zone of just under fourteen percent of the total area. The littoral zones will be reclaimed by constructing broad shelves of differing depths and planting the shelves with herbaceous wetland plant species. This design provides the environmental benefit of herbaceous vegetation at the outlet to provide increased filtration of nutrients or sediments of any water overflowing from the lakes during other high water events. This increases environmental benefits at the outlet of the lakes and has the potential to improve water quality downstream. Further, the proposed clustering of the littoral zones in several broad shallow shelves, rather than creation of a thin fringe around the lakes as is customary, will benefit wildlife and fish by creating a more extensive wetland ecosystem in lieu of the monoculture typically created by the thin littoral fringe. The proposed littoral zone clustering also creates more useable shoreline for boating, fishing, and recreational activities in the areas where the littoral zones are not clustered, with the added benefit of tending to separate the wildlife usage in the littoral zone clusters from the human usage in the upland forested areas of the shoreline where minimal littoral zones are planned. This is an experimental technique that advances reclamation methods by balancing habitat, water quality, and recreational considerations. Mosaic has demonstrated that the Littoral Zone Variance comports with Section 378.212(1)(e), Florida Statutes, and may be issued.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Environmental Protection enter a final order granting Mosaic's applications for the requested permits and variances. DONE AND ENTERED this 18th day of December, 2008, in Tallahassee, Leon County, Florida. S DONALD R. ALEXANDER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 18th day of December, 2008.
Findings Of Fact Petitioner, Kyle Brothers Land Company, Inc., is a land development and sales firm with principal offices located in Coral Gables, Florida. On November 12, 1980, Petitioner filed an application seeking the issuance of a permit/water quality certification by Respondent, Department of Environmental Regulation, to authorize the excavation of four canals 525' long x 2' wide each with sixteen 10' x 35' boat moorings and to complete excavation on three partially completed canals, all lying in Sections 4 and 5, Township 665, Range 29E, Big Pine Key, Monroe County, Florida. 2/ A copy of the permit application may be found as Petitioner's Exhibit 2. Petitioner's application was received by the Department on November 25, 1980, and reviewed for compliance with applicable state water quality standards, conservation criteria in Chapters 253 and 403, and rules promulgated thereunder. Additional information requested by Respondent was furnished by Petitioner in early 1981. A field appraisal of the project site was submitted by the Department staff on March 16, 1981. On April 8, 1981, the Department issued its intent to Deny the requested permit. A copy of the intent to Deny may be found as Petitioner's Exhibit 6. The Department based its intention to deny the permit on the grounds (a) applicant had not provided reasonable assurance that long-term impacts of the project would not result in violation of State Water Quality Standards for all surface waters and for Class III surface waters, and specifically including the following standards: biochemical oxygen demand, detergents, oils and greases, bacteriological quality, dissolved oxygen and nutrients, (b) applicant had not affirmatively shown the project would not interfere with the conservation of marine resources, and (c) applicant had not provided an affirmative showing of the public interest which would be served by the proposed dredging. Petitioners disputed the allegations set forth in the intent to Deny and requested a formal hearing to contest the denial of its application. That request precipitated the instant hearing. The proposed project is located within Port Pine Heights, a subdivision located on the northern end of Big Pine Key which lies approximately 25 miles east-northeast from the City of Key West. More than seven hundred lots have been sold within the subdivision since 1959 although only forty homes have been built to date. Of that total, approximately fifteen homes are located in the southern half of the subdivision where the proposed project is found. Two main canal systems have been constructed in the subdivision, each having an east-west channel that opens directly to Pine Key Channel to the west, and a number of closed-end finger canals extending to the north and south. The two east-west channels and the finger canals are artificially created bodies of water. The specific project site involves the southern canal system which is approximately six thousand feet long and fifty feet wide. It has fourteen finger canals extending from its northern side, including those to be unplugged and excavated, and twelve to the south. The finger canals are 525 feet long by 25 feet wide. The canals to be dredged lie on the landward end of the east-west channel and were constructed by blasting around 1960. A cease and desist order issued by the United States Army Corps of Engineers in 1973 halted completion of the canals at issue and they have remained either plugged or unexcavated since that time. Petitioner wishes to undertake the proposed work so that it may complete the subdivision begun in 1959. Upon completion, the six canals will have ninety-six waterfront single-family residential homesites of which twenty have already been sold. Because many homesites have more than one lot, a saturation of the area with homes is unlikely. Additionally, the construction of homes within the subdivision has been extremely slow (only forty homes built in twenty years) and no substantial increase in that pace is expected even after the project is completed. Under applicant's proposal the excavated canals will have depths of -4 feet mean low water (MLW) at the dead end increasing to -6 feet MLW at the connection of the existing fifty foot main canal, or an average depth of five feet. The existing canals are all deeper than the proposed canals. The excavation will be done in native oolite limerock and the spoil from the canal system will be used to grade the adjacent upland and form a rip-rap shoreline above the rock level. The entire area will be enclosed by turbidity screens until all work is completed. The substrate at the location is Miami oolite, a type of limestone which is characterized by the presence of fissures and hollows. Even though some groundwater-to-canal water interchange will occur, stormwater runoff has had no deleterious effects on other areas of the canal system since residential development began in the subdivision some years ago. Additionally, oolite rock is typically filled with crevices and dead-ends which hold water or leachate and can aid in minimizing the groundwater-to-canal water interchange. A modified tidal flushing analysis was performed by Dr. John D. Wang, Jr. on behalf of Petitioner in July, 1981. 3/ The analysis investigated the mixing and circulation (flushing) of tidal water in the existing canal system and determined the quantity of water exchange between Pine Channel and the existing canal system. After the project is completed, the overall flushing characteristics and concomitant water quality in the proposed system will be significantly improved. These improved characteristics are primarily due to the new canals having a favorable ratio of MLW volume to tidal prism 4/. As such, there will be higher tidal velocities and more favorable mixing between the canals and the ocean. This is Particularly true for those canals that lie closest to Big Pine Channel. Because the overall flushing time will be reduced on almost all of the system, its ability to purge itself of unwanted constituents will also improve. The Department's concern that boat slips to be cut into the sides of the new canals will cause dead areas of water is not valid. The moorings will not affect flushing because the proposed canals are sufficiently shallow to insure good mixing. Water quality tests within the existing canal system were made by Petitioner in 1980 and 1981 and by Respondent in 1981. The results of applicant's 1981 testing may be found as Petitioner's Exhibit 5, and include samplings of dissolved oxygen, temperature, oils and greases, detergents, total and fecal coliforms, biochemical demand (BOD), and nutrients. Respondent's testing included only dissolved oxygen and has been received as Respondent's Exhibit 5. Water quality sampling reflected only one total coliform and no fecal coliforms in the most developed canal in the southern canal system. Readings in the older area of the subdivision adjacent to a septic tank disclosed an extremely low bacteria count. Given the rate of growth over the past twenty years, and the almost nonexistent presence of bacteria, the proposed canals should not cause a violation of the bacteriological criterion. Measurements of dissolved oxygen (DO) in the existing canal system and offshore ambient waters were taken by both Petitioner and Respondent. Dissolved oxygen is the amount of oxygen in the water, usually measured in a liter of sea water, and is needed for respiration of animals and organisms in the water. Biochemical demand (BOD) was also measured in the existing canal system. This measures the amount of oxygen demanded by organics or organisms in the water to convert oxygen to dioxide and water. High BOD levels indicate high amounts of organic debris in the water. High BOD and a lack of dissolved oxygen would cause an anaerobic environment which would probably produce hydrogen sulfide. State water quality standards require that the concentration of dissolved oxygen "shall never be less than 4 milligrams per liter" in predominately marine waters. Rule 17-3.121(14), Florida Administrative Code. Measurements in the open canal system taken by Petitioner in August, 1980, and by Respondent in September, 1981, reflected readings of less than 4 milligrams per liter during the early morning hours. However, such readings are not unusual in natural settings such as Big Pine Key following a long period without light or photosynthesis. The values did not fall below the minimum standards in the canal system on samples taken after 10:00 a.m. Measurements taken in the ambient waters adjacent to the canal system reflected lower readings than those in the canal system. These values also increased during the later hours of the day. increased flushing in the proposed system and shallower depths will increase oxygen throughout the canals. Therefore, its construction cannot be expected to cause DO levels to drop below the present levels found in the canals and ambient waters. Indeed, the shallower canals will be strong producers of oxygen with a high degree of photosynthetic activity and will contribute oxygen to the rest of the canal system. With the exception of one BOD reading of 1.02, all were less than one unit, and may be characterized as extremely low. These levels will not be increased as a result of the proposed activity to the extent that dissolved oxygen will be depressed below 4 milligrams per liter. Oil and grease concentrations may not exceed 5 milligrams per liter under state standards. Readings taken by Petitioner in the canals and ambient waters were less than 0.01 milligrams at every station. Automobiles and boat traffic are generally the primary source of oils and greases. The Department's concern that subsequent development within the subdivision will substantially increase the input of oils and greases into the waters is speculative at best, particularly in view of the low rate of growth in the subdivision over the past twenty years, the extremely low readings in already developed areas, the fact that present concentrations would have to be multiplied 5,000 times to approach proscribed levels, and the back-sloping of lots by Petitioner to minimize stormwater runoff into the canals. Detergents are barely measureable in the existing canal system and ambient waters. In order to exceed state standards, the present levels would have to be increased at least 500 times. Although the Department expects detergents to be added to the waters through stormwater runoff and septic tank leachate, this assertion is inconsistent with present readings taken at stations near homes with septic tanks. In the context of this proceeding, nutrients may be defined as fertilizers or food for marine plants. An excess of nutrients in sea water can increase the level of biochemical demand which in turn decreases dissolved oxygen thereby causing eutrophication of the canal system. The nutrient levels of the present system are low. This was evidenced by Petitioner's measurements of ammonium, nitrates, inorganic phosphate and silicate. The low readings were present even in the older, more developed areas of the canal system. Respondent fears that development would hasten eutrophication in the canal system because bacteria and nutrients would be introduced through septic tanks and stormwater runoff. However, stormwater and septic tank leachate have had no adverse effects on the main canal system which has been in use since 1967. Indeed, continual monitoring of the system by Petitioner since 1974 reveals that the system is a thriving biological community in which nutrients are being utilized by animals at the rate the system produced them. No violation of applicable state standards is expected after the project is completed. The present canal system has a rich and diverse natural population of flora and fauna. However, all areas are not uniform in their attributes or communities. The water within the system is clear. The biological communities are more extensive and diverse within the existing canal system than offshore. Because the new canals will not exceed six feet in depth, they can be expected to develop quite extensive communities of plant life on their bottoms. Colonization of algae on the sides of the canals should occur within a few weeks after the canals are opened. The optimum level of diversity of plants and animals should be reached within four years. The amount of photosynthetic activity on the walls and bottom of the new system due to its shallow depth will contribute oxygen to the other canals within the system. The new canals will make a significant contribution to the total marine ecosystem. The method of sewage disposal utilized by homes that have been built at the subdivision is septic tanks. Septic tanks would likely be used by any new homes built in the area in the immediate future. Petitioner is willing to construct a central sewage treatment plant whenever development is sufficient to make a plant economically feasible. in Petitioner's judgment, at least thirty homes on or around the new canal system must be built before it is willing to undertake such a project. The use of septic tank by the forty homes now built in the subdivision has not caused violations of any bacteriological quality standards to date. Moreover, testing of those same standards in another canal system on Big Pine Key by Respondent disclosed that septic tank leachate had not contravened those standards. (Respondent's Exhibit 1). The addition of thirty more homes in the subdivision over an extended period of time should not increase the amount of contaminants to a level that violates state water quality standards. Petitioner commenced development of its subdivision at Port Pine Heights in 1959. The southern portion of the subdivision in which the proposed canal system is located was first platted in 1963. Five lots on the unfinished canals have been sold prior to April 3, 1970. Completion of the canals was a condition of the contracts for deed to those lots. Petitioner has unsuccessfully sought to obtain the necessary permits to complete the canal project in issue in 1974 and 1976.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the application of Kyle Brothers Land Company, Inc. for a permit/water quality certification to excavate four dead end canals and to complete excavation of two partially constructed dead end canals on Petitioner's subdivision in Big Pine Key, Monroe County, Florida, be GRANTED. DONE and ENTERED this 20th day of January, 1982, in Tallahassee, Florida. DONALD R. ALEXANDER Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 20th day of January, 1982.
The Issue The ultimate issue to be resolved in this proceeding is whether GDC has provided reasonable assurance that its proposed activities will not result in violations of the Department's water quality standards. GDC contends that its proposed activities will have either a positive effect on water quality in receiving waters, or no effect at all. The Department contends that the activities would cause a degrading of water quality and contribute to violations of water quality standards that already occur in the area.
Findings Of Fact The activities proposed by GDC are located within the Melbourne-Tillman Water Control District ("MTWCD" hereafter) in southern Brevard County, Florida. The MTWCD is a special taxing district which was established in the 1920s. It comprises a total area of 98 square miles. An extensive canal and drainage ditch system was constructed by MTWCD shortly after its creation. The purpose of the system was primarily to accomplish flood control to allow agricultural activities. The system consists of numerous "finger canals," or closed-ended drainage ditches which ultimately feed into a main east-west canal known as "C- 1." Water from the C-1 canal discharges directly into a natural stream known as "Turkey Creek" at a point in close proximity to the Port Malabar Boulevard Bridge. Turkey Creek flows into the Indian River, which is a part of the Intercoastal Waterway. The discharge point of the C-1 canal into Turkey Creek is located approximately 1 1/2 miles from the Indian River. Turkey Creek, the C-1 canal, and the other canals and drainage ditches within the MTWCD are Class III waters, as described in the Rules of the Department of Environmental Regulation. GDC acquired most of the property within the MTWCD during the 1950s. GDC remains the primary landowner within the District. After it acquired the property, GDC sought to modernize the water control system. A navigational lock and dam structure has been constructed at the discharge point of the C-1 canal and Turkey Creek. This structure, known as "MS-1," serves to regulate flows into Turkey Creek and thus serves to regulate water level within C-1 and the entire drainage system. MS-1 also serves to allow navigation into C-1 via Turkey Creek from the Indian River. A number of subdrainage basins can be identified within the MTWCD depending upon which canal drains the basin into C-1. One of these basins is designated the "C-37" basin. The primary drainage canal within the C-37 basin is the C-37 canal. The C-37 canal discharges into C-1 at a point approximately 4 miles from the MS-1 structure (the discharge point of the C-1 canal into Turkey Creek) . At least 10 separate dead-end canals or drainage ditches discharge into the C-37 canal. The C-37 drainage basin encompasses approximately 12 square miles within the MTWCD. Numerous residential structures have been constructed within the C-37 basin, and more are proposed. Water quality in the canals and drainage ditches within the MTWCD is generally poor. Dissolved oxygen levels in waters within the C-37 basin are frequently below the Department of Environmental Regulation's minimum standard of five parts per million. Dissolved oxygen violations are also common in the C-1 canal, both upstream and downstream of MS-1. It does not appear that the MS-1 structure has adversely affected dissolved oxygen levels within the C-1 canal. Some improvement has been noted in dissolved oxygen levels downstream of MS-1, probably as a result of turbulence that occurs in connection with operation of the structure that serves to aerate the water. Water quality in closed-ended canal systems such as the C-37 basin and the entire MTWCD system is typically poor. Violations of the Department's dissolved oxygen standards are common in such systems. Through its application, No. 05-21282, filed with the Department of Environmental Regulation, GDC is seeking a permit to construct a water control structure and boat lock at the point where the C-37 canal meets the C-1 canal, and to widen and deepen existing canals and drainage ditches within the C-37 basin. GDC proposes to excavate approximately 1,283,302 cubic yards of material from the existing canals and to place 38,000 cubic yards of material in the C-37 canal in connection with construction of the water control structure and boat lock. The proposed structure and boat lock has been designated "MS-3." There is now a slight dogleg at the point where the C-37 canal meets the C-1 canal. GDC proposes to fill that area and to connect the canals in a more straight-line manner through MS-3. Approximately 10 miles of canals and drainage ditches within the C-37 basin would be dredged from 1 to 8 feet. The C-37 canal would be widened from its present 10-foot channel width to 100 feet. The MS-3 structure would be designed to provide navigation in the C-37 and connecting canals. The structure would also serve to control the water levels within the C-37 system. GDC has agreed with the MTWCD to obtain necessary permits and construct the MS-3 structure. The proposed MS-3 structure is a part of GDC's overall plan for upgrading the MTWCD system. The MS-3 structure would have six 20-foot adjustable weir gates. It has been designed to accommodate a 10-year, 24-hour storm. The structure would be utilized to maintain the level of water within the C-37 basin at an elevation of 12.5 feet n.g.u.d. during the wet season and 16.0 feet n.g.u.d. during the dry season. The dry-season level would be set high in order to conserve water within the C-37 basin. The wet-season level would be set low in order to provide flood control and a gradual discharge of runoff from the basin. Water would flow from the C-37 basin into C-1 through an overflow structure. There would be a 6-foot drop from MS-3 into the C-1 canal. Existing canals and ditches within the C-37 basin typically have 2:1 slopes. GDC proposes to maintain similar slopes, or to improve them to a 3:2 ratio. The MS-3 structure and dredging and filling operations proposed by GDC are likely to cause a deterioration of water quality within the C-37 basin and a deterioration in the quality of water that is discharged from the C-37 basin in terms of dissolved oxygen levels. This degrading of water quality is likely for seven reasons. First, the canals will be deepened. Typically deeper water bodies, especially in closed-ended canal systems such as the C-37 basin, have lower oxygen levels below the surface than do shallower water bodies. Second, the water levels which GDC proposes to maintain within the C-37 basin will increase groundwater flows into the canals and ditches, especially during the wet season. Groundwater has very low levels of dissolved oxygen. Third, increased boating activity that would result because navigation in the C-37 basin would become possible would contribute to oils and greases in the water. Increased levels of oils and greases increase biological oxygen demand and reduce dissolved oxygen levels. Fourth, the C-37 basin would become an impounded water body. The result would be less mixing of the water, increased biological oxygen demand and reduced oxygen levels. Fifth, vegetation would be removed as a result of dredging activities and as a result of boating activity made possible by the dredging activities. Vegetation serves to uptake nutrients from a water body and to improve water quality. The beneficial sorts of emergent vegetation that presently exist within the C-37 basin will have difficulty reestablishing themselves once the dredging activities are completed. This is because the water bodies will be made deeper, water levels will vary sharply and because of boating activities. Sixth, erosion of the canals and ditches is likely to continue as it has in the past. The restructuring of the slopes and the loss of vegetation are likely to increase the level of erosion. Erosion brings increased sediment into a water body. Increased sediment increases biological oxygen demand and reduces dissolved oxygen levels. Seventh, the swale system proposed by GDC to capture upland runoff before it enters the canal system is not adequate to retain pollutants from the runoff and to keep them out of the canal system. As development increases, the amount of pollutants entering the system is likely to increase, and dissolved oxygen levels are likely to be reduced. Some features of the proposed project would serve to improve dissolved oxygen levels that leave the C-37 basin. As water left the basin, it would be aerated because of the 6-foot drop that would occur. This aeration would serve to increase dissolved oxygen levels. The widening and deepening of the canals would also serve to slow the velocity of flows within the C-37 basin, and thus to allow more sediments to drop out of the water that would be passed on to the C-1 canal through MS-3. While these features would serve to improve the dissolved oxygen level in water downstream from MS-3, they would do nothing to improve dissolved oxygen levels within the C-37 basin. The project is likely to cause a deterioration of dissolved oxygen levels within the basin. The features of the project that would serve to improve dissolved oxygen levels downstream are not sufficient to overcome that deterioration and, overall, the project is likely to have a negative impact upon dissolved oxygen levels downstream from MS-3. Dissolved oxygen levels within the C-37 basin and in the C-1 canal already typically violate the Department's dissolved oxygen standards. The project proposed by GDC is likely to increase the frequency and degree of water quality violations.
Findings Of Fact Background On January 29, 1981 respondent/applicant, George H. Hodges, Jr. (applicant or Hodges), filed application number 16 39644 with respondent, Department of Environmenta1 Regulation_ (DER), seeking a dredge and fill permit to generally authorize the excavation of 26,000 cubic yards of material from a 3,700 foot portion of an existing channel (Old Pablo Creek) just west of the Intracoastal Waterway (ICW) in Jacksonville, Florida. The channel then proposed was a straight channel along the northern boundary of his property. Hodges also sought to construct two boat slips, three floating docks, an 850 foot vertical bulkhead adjacent to the docks, and to dispose of all dredged material in a diked upland site. Thereafter, DER informally advised applicant that it intended to deny the application for various reasons, including the fact that the dredging would eliminate .75 acres of marsh and wetlands. After receiving this advice, Hodges proposed a series of amendments to his application in 1984 and 1985 in an effort to counter and satisfy DER's objections. The final amendment was made on September 10, 1985. As finally amended, Hodges proposed to confine all dredging to existing salt channels, thereby eliminating the objection that adjacent marshes would be destroyed. Applicant also proposed to restrict his dredging to only 2,250 feet along the northern portion of Old Pablo Creek and to remove 29,250 cubic yards of fill (silt) and sand and place the same in a 12.5 acre upland spoil site. By proposed agency action issued on February 28, 1985, DER announced it intended to issue the requested permit. This prompted a protest and request for hearing from petitioner, Jacksonville Shipyards, Inc. (JSI), which owns and operates a ship repair facility on the ICW just south of the proposed project. In its petition, JSI generally alleged that (a) Hodges had failed to give reasonable assurances that water quality standards would not be violated, (b) the project would adversely affect its property, (c) the project would have an adverse effect on the conservation of fish and wildlife, (d) the project would cause harmful erosion or shoaling, (e) DER failed to consider the long-term effect of the project on marine productivity and the cumulative impact of the project, and (f) the proposed vertical bulkhead did not meet statutory requirements. The Project The project site is a shallow horseshoe shaped creek approximately 3,700 feet in length which meanders through a vegetated salt marsh just west of the ICW in Duval County, Florida. Both ends of the creek connect into the ICW. The site is approximately one-half mile north of the bridge on Atlantic Boulevard which crosses the ICW. The ICW is a man-made channel constructed by the U. S. Corps of Engineers which runs in a north-south direction just east of the project site. It is commonly referred to as Pablo Creek. The channel or creek in which the dredging will occur is known as Old Pablo Creek (creek). An excellent aerial view of the entire area is shown in petitioner's exhibit 4 received in evidence. The creek is a predominately marine water classified as a Class III water of the State. Accordingly, it is subject to DER's regulatory jurisdiction. For purposes of this hearing, the parties have referred to the upper and lower portions of the creek as the northern and southern portions, respectively. Hodges intends to dredge the northern portion of the creek, which measures approximately 2250 feet in length from the ICW to a bend at its western end which crosses Hodges' property and where a residential site is located. According to Hodge's affidavit of ownership, he is the "fee interest owner of adjoining lands except for the dredge channel which is owned by the State of Florida". He acknowledged, however, that the residential site is owned by his superintendent, and that the marshes adjoining the most southern bend in the northern portion of the creek, and the southern portion of the creek, are owned by JSI. Except for the cleared residential site at its western end, the creek is surrounded by vegetation and salt marshes. The vegetated portion of the marsh is marked by a clearly delineated edge which separates it from the creek bottom. The dominant species of vegetation in the marsh are Juncus and Spartina. The marsh serves as a habitat and breeding ground for numerous species, including fiddler crabs, mussels, barnacles, mollusks, faunal communities and gastropods. In addition, the marsh is beneficial because of its biotic productivity and entrapment of nutrients and sediments. For this reason, the habitat should be maintained. Some forty years ago, the portion of the creek that Hodges intends to dredge was eight to twelve feet deep. However, dredging of the ICW by the Corps of Engineers and the placement of fill at the site of the Atlantic Boulevard Bridge have contributed to the shallowing of the creek over time. Today, portions of the creek are exposed and impassable under low tide conditions. Indeed, many parts of the creek are dry during the low tide phase of the ICW. At high tide, the creek is flooded to an approximate depth of four feet. Hodges proposes to dredge the creek channel to a uniform depth of five feet below mean low water (MLW) with side slopes at a 3:1 ratio to restore navigational access from his upland property to the ICW. He has represented that his use of the channel will be restricted to one, or possibly two, small boats for personal use and enjoyment. When completed, the creek channel will have a depth of nine feet at high tide, or an average depth of seven feet over a diurnal cycle. In his amended application, Hodges proposed to confine his dredging to existing creek channels, and to not disturb the actual body of the salt marsh or the vegetation bordering the creek. It is noted that there is no vegetation growing in the existing creek bottom. However, at hearing he conceded that dredging "may include some minor removal of isolated patches of grass growing in the creek channel". One such patch of grass lies in the elbow of the canal which reaches south of Hodges' property, a patch separated from the main body of the marsh by a five foot wide slough deep enough to be navigated at high tide. Hodges estimates this patch of grass to be less than 1/100 of an acre in size (10' x 40') and maintains the effect of its removal would be negligible. The excavation will be effected by means of a Mud Cat hydraulic dredge which operates by suctioning the sediment and water into a pipe. The dredge material (sediment/water mixture) will then be pumped into a series of containment cells on a 12.5 acre upland spoil site that lies approximately one-half mile northeast of the project. Any discharge from the spoil site will be to Greenfield Creek, a tidally influenced creek connected to the St. Johns River. The natural grade of the existing creek bottom is at or below the mean low water datum. At high tide the existing creek is 4.3 feet deep at its deepest point and gradually slopes upward to a depth of 2.4 feet near the marsh. The elevation of the creek where it meets the marsh is close to mean high water. Even so, the channel width does not always correspond with the mean high water line boundaries of the creek, and creek waters sometimes inundate and extend back into the marsh at high tide. Because Old Pablo Creek is tidally influenced, any water quality violations in the northern portion of the creek can be expected to also have an adverse effect in the southern portion as well. Creek Width Petitioner has raised the issue of whether the creek is as wide as Hodges represents it to be on the drawings attached to the amended application. This is significant since (a) the engineering plans are based upon the assumption that the measurements in the application are correct, (b) the proposed dimensions (depth and side slopes) of the new channel are dependent upon the existing creek having a minimum width of from sixty to eighty feet, as represented by Hodges, and (c) any excavation outside of the existing channel will result in the removal (destruction) of vegetation and marsh. In his application, Hodges reflects the top width of the creek to be sixty to eighty feet, which width will enable him to dredge the channel to an average depth of five feet below MLW, and maintain a side slope ratio of 3:1. This ratio is necessary because of the composition of the sediment in the creek. The minimum top width required to excavate a channel with 3:1 side slopes to a depth of five feet below MLW is fifty- four feet. Petitioner's exhibit 4 identifies five points along the eastern half of the northern portion which have been measured by the parties to determine the actual width of the creek. Although only five points were measured, it may be inferred that these distances are representative of the creek's width throughout its eastern half. At points five through eight, the widths are forty-nine, thirty-five, fifty and fifty feet, respectively, which are less than the measurements contained in the application. If the channel is constructed with the minimum top width (54 feet) required to have 3:1 side slopes, it will result in the elimination of 6 feet of marsh at point 5, 19.5 feet of marsh at point 6, and 4.1 feet of marsh at both points 7 and 8. This equates to the elimination of approximately .33 acres of marsh. Since the above measurements are representative of the eastern half of the northern portion, other areas of vegetation, albeit in unknown proportions, would also have to eliminated. If, for example, applicant attempts to construct a channel within the confines of the portion of the creek that has a top width of only thirty-five feet (point 6), the maximum channel that could be constructed would be V-shaped with a depth of one foot at low tide. Assuming the remaining part of the channel was excavated to -5' MLW, a stagnant area would develop in this portion of the channel and adversely affect water quality. However, to counter the problem at point 6, Hodges intends to remove one patch of grass 10' by 40' in size to achieve the desired width. Any adverse effects on the adjacent marsh at that particular point would be negligible. Because the estimated creek width is not accurate, even the agency now concedes the engineering plans are no longer useful. As a condition to the issuance of a permit, DER has suggested that Hodges be required to submit new certified engineering drawings depicting the proposed cross-section of the channel. It also suggests that the proposed cross-section comply with the top-widths depicted in applicant's exhibit 53, and depict side-slopes of three to one. It further suggests that a condition for the issuance of any permit be a requirement that the 3:1 ratio be maintained, and that other than point 6, no other grass be removed. Finally, the agency proposes that if the new plans and conditions do not permit a -5 MLW depth, the proposed depth be reduced accordingly. However, the evidence supports a finding that either vegetation must be removed at various points along the eastern half of the creek in order to maintain a 3:1 ratio for side slopes, or the depth must be reduced. By reducing the depth at certain points, stagnant areas in the creek will develop, thereby adversely affecting the quality of the water. Further, as noted hereinafter, the validity of the flushing analysis performed by applicant's experts rests upon the assumption that a -5' MLW uniform depth will be used. Finally, the applicant has not given reasonable assurance that the marsh and habitat will not be adversely affected by the elimination of the vegetation which is necessary to achieve the desired depth and concomitant 3:1 ratio. Therefore, the alternative conditions suggested by DER are neither reasonable or appropriate. The Spoil Area The spoil area to be used by applicant is a 12.5 acre upland disposal site approximately one-half mile northeast of Hodges' property. Applicant does not own the upland spoil site but has obtained easements from the owner which expire in March, 1987. In other words, he must complete all work on the project by that date or lose access to the property. The proposed spoil site is completely diked, and is sectioned off into three sections by interior dikes with overflow pipes. Internal baffles and silt fences are also designed into the area. Uncontradicted testimony established that the spoil area is "unusually well designed". Any discharge from the spoil area will be to Greenfield Creek, a tidally influenced creek connected to the St. Johns River. Discharge, if any, will be outfall from an overflow structure in the third section of the spoil area to a dump area land then by sheet flow to salt marshes adjacent to Greenfield Creek. The vegetation in Greenfield Creek consists of a salt marsh expanse of Spartina alterniTlora and Juncus roemerianus. Both species survive in and are indicative of regular introduction of saline waters, and show high tolerance to varying salinity levels. If saline waters from Old Pablo Creek were introduced into Greenfield Creek, it would have no adverse impact on the Greenfield Creek ecosystem. The size of the site was originally designed for a project of 100,000 cubic yards. The site will retain all |effluent from the dredging. The expected total effluent, both sediment and water, is roughly 5.3 million cubic feet of material, assuming a ratio of 6.7 cubic feet of water for each |cubic foot of sediment dredged. This is slightly lower than the 5.4 million cubic feet total capacity of the site. The supernatant from the discharge being deposited into the first cell of the spoil area will only flow into the next cell when the first cell fills and the level of the supernatant rises above the top of the vertical drain pipe overflow structure. If rainfall events cause the cells to fill with water during dredging and discharge operations, the discharge to the next cell or to Greenfield Creek will be primarily fresh water. This will occur because introduction of fresh rainwater into the brackish water from the dredge area will cause stratification, and the fresh rainwater will form a layer on top that will flow into the overflow structure. Turbidity Effects In removing the mud bottom from the creek to a depth of -5' MLW, some turbidity will occur. This is a natural by- product of using the hydraulic dredge. However, the amount of turbidity, and its effect on the waters at the dredge site and discharge point, are in issue. State water quality standards prohibit the discharge of water with a turbidity level greater than twenty-nine nephelometric units (NTU's) above the background levels of the receiving waters. The evidence indicates that the background turbidity levels at the creek are now in the range of ten to twenty NTV's. Excessive levels can result in adverse effects on local biota such as decreasing productivity by reducing light penetration. Excessive turbidity can also be expected to suffocate organisms. The area to be dredged contains sediment deposited from the surrounding salt marsh and carried in from the ICW. The sediment is composed of 14% clay, with the remainder being sand and silt. This was confirmed by a laboratory analysis conducted by JSI. As a general rule, the coarser the material, the faster it tends to settle out thereby creating less turbidity problems. Therefore, sand, which is of a grain size, can be expected to settle out quickly while silt takes somewhat longer. However, clay size particles are much smaller than silt and do not settle out as easily. Applicant made no laboratory analysis of sediment and consequently he erroneously assumed the mud to be sand and silt, and did not take the clay particles into account. The dredging in the creek will cause the turbidity levels to rise to 150 NTU's. However, the placement of a turbidity screen at the entrance to the ICW will prevent the release of this turbidity into that water body. Therefore, if a permit is issued, such screens should be used by Hodges at the dredge site. At the spoil site, clay size particles will also be included in the matter pumped for discharge. If these particles do not settle out, or are not treated, their discharge into Greenfield Creek (a jurisdictional water) will cause violations of the turbidity standards. To counter their effects, flocculants (chemicals) should be added when necessary to the confined material to aid the particles in settling. If a permit is issued, this should be made a condition in the permit. Dissolved Oxygen Impacts The dissolved oxygen (DO) levels in the creek fluctuate on a daily and seasonal basis. As a general rule, DO levels tend to be lower in warmer weather and during the early morning hours. Therefore, a "worst case" situation will generally occur in the summer months in the early part of the day. State water quality standards contained in Rule 17- 3.121(13), F.A.C., provide that in predominately marine waters, the concentrations of DO "shall not average less than 5 milligrams per liter in a 24-hour period and shall never be less than 4 milligrams per liter." Sampling conducted by petitioner at 5:00 a.m. in early July, 1986 during high tide revealed readings ranging from 3.06 mg/1 in the western portion of the creek to 4.59 mg/1 at the mouth of the creek. Dissolved oxygen levels in the ICW ranged from 3.94 to 4.68 mg/1. Hodges also sampled the creek and ICW in the late morning or early afternoon on August 6,1986 and determined DO levels to be 4.8 mg/1 in the creek and 5.8 mg/1 in the ICW. Testing at that hour of the day produced higher values than those found by JSI. The readings collectively confirm that DO levels in the creek are approximately 1.0 mg/1 less than the DO levels in the ICW. This deficit is primarily caused by the high oxygen demand exerted by the adjacent marsh and muds in the creek. This situation will not be changed by the dredging. The flushing time of the creek channel is an important factor in predicting post-dredging impacts on water quality. Flushing time determines how rapidly waters of the ICW will exchange and mix with the water in the creek channel. Both Hodges and JSI conducted tidal prism studies to determine how many tidal cycles would be required to flush a hypothetical pollutant to 10% of its initial concentration. Under worst case conditions, the channel is expected after dredging to flush every 3 to 4 tidal cycles or 1.6 days. Under more favorable conditions, the creek is expected to flush every 2 to 3 tidal cycles. This compares with the current system which flushes almost 100% every tidal cycle or once every twelve hours. The increased flushing time is due to the significantly greater volume of water that will enter the creek channel after dredging. Because of increased channel depths, the water will move at a slower velocity. Therefore, the oxygen consuming components have a longer period of time to react in the water column. This in turn will cause reductions in DO levels of between .7 mg/l and 1.5 mg/l in the creek. This was confirmed through tidal prism modeling performed by JSI. In this regard, it is noted that JSI's modeling was more sophisticated, better calibrated, and its assumptions were more accurate and reasonable. Consequently, its testing results are considered to be more reliable and persuasive than that of applicant. It must also be recognized that the deepening of those areas that are currently exposed at low tide will allow water to move more easily through the channel and remove some oxygen demanding sediments that now draw from a shallow water column. This will tend to have a beneficial effect on water quality. However, the overall impact of these beneficial effects is unknown, and it was not demonstrated that the otherwise adverse effect on DO will be offset or minimized by the unmeasured impact of deepening the shallow areas. Therefore, applicant has not given reasonable assurance that water quality standards will not be violated by the project. At the same time, it must be further noted that a reduction in the channel depth due to the smaller width of the creek will alter the results of the tidal prism studies, as well as negate some of the beneficial effects caused by deepening the shallow portions of the channel. To what extent the studies are changed, or benefits will be reduced, is not of record. Other Effects of Project As noted earlier, Hodges intends to use one or two boats on the deepened channel. The use of the boats will not introduce pollutants in any significant quantity. Hodges proposes to construct his docks and place rip- rap on the northern side of the widest portion of the creek channel. Little, if any, vegetation will be eliminated by these activities. The use of rip-rap for the construction of the bulkhead is the most environmentally sound means of bulkheading, and will stabilize the shoreline as well as provide habitat for aquatic organisms. The dredging of the creek channel will improve the navigability of the creek, and permit the use of boats in areas where access is now impossible under low-tide conditions. In addition, the sharp bends in the creek will prevent the operation of boats at high speeds. JSI's concern that boats may run aground once they leave the northern portion and enter the southern portion is not meritorious since few, if any, are expected to use the latter part of the creek, and the sharp bends will force boaters to operate at low speeds. Shoaling or erosion of the southern portion will not result from the proposed activities. Indeed, an increased flushing and introduction of new flow into the system may benefit the northern portion. Any situation occurring in that part of the creek should not exceed the rate of siltation occurring under current conditions. The benthic organisms which populate the bottom of Old Pablo Creek include crabs, mussels, barnacles and other species normally associated with estuarine systems. The removal of the mud bottom in the dredging operation may remove some of these organisms. However, this should not significantly change the habitat of these benthic organisms. Rapid recolonization by these species would be expected with recolonization substantially underway within forty-eight hours
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that application number 16-39644 of George H. Hodges, Jr. for a dredge and fill permit be DENIED. DONE and ORDERED this 2nd day of December, 1986 in Tallahassee, Florida. DONALD R. ALEXANDER, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 2nd day of December, 1986.
Findings Of Fact By various purchases during the period 1967-1969, Petitioner acquired over 14,000 acres of land in the eastern sector of central Florida. About 12,000 acres of the land lie in Volusia County and the remainder in the northern part of Brevard County. Petitioner registered various public offering statements for resale of this land with the Florida Land Sales Board. In 1967, pursuant to an act of the State Legislature, the Circuit Court of the Seventh Judicial Circuit of Florida entered judgment creating and incorporating the South County Drainage District which included Petitioner's land in Volusia County. Later attempts by judicial action to extend the Drainage District boundary lines to include Petitioner's land in Brevard County were unsuccessful. A 1967 agreement between Petitioner and the Drainage District provided that a drainage plan would be implemented by the District with funds for construction being advanced by Petitioner. This plan consisted of dead-end graded roads and a system of ditches and canals that were to be constructed and maintained by the Drainage District, with purchasers of the property to be assessed for the cost of the facilities. In 1972, Volusia County adopted a home rule charter which abolished the South County Drainage District and transferred its powers and functions to the county. In 1973, an agreement was entered into between Petitioner and Volusia County providing for the transfer to the county of the functions, responsibilities, and obligations of the Drainage District, and assigning to Petitioner the right to petition the State for approval of the drainage plan. Under the agreement, a Special Improvement District was created by the County (testimony of Trella, Maise1, Exhibits 1, 2, 25, 26, 27). The land acquired by Petitioner had been designated as Cape Atlantic Estates and was divided into tracts or lots in a grid system which was a series of rectangular squares with intersecting roads. Initially, the tracts were two and 1/2 acres each and eventually they were halved and sold in one and 1/4 acre plots. A typical offering statement provided that the "predeveloped tracts" were subject to road and drainage rights-of- way, and that purchasers, after paying their contracts in full, would receive free and clear title to the property. It was further stated that physical access would be obtained over rough graded dirt roads to be completed by December 31, 1973, and that when drainage facilities were completed the land would be dry. It was specifically pointed out that it was not a "homesite" offering nor was it part of a recorded plat, but offered as part of a section, township and range. However, the statement also noted that facilities such as elementary schools, churches, and fire, and police protection were available in neighboring communities. It also indicated that there was no water supply, sewage, public utilities, or public transportation to the property. Sales commenced in 1967 and, by the middle of 1971, approximately 98 percent of the tracts had been sold, primarily to out-of-state purchasers. The bulk of the sales were made by telephone contacts initiated by Petitioner's salesmen. Some 5,000 purchasers bought tracts in the development on contracts which were of eleven to twelve years in duration. The property in question is described as coastal low lands that consist of essentially level terraces. The surface drainage of the land is poorly-developed and inefficient. The terraces begin at the Atlantic Ocean on the east and progress westward to a maximum altitude of about 29 feet in the project area. The Atlantic coastal ridge functions as a divide between the St. Johns river and the coastal drainage basin called Turnbull Hammock. West of the ridge, surface drainage generally is toward the St. Johns river, and east of the ridge drainage is into Turnbull, Hammock which leads to Turnbull Creek and thence to the Indian River. The region has large swamp and marshland areas and sandy surface soils which are intermittently underlain by hardpan at shallow depths which impedes rainfall infiltration. Much of the area is covered with ponds during the wet season creating swampy conditions. The climate supports heavy growth of native pine and scrub oak trees in the sandy soils. Cypress trees prevail in the wet bottomlands. Turnbull Hammock occupies the eastern quarter of the tract and is flat and heavily-wooded. It serves as a catchment for surface runoff from the lands immediately to the west and also for lands outside and north of the project. The Turnbull Hammock natural drainage basin involves about 48 square miles. Highway 1- 95 - traverses the center of the area in a north-south direction. The land is in a primitive state and is mostly unused with the exception of minor cattle grazing areas. Subsurface water leaving the Cape Atlantic Estates to the east surfaces in the Turnbull Hammock and drains to the south into the Indian River. On the west side, the tendency of the water is to move west and surface in cypress sloughs, eventually reaching Buck Lake, an area to the southwest. During flood conditions, when surface waters are high, the western subsurface water could make its way in time to the St. Johns River. The original drainage plan was aimed at decreasing the retention of surface water and using controlled measures to improve runoff in order to prevent flooding and soil erosion. Some nine percent of the property has standing water or ponding and, although in many of the sand ridges, this is not a serious problem because the rainfall quickly dissipates into the soil, in those areas were the soil is heavily interspersed with hardpan, there is slow percolation. Some 26 percent of the land area floods during rain showers. The plan was to remove the standing surface water by a network of canals, ditches and swales and, to achieve these goals, regulating devices were to be installed at two major discharge points of the system. The plan incorporated a main canal located just west of 1-95 which would drain the western Volusia County portion of the project area through an existing 9' X 12' double box culvert under 1-95 into a north outfall canal and ultimately into Turnbull Hammock. The remaining portion of the western section, some 2300 acres in Brevard County, was planned to be drained to the south whereby water would exit the property through a 142 acre storage reservoir that was considered to have sufficient capacity to retain the water during a 50 year flood condition and yet not exceed the existing natural discharge rate. Since Turnbull Hammock is considerably lower than the western side of the property, a self regulating control gate was considered necessary to maintain the water level of the canal in Volusia County at a level of 21 feet mean sea level. In the Brevard County portion, the main canal water level was designed to be kept at an elevation of 20 feet mean sea level by a fixed control structure at the reservoir discharge. It was planned that water would be collected from the area by lateral swales and ditches which would flow into the main canal (testimony of Trelia, Garcia; Exhibits 2,3,4 & 15). The main canal for the project was constructed in 1970. This canal generally parallels the west side of 1-95 in the project area and is approximately 14 1/2 miles in length, some 90 to 100 feet wide and five to six feet in depth. It had been estimated that all the improvements for the project would be completed by December 31, 1973. In early 1971, the Drainage District was in the design stages for the next phase when it learned that Volusia County had adopted the home rule charter that abolished, the South County Drainage District. At this point, work on the project stopped and nothing further was done toward completion of the improvements to the land. In the middle of 1972, after negotiations with Volusia County, Petitioner became aware that various state agencies, same of which had come into being since the original purchase of the land, might have some responsibility in connection with the project. The Department of Pollution control, Department of Natural Resources, the Game and Fresh Water Fish Commission, and the Trustees of the Internal Improvement Trust Fund were contacted to see if they had any requirements as to the proposed improvements. The Department of Pollution control was the only agency which expressed an interest or concern in the matter. Petitioner also ceased sales in the middle of ;1972 after discussions with the Florida Land Sales Division, because of the uncertainty of the situation at that time. During the remainder of 1972, Petitioner's representatives had various discussions with officials of the Department of Pollution Control at Tallahassee, but was advised that nothing definitive could be accomplished on the drainage plan pending a resolution of the status of the South County Drainage District which was in litigation at the time. Around October, 1972, as a result of discussions with various county officials and the Department of Pollution Control, Petitioner decided that an environmental impact study would be, beneficial and therefore retained the services of Brevard Engineering Company of Cape Canaveral, Florida, to make such an environmental assessment of Cape Atlantic Estates. This report was completed in February, 1973, and transmitted to the Department of Pollution Control in April. Although there were numerous conversations with Tallahassee representatives of the Department of Pollution Control during the remainder of the year, it was not until early 1974 that petitioner was advised it should start discussing the matter with the Department's central regional office in Orlando. A meeting was held at Orlando between Petitioner's representatives and officials of the regional office in March, 1974 at which time the details of the project were reviewed. Mr. Woods, the regional engineer for the Orlando office at that time, indicated that he wished to study the matter further because he was not familiar with the environmental study which had been received from their Tallahassee office. There followed a field trip to the project area where Mr. Garcia, the project engineer,, and two members of the Orlando regional office of the Department, Mr. Hulbert and Mr. Medley, looked over the area. In April, 1974, there was another meeting with Mr. Woods at which time he indicated that the project would be approached by the Department as a potential pollution source at any points where the waters went outside the property boundaries. This was followed up by a letter from Mr. Woods received by Petitioner in June, 1974, which stated that in view of the primary interest of his office to protect and preserve water quality as to the project, it was recommended that strong consideration be given to modifying the drainage plan to allow for reduction in the following areas: Draining of swamps, marshes, and wet lands which is in general detrimental to water quality by the removal of natural filtration and assimilative systems from the service of treatment of stormwater runoff. Introduction of canals and artificial waterways degrade water quality by virtue of their stagnating effect and general magnification of adverse effects in (1) above by lowering the ground water table. Transporting of water across natural barriers and separate watersheds is generally detrimental to water quality by virtue of a net change of flow patterns and characteristics by reducing or increasing the normal waterbudget in the area. Mr. Woods also pointed out in his letter that, although it was recognized the gridiron pattern of the project made maximum utilization of the available land his office felt that a significant reduction in adverse effects as indicated could be achieved by utilizing the natural systems as much as possible, and that this would require maximum utilization of the existing wetlands, provisions for on-site retention if and where practical, and selective planting to provide for natural filtration and nutrient assimilation. He further indicated that it would be necessary to obtain a water quality certification from his Department, that Petitioner must show the facilities would be properly constructed and operated, and would be required to produce evidence that either the county or the drainage district was in a position to assume responsibility as the permittee (testimony of Trella, Garcia; Exhibit 10). After receipt of the letter from Mr. Woods, Petitioner engaged the firm of Frederic R. Harris, Inc., consulting engineers, of Ft. Lauderdale, Florida, to prepare a definite project report on drainage that would provide modifications of the drainage plan in order to comply with the objections posed in the Woods letter. This report as prepared by John W. Blue, professional engineer and, although dated September 1974, was available in final form in August at which time a meeting was held between Petitioner's representatives and the successor regional engineer in Orlando, Mr. Thomas Hunnicutt. The meeting was held on August 6, and in attendance were Mr. Gene Medley and Mr. James Hulbert of the regional staff. At this meeting, Mr. Hunnicutt was acquainted with the project and the letter from Mr. Woods, and given the "Harris" report for consideration. This report reflected Petitioner's attempts to satisfy the objections of the department by incorporating the following features in the plan: Specifications to prevent the conveyance of oils, chemicals, silt or other pollutants into the drainage waters during project construction. Planting grass on the erodible earth surfaces exposed during construction. Preservation of about 200 acres of natural hammock ponding sites. Designation of about 75 acres of natural overflow retention areas for filtration of roadside ditch runoff. Construction of about 70 acres of artificial overflow retention areas for filtration of lateral and runoff. Provision for about 209 acres of natural water spreading areas at canal and outfall terminals. Avoidance of direct connections between drainage canals and watercourses or estuaries. Utilization of about 127 acres of dug ponds and existing borrow pits for regulation of runoff peaks. Overexcavation of canals and laterals to make permanent ponds. Whereas the report of the Brevard Engineering Company had been based on a 50 year flood condition, the Harris Report was based primarily upon 10 and 25 year flood conditions. There was a misunderstanding as to Mr. Hunnicutt's comments to Petitioner at this meeting. Petitioner claims Hunnicutt had then stated that the project was in good order and that they should proceed to file their application for a permit. On the other hand, Hunnicutt testified that his remarks were predicated on the fact that since Petitioner had indicated it had made all of the modifications in the project that could he done (by virtue -of the grid system that could not be modified) , he therefore felt there was no point in further discussion. He also was of the opinion that there was sufficient information available at that time to permit consideration of an application by the Department. The Petitioner was provided blank copies of a form entitled Application To Construct/Operate Pollution Sources" (Exhibit 5), and, although Mr. Hunnicutt then acknowledged that this form did not apply too well to the endeavor under consideration he told Petitioner that they should go ahead and file the forms, at Tallahassee, attaching all supporting evidence. The application was filed in the joint names of Volusia County and Atlantic International Investment Corporation and signed by the president of the corporation. It was dated September 9, 1974, and submitted and delivered to the Respondent in Tallahassee on September 10, 1974, with a copy being given to the Orlando regional office. Other than receiving a letter dated October 25, 1974, from the Department of Natural Resources indicating that a water quality certification would not be required for the project, Petitioner heard nothing further from the Respondent until it received a letter from Mr. Hunnicutt denying the permit, dated November 6; 1974. This letter said that the regional staff had reviewed the application and based thereon, plus reviews and comments from Brevard and Volusia County Environmental Control, the permit was recommended to be denied because the applicant had not given the Department "reasonable assurance that the results of this project will be in accord with applicable laws, rules and regulations" and that the project "will have significant adverse effects on water quality as well as the aquatic resources in the area. It further stated that pursuant to Chapter 403.087, Florida Statutes, and Chapter 17- 4.07, Florida Administrative Code, the permit was denied and that Petitioner had a right to request a hearing as provided under Chapter 17-4.15, Florida Administrative Code. Petitioner filed its petition for review of the denial of the permit under the aforesaid Chapter 17-4.15, Florida Administrative Code on November 15, 1974 (Exhibits 4, 5, 6, 10, 11, 16; testimony of Mr. Garcia, Mr. Hunnicutt). In processing the application, Mr. Hunnicutt assigned it to Mr. Medley of his office for review. Medley proceeded to contact local agencies including the Volusia County and Brevard County Environmental Sections; Volusia County Public Works Department, St. Johns Water Management District, the Volusia County Environmental Task Force, and the Florida Audubon Society. He testified that all were opposed to the project for various reasons. Aside from the materials attached as exhibits to the application by Petitioner, which consisted of the Brevard Engineering Report, the Harris Report and plans and specifications and chemical test results taken by Department representatives from sample waters ,of the main canal the additional written materials before the Department prior to the, denial of the permit consisted of a letter from Mr. Kinloch, Pollution Control Coordinator of Brevard County, dated October 31, 1974; a letter from the Volusia County Environmental Task Force (a private group of about 25 professional persons who are concerned environmentalists) dated November 4, 1974; and a statement from Cherie Down a biologist with the Brevard County Health Department, dated September 6, 1973 (Exhibits 17,19 and 24). A letter from Gregory Camp, Environmental Control Officer of Volusia County, dated November 5, 1974, was not received in Respondent's Orlando Office until November 7, and therefore was rejected as an exhibit (Exhibit 18 for identification). In addition, Mr. Camp's conclusions were said by the Assistant County Attorney for Volusia County as not being authorized by the County Commission (testimony of Mr. Stuart). About a week before issuance of the denial letter, a meeting had been held at the Orlando Regional Office attended by its chief, Mr. Senkevich, Mr. Hunnicutt, Mr. Hulbert and Mr. Medley. The purpose of the meeting was to arrive at a decision concerning Petitioner's application. The procedure at the region was for the staff to decide the issue involved and then to assign an engineer in charge -- in this case, Mr. Hunnicutt -- to sign the decision letter to the applicant. No minutes of this meeting were made and the decision was a collective one by Mr. Hunnicutt, Mr. Hulbert, and Mr. Medley. They expressed their common opinion at the meeting that the permit application should be denied primarily because of considerations of water quality. Mr. Senkevich testified that he had the authority to overturn, the recommendation of the staff, but since his staff had unanimously concurred in the denial, he felt that their decision was correct. He is a civil engineer and primarily an administrator, but is not familiar with chemistry, biology, or hydrology. At the time, he erroneously believed that hydrological tests had been made by his staff as to the project and was of the incorrect, view that waters of one classification must flow into receiving waters of the same classification. He conceded at the hearing that he had only briefly studied the plan prior to the meeting and indicated that he had been concerned that the project area eventually would be developed with homes that would require septic tanks and cause a considerable problem with the degradation of water in the canals. He therefore was concerned that the canals would not maintain the requirements for Class III waters. He was unfamiliar with the aspect of danger to aquatic resources other than he felt that the main concern had been regarding trees in the area. He recognized that permits could be issued with specified conditions reasonably necessary for the prevention of pollution and that this could have been done, with respect to Petitioner's project. However, he felt that if this were done, it would usually be hard to enforce and so it was easier to insure that the project conformed to requirements at the time of construction rather than attaching conditions to the permit. He believed that if some of the project area which had not been sold could have been utilized for retention of some of the storm water runoff to provide for percolation or water storage, and if certain low areas could have been utilized for something other than lots, this possibly would have cured the objections of the staff. He did not feel that the changes which had been made by the Harris Report were sufficient to overcome the staff's objections to the project. He acknowledged that water tests in the main canal made by the Department since it had been built and prior to November, 1974, had shown an improvement in the canal water quality. He also acknowledged that none of the five criteria for control of storm water runoff set forth by the Department of Pollution Control in an April 1974 memorandum to regional offices (Exhibit 13) were violated by the proposed project (testimony of Hunnicutt, Senkevich). Mr. Medley, a biologist of the department and the project officer for review of Petitioner's application testified that he was mainly concerned because the project was designed in such a way as to eliminate wetland areas that treat and filter stormwater runoff prior to entry into the Hammock area and provide a place for wildlife to propagate. He felt that water and wildlife quality would diminish by reason of the accelerated flow of water caused by the canal system. This would take place by creating an unstable habitat in which there would be less of a variety of organisms by virtue of polluted waters entering the area. Such a condition would reduce the diversity and quality of species of organisms. He also felt that if water was diverted from one basin to another, it would have an adverse effect on biota because of the change in flow. He further believed that the failure of the applicant to address the question of future development of the project area was significant because once development occurs, canals get storm runoff from surrounding areas, become stagnant and high in nutrients. The state is then obliged to insure water quality and has been unable to do so in other projects of a like nature. He also was concerned because the reports attached to the application contained inaccuracies and it was difficult to determine what was reliable and what was unreliable information. His testimony showed that he, too, was under the erroneous impression that a member of the Department had assessed the hydrological aspects of the project when the Department was processing the application, and acknowledged that it would be difficult to determine if water would be degraded until the actual construction had been completed. However, he expressed his opinion that there is presently insufficient technology to create any canal system that would provide water quality to meet state regulations and it was his belief that wetlands should stay as they are in the interest of water quality. At the hearing, he was unable to describe the proposed canal systems for the project or the proposed vegetative filter area at the end of the canal (testimony of Medley) Mr. Hulbert, another Department bilogist, testified it was unrealistic to think that the project would not eventually be developed with hones. His concerns basically were similar to those of Medley concerning canal water quality in the future and as to inconsistencies in reports submitted by the applicant. He felt that the basic problem was the project grid design with canals following such design rather than natural drainage contours, but that modifications could have been made in the design to satisfy the Department's objections if additional buffer zones had been created along and adjacent to the proposed canals. However, he would not have recommended a permit under any circumstances because of the objections of Brevard County and Volusia County. It was his position that in such a situation the Department should deny the permit and then let the matter be determined by a Hearing Officer. He conceded that he had not examined data submitted by either county and that there was, in fact, no data submitted from Volusia County (testimony of Hulbert). Mr. Hunnicutt, the regional engineer, who is an environmental engineer, testified it was the concensus of all at the meeting that everything they had seen pointed to the fact that project drainage couldn't provide water quality sufficient to meet state requirements. His most objectionable aspect of the project was the drainage pattern and the fact that the canals had to be rather deep and did not follow natural contours, because deep canals below the water table would have standing water and no vegetation as would a more shallow drainage system. He felt that the areas of vegetative growth added by the Petitioner in the Harris Report were not large enough and would not be too effective in removing pollutants by the fast flow rate. He also was concerned about inconsistencies in the applicant's exhibits and saw no point in obtaining more test results on peripheral issues because the Petitioner was "locked in" to a deep canal concept. He, too, was under the mistaken notion that the project had been considered by a hydrologist of the department. Although he felt there were changes that could have been made which would warrant issuance of the permit, there was no point in telling the Petitioner about these because its representatives had said they couldn't make any more changes due to the existing grid system. He also agreed with Hulbert that if local agencies objected as they had in this case, the Department would deny the application but that when such objections were received, they were generally in accord with the existing view of the departmental staff. He testified that the question of the impact of the project on shellfish harvesting in the Indian River was not a serious consideration in his mind insofar as denial of the permit was concerned. He acknowledged that a permit could be issued with conditions, but the problem then became whether the applicant could maintain control effectively to enforce the conditions (testimony of Mr. Hunnicutt). A number of expert witnesses of various disciplines were called by the parties to, testify concerning the various ramifications of the proposed construction by the Petitioner. The following findings of fact are made with respect to specific material aspects of the case: The construction of homes on the tracts at Cape Atlantic Estates in any appreciable volume or any extensive use of the land in the next ten years is highly unlikely. This is due to time required for construction of the drainage facilities, and to the fact that most of the land contracts will not be paid out until the 1980's since owners of the tracts will not secure possession of their land until they have completed payment therefor. The land is not suitable for the installation of septic tanks because of the shallow soil and building permits will not be issued because of the dead-end roads in the project and the absence of paved roads ajoining the property (Exhibit 2, testimony of Trella, Maisel, Blue and Ford). It is impossible to state precisely what the impact of construction of the canal system, roads, ditches, retention ponds and control devices envisioned in the drainage plan will have on the water quality of the canals, Turnbull Hammock, Turnbull Creek, and the Indian River. Drainage of the land area by the construction will produce changes in the environment, but also will make the land accessible to owners, and to some extent may benefit the owners of nearby parcels by draining surface waters and lessening salt water intrusion. One owner of adjoining land objects to any changes in its present natural state (testimony of Blue, Hudson, Stock, Medley, Hunt, Kuperberg, White, De Wees, Fogel & Davenport) Draining and developing the project area will change the surface water flow characteristics by reducing the amount of time water is concentrated or retained in the natural area. This will undoubtedly increase the peak flows and volume of water generated from the area as compared with natural discharge. However, this increase will not exceed the capability of Turnbull Hammock to accept these flows, and increased quantities of waters in the Hammock probably would be beneficial by improving its soil conditions. The increase in peak flows and runoff volumes attributable to the project will not exceed 16 percent of the present ten year storm runoff into the Indian River. In terms of groundwater, recharge in the Cape Atlantic Area occurs only on the Atlantic Coastal ridge. A lowered water table, the result of improving drainage, will decrease the fresh water lead thereby reducing recharge. However, the water table will be lowered only one or two feet and if it is maintained with control structures at these levels as contemplated, improving drainage will not have a serious effect on the quality or quantity of the non-artesian water in the shallow aquifer in the area. The water from approximately 80 percent of the land area will flow into Turnbull Hammock and, in the southwest section of the project area, the water will be held in retention ponds and eventually released in a natural flow. Some water will go to the west toward the St. Johns River basin but it is impossible to tell how much flow this will be. The project will have no significant effect on Lake Harney and it is too far removed from the St. Johns River to have any great impact on its conditions. The drainage of the middle area of the project is ill-defined and water can flow either east or west, depending on how much rain has fallen. In the flat area to the north, water can run in both directions. Passage of water through the designed holding areas vegetation, and then reoxogenation in the canals and spreading systems to Turnbull Hammock will improve surface water quality at the site by creating motion. The roadside swales which bring water to the middle lateral canals will lower the ground water table several feet and this may well improve the water system because presently it is ponded and evaporates or filtrates into the atmosphere. Evidence of some salt water intrusion at the lower end of the Hammock area is evidenced by decayed cypress trees which are not salt water tolerant. Additional fresh water in the Hammock would improve this condition (testimony of McElroy, Blue, Clark, Hudson, McClouth; Exhibit 22). Although the waters in the main canal may not always have met all of the regulatory criteria for Class III waters under Department regulations, its quality has improved over the past several years, particularly with respect to the presence of dissolved oxygen. This is in keeping with the opinion of the experts who agreed that construction produces a temporary. adverse effect on water quality, but the waters soon stabilize and vegetation thereafter appears. When the canal system is completed and connected, a natural flow of water will occur to wash out minerals and other harmful substances, and increase the amounts of dissolved oxygen in the water. It is therefore considered unrealistic to use the test reports obtained from water samples in the present dead-end main canal because they cannot be considered representative of the quality of the water that will be present when the drainage system is in operation. Although it cannot be determined what the exact quality of the canal waters will be when in full operation, there are certain projected consequences which reasonably may be considered likely to occur. After construction of the drainage facilities, the flow of water Bill accelerate and this, in turn, can diminish the quality of animal and plant life to some degree in the Hammock area by reducing the diversity of species. The Hammock is normally anaerobic and nutrients are assimilated there to produce trees, low-lying vegetation, and animal life. Although an increased flow of fresh water will be beneficial to dominant trees, low-lying vegetation might suffer somewhat with a consequent impact on the organisms that feed upon them. However, this is a temporary condition during heavy rain and the degree of change in organisms depends on the frequency of flow and how long the water stays in the Hammock area. Added fresh water in the Hammock will reduce salt water intrusion with consequent beneficial effects. The Hammock can receive a flow of at least two times as much water as is now present during rainfall without adverse effects on the environment as long as urban development has not occurred to produce pollutants in the form of chemicals, tars, oils, and other wastes. Although several expert witnesses foresee eutrophication of the water in the main canal during stagnant periods of the dry season and then flushing of undesirable materials and nutrients accumulated by the eutrophic process into the Hammock during the wet season, the designed holding structures with shallow margins to encourage vegetation and the increased use of natural areas at the north outfall of the project area will filter and reduce substantially the amount of any undesirable material entering the Hammock. Canal systems with standing water are sometimes prone to eventually becoming clogged with aquatic plant life, such as water hyacinths and hydrilla. This, in turn, requires periodic destruction of the plants, usually by chemicals, in order to permit waterflow to continue. Though this possibly may be expected in the main, canal at some point in the future, the planned vegetative filtering system should control excessive entry of the chemical and other pollutants into the Hammock. During the period 1970-74, there was no growth of such plants in the dead-end main canal and no indication that it had become eutrophic (testimony of Blue, Morris, Clark, Hudson, Medley, Hulbert, Down, Stock, Ross). Although the area where Turnbull Creek enters the Indian River is designated as Class II waters, oysters or other shellfish are not present to any extent in the designated area. The designated shellfish harvesting area is in the Indian River south of the Brevard County line. The Indian River is moderately high in salinity and a wedge of this water goes into Turnbull Creek and then to the Hammock. The mixing zone of water is at the entrance of Turnbull which flows into the Indian River. Beyond this mixing zone where fresh water meets salt water, if shellfish exist, the limited amount of fresh water entering the river would have no significant effect upon their growth. Oysters need between ten to 30 parts per thousand salinity in the water for best growth and if the project water flowed into the Indian River the salinity would remain the same approximately 20 to 30 parts per thousand. In fact, a decrease in salinity in the water to some extent favors growth of oysters. However, increased rainfall and runoff can increase bacterial counts in shellfish and decrease the incidence of shellfish predators (testimony of Clark, Kinloch, Down). No significant diversion of waters from the Cape Atlantic Estates areas from natural drainage basins can be established other than some diversion in the eastern portion of the project area. Other than that the flow of ground water cannot be determined with accuracy and, in any event, the project would have little effect on surrounding lakes in the St. Johns River basin. Diversion would seldom occur except when there is a major storm because unless rainfall exceeds one or two inches an hour, it normally will be absorbed by the sandy soil (testimony of Blue, McClough, Hudson).
